1988 PLP 1925 (CLC)

Ahmad Din v. Muhammad Shaft and others PLD 1911 SC 762 and Ahmad v. Mst. Fateh etc. 1981 CLC 34 cited. Mst. Zarifan v. Mst. Rehmati 1987 SCMR 66 ref. Ch. Muzammul Khan for Petitioners. Ch. Mushtaq Ahmad Khan and Malik Amjad Pervaiz for Respondents. Date of hearing: 28th February, 1988. This Civil Revision assails the judgment/decree dated the 1st of December, 1985 of the learned Additional District Judge, Sialkot, whereby the respondents‑defendants' appeal was partly accepted and the petitioner‑plaintiff's suit was partly dismissed.

2. The dispute related to inheritance of Fatoo. The petitioner /plaintiff Nazir alleged that the respondent Irshad Begum was not the daughter of his father Fatoo deceased and that she had wrongly been given a share in his 'tarka' vide Mutation No.25 of the 29th of May, 1970. The suit was opposed by the respondent asserting that she was a daughter of the deceased Fatoo and that she had rightly been given a share in his property. She also pleaded bar of limitation against the suit.

3. Appropriate issues were framed on these pleadings and the trial Court decreed the suit but in appeal the. learned Additional District Judge held that the respondent was a daughter of the deceased and as such was entitled to inherit him. The plea of limitation. was repelled observing that the suit was in time.

4. Ch. Muzammal Khan for the petitioner laid stress that evidence particularly of the respondent was not read in true perspective inasmuch as it sufficiently established that she was not the deceased's daughter and that instead she was begotten by her mother Mst. Sharifan of her second husband Allah Rakha whom she married after having been divorced by the deceased Fatoo in his lifetime. I have perused the evidence with the assistance of learned counsel. The sole point which weighed with the learned Additional District Judge to reverse the finding .of the trial Court was that the respondent Irshad Begum had not been treated to be daughter of Allah Rakha at least when his inheritance devolved on his demise. The record shows that on Allah Rakha's death, Mst. Sharifan was treated as his widow and indeed had the respondent Irshad Begum been his daughter, ordinarily she must also have been given a share therein. Apparently it was a big indication of negativing the contention of the petitioner that she was born of Allah Rakha, the second husband of Mst. Sharifan. No plausible explanation was offered to account for this anomaly. Thus, even if other evidence showed something to support the petitioner's plea, it was held inadequate to dispel the conclusion drawn from depriving the respondent in the context of Allah Rakha's devolution. It is a revision petition in which, entering into reappraisal of evidence is not permissible nor can any conclusion drawn by the lower appellate Court be upset merely because an opposite view was also feasible. In other words, the lower appellate Court had ample justification to dwell upon the above‑mentioned circumstance in drawing an inference against the petitioner and such a view will not be treated as capricious or arbitrary in terms of Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (P L D 1970 SC 139) and Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53).

5. Ch. Mushtaq Ahmad Khan, Advocate tried to support the decree even on the point of limitation. His contention was that the sale‑deed was not directly attacked and that the limitation to challenge it was six years under Article 120 of the Limitation Act. The sale was made on the 16th of November, 1970, whereas the suit was instituted on the 19th of July, 1977, that is beyond six years. He placed reliance upon Ahmad Din v. Muhammad Shafi and others (P L D 1971 SC 762) and Ahmad v. Mst. Fateh etc. (1981 C L C 43) in this behalf. I am afraid the rule seems to have undergone a substantial change as lately in Mst. Zarifan v. Mst. Rehmati (1987 S C M R 66) it has been observed that unless assertion of the plaintiff 'of being in possession all along is "found to be untenable:, his suit though brought twenty‑four years after attestation of mutation of inheritance could not be dismissed by counting limitation. under Article 120 of the Limitation Act from the date of the mutation. The rule is that when he in his own subjective satisfaction apprehends his dis possession, he may like to institute the suit. Here both the parties claiming inheritance as they are from a deceased propositus, will be deemed to be simply co‑sharers, one holding for the other. It cannot be urged that the petitioner was not in possession of the land and[ as such was in all events obliged to assail the sale‑deed from its date. Conversely he may have kept sitting complacently to choose any time to bring the suit. There is no merit in this contention.

6. However, there has been some mistake in allocating shares to both the parties. The respondent as sister will get only 1/3rd alongwith the petitioner brother but she has been, in fact, given 1/2 which was in excess of her due share. The revision petition is thus partly accepted so as to modify the respondent's share in the deceased's inheritance. She will get now 1/3rd while 2/3rd will be retained by the petitioner. Parties are left to bear their own costs. S.Q./N‑121/L Petition partly accepted.