2009 PLP 282 (MLD)

KHALIL AHMAD, J.

Respondent filed a suit for declaration and permanent injunction by contending that her husband Muhammad Hanif was owner in possession of property, i.e. Shop No.14 situated in Qamar Center, Basti Rao Sahib measuring 6 sarsahi on the basis of registered Sale-deed No.154, dated 17-3-1996 and House No.137 measuring 5-Marlas 1-Sarsahi situated in Chak No.20/2-L situated in Urban Muslim Town on the basis of registered Sale-deed No.652, dated 2-12-1996 Muhammad Hanif died issueless and was survived by the respondent and Muhammad Rafique petitioner. The Mutation of inheritance bearing No.5493 and 1003, dated 18-8-2003 in favour of respondent having 1/4 share being widow and Muhammad Rafique having share 3/4 being real brother in said property was sanctioned and that Muhammad Rafique petitioner/defendant entered into an agreement of gift in favour of the respondent/widow vide deed, dated 6-8-2003. The suit was contested by the petitioner and on the pleadings of the parties, the learned Civil Judge framed the following issues:-- (1) Whether the plaintiff is entitled to decree for declaration along with permanent injunction as prayed for? OPP (2) Whether any agreement of gift was made by the defendant in favour of the plaintiff? OPP (3) Whether impugned agreement of gift is fake and forged and liable to be cancelled? OPD (4) Whether the suit is under-valued for the purpose of court-fee and jurisdiction? OPD (5) Whether the suit is false and frivolous and liable to be dismissed with special costs? OPD (6) Relief.

2. The learned Civil Judge after recording of evidence vide judgment and decree, dated 19-4-2006 decreed the suit. The petitioner filed an appeal against the afore-said judgment and decree which was dismissed by the learned Additional District Judge, vide judgment and decree, dated 28-3-2008. Hence, this petition.

3. Learned counsel for the petitioner has drawn my attention to Exh.P2 to show that the mutation of inheritance was registered on 15-8-2003 and attested on 18-8-2003. Copy of Roznamcha Waqiati No.1665, dated 15-8-2003 also shows that mutation was entered on he said date. He has also drawn my attention to copy of Iqrarnama, dated 6-8-2003 to show that in Iqrar Nama, dated 6-8-2003 Mutation Np.5493, dated 18-8-2003 is mentioned.

4. Learned counsel for the respondent argued that this point was neither stated in the written statement nor taken up in the proceedings before the lower Courts below and as such the same cannot be agitated in the revision petition.

5. Be that as it may, the mutation of inheritance was entered on 15-8-2003 and attested on 18-8-2003. Copy of the Roznamcha Waqiati No.1665, dated 15-8-2003 has been placed on record. Iqrarnama, dated 6-8-2003 mentions the entry of mutation, dated 15-8-2003 which speaks volume for itself.

6. In view of the above, this revision petition is accepted. The orders passed by the learned Courts below are set aside. The case is remanded back to the learned Civil Judge. The parties are directed to appear before the learned Civil Judge, who shall take into consideration this aspect of the case by giving opportunity to the parties to lead evidence on the point and decide the case within a period of three months from the receipt of this order. A.M.R./M-380/L Petition accepted.