2004 PLP 1783 (SCMR)

ABDUL HAMEED DOGAR, J.

This petition is directed against the judgment, dated 14-1-2002 passed by a learned Single Judge of the High Court of Sindh, Circuit Bench Hyderabad, whereby Revision Application No.244 of 1999 filed by the petitioners was dismissed.

2. The relevant facts for the disposal of the instant petition are that respondent No.1 Mst. Sardaro was married with deceased Yar Muhammad Shah, brother of petitioners in 1953. The couple lived together for sometime and thereafter they started living separately. In the meanwhile Yar Muhammad Shah died on 13-2-1981. After the death of Yar Muhammad Shah. respondent No.1 being widow of Yar Muhammad Shah deceased, was receiving family pension. She applied to Mukhtiarkar for mutation of her name in the Record of Rights in respect of the agricultural land left by Yar Muhammad Shah. The mutation was made in accordance with Sunni personal law. Thereafter, she applied for partition of the land and notices were issued to the petitioners. Whereafter petitioners filed suit for declaration and injunction asserting therein that deceased Yar Muhammad Shah was Shia by faith and that respondent No.1 had no issue, therefore, according to law of inheritance of Shia Sect, she was not entitled to inherit the landed property left by the deceased. A declaration was also sought to the effect that petitioners were the only legal heirs of the deceased Yar Muhammad Shah and were entitled to inherit the agricultural land to the exclusion of respondent No.

1. It was pleaded in the suit that the order of mutation passed by respondents Nos.2 and 5 in favour of respondent No. 1, as heir of deceased Yar Muhammad Shah was illegal. Respondent No.1 in her written reply refuted all the allegations and stated that deceased Yar Muhammad Shah was not Shia by faith and in fact he was Sunni. Learned trial Court vide judgment dated 26-10-1995 decreed the suit of the plaintiffs/petitioners. Feeling aggrieved, respondent No.1 filed first appeal which was allowed by the learned Additional District Judge, Hyderabad and reversed the findings of the trial Court and dismissed the suit. Against the said judgment, petitioners preferred revision application before learned High Court of Sindh Hyderabad Circuit Bench, Hyderabad which was dismissed vide judgment impugned.

3. We have heard Mr. Abdul Rahim Kazi, learned Advocate Supreme Court for the petitioners, respondent No.1 Mst. Sardaro in person and have gone through the record and proceedings of the case in minute particulars.

4. It was mainly contended by the learned counsel for the petitioners that the legal and factual aspect of the controversy have not been appreciated in its true perspective by the learned Judge in Chambers which resulted in serious miscarriage of justice. According to him in view of provisions of Mohammedan Law, a childless widow is not entitled to inherit the landed property left by deceased husband belonging to Shia Sect, as such, respondent No.1 was not entitled to any share in the landed property.

5. Since the above plea was raised and agitated by petitioners in their suit as such, the burden to prove the same lie upon them to which they had failed to discharge. Above version was also stood negated from the evidence adduced by both the parties and a glance over the same leads to a conclusion that petitioner Shahzado Shah as well as his witness, namely. Bahadur could not bring on record any, convincing evidence that deceased Yar Muhammad Shah belonged to Fiqa Jafria. They in their statements before the trial Court had shown ignorance about the manner in which his funeral ceremonies were conducted. Their admission that the agricultural land was already stood mutated in the name of respondent No.1 in the Record of Rights as legal heir of deceased Yar Muhammad Shah and receipt of notice about partition of the said land by petitioners further strengthen the case of respondent No. 1.

6. On the other hand, respondent No. 1 has successfully brought on record sufficient oral as well as documentary evidence about deceased Yar Muhammad Shah being Sunni by sect and his entire funeral ceremonies were conducted in accordance with that sect. The factum that she was not divorced also stood proved from the Pensionary documents and the entry in the Revenue Record mentioned above.

7. Above all, the fact that title of respondent No.1 was confirmed in Jalsa-e-Aam held on 10-7-1991 by Mukhtiarkar in the area of deceased Yar Muhammad Shah where nobody raised any objection upon her right of inheritance. Agricultural land mutated in consequence whereof was also not challenged by petitioners before any higher forum of Revenue hierarchy. Her further claim that she is still receiving family pension is supported by an entry entered in the Pension Book by Accounts Officer with the endorsement that she is entitled to the same and was never divorced.

8. The learned High Court while dismissing the revision application has elaborately discussed each and every aspect of the matter and has rightly held that the petitioners had failed to establish their case. Learned counsel for the petitioners has not been able to sow any illegality, irregularity, misreading or non-reading of the evidence in the impugned judgment, as such the same is maintained.

9. Accordingly, finding no merit in the instant petition, the same is dismissed and leave to appeal refused. S.A.K./S-48/S Leave refused.