1996 PLP 1423 (MLD)

(8) Whether the inheritance mutation of Jangi Khan bearing No.8384 sanctioned on 4‑12‑1944 is void on the rights of the plaintiffs and as such it is liable to be amended/rectified? (9) Whether the plaintiffs are entitled to a decree for declaration along with perpetual injunction as asked for? (10) Whether the plaintiffs are entitled to a decree for possession as an alternative relief? (11) Relief?

3. The learned trial Judge vide order, dated 11‑5‑1992 while giving finding on Issue No.2 held the suit of the plaintiffs barred by time and leaving rest of the issues un-discussed as redundant, dismissed the suit.

4. Feeling dissatisfied there from, the plaintiffs preferred an appeal in the Court of District Judge, Lakki Marwat which was accepted, the judgment and decree of the trial Court were set aside and suit was decreed in their favour. Hence this revision.

5. I have heard learned counsel for the parties at length and perused record of the case thoroughly with their valuable assistance.

6. Mr. S. Zafar Abbas Zaidi, learned counsel appearing for the petitioner, has vehemently argued that Mst. Afghan Bibi had predeceased her father Jangi Khan and, therefore, she was not at all entitled to inherit anything from him. He was of the view that suit of the plaintiffs is hopelessly barred by time and has placed reliance on PLD 1984 SC 245 ' e' at page 246.

7. Learned counsel for the respondents has, however, supported the impugned judgment and decree of the Appellate Court.

8. I am afraid that this is not the correct picture of the case of the defendants in their pleadings that has been argued today: The defendants have not raised this plea in their written statement that Mst. Afghan Bibi was not alive at the time of the death of her father langi Khan or she died prior to her father. It has been laid in PLD 1982 Azad J&K 128 ' c' as follows:‑‑‑ "C.P.C.‑‑‑O.VI‑‑‑Pleadings‑‑‑Question of fact not specifically raised in pleading‑‑‑Held, evidence on such question cannot be looked into and a party cannot be permitted to build up a case which such party failed to set up in its pleadings." On the other hand, the plaintiffs have specifically pleaded in para. 2 of their plaint as under:‑‑‑ It was also held in 1995 MLD 1583 Peshawar ' C' under Order 8, Rule 5 and section 115, C.P.C. that defendants' failure to take up plea in their written statement that plaintiff was not the son of predeceased daughter of propositus such plea could not be taken after words at revisional stage, or evidence to that effect could be allowed to be laid before the High Court over a scandalous matter which was not at all even alluded to in the written statement.

9. The plaintiffs have proved their version by production of cogent evidence that Mst. Afghan Bibi was the daughter of Jangi Khan. This fact is not denied by the defendants, rather they have admitted it in their written statement and also in their evidence. Plaintiffs' version that Mst. Afghan Bibi was alive at the time of death of Jangi Khan is not rebutted by the other side.

10. The attested copy of Inheritance Mutation No.8384 is pressed into service as Exh.P.W.2/2 wherein Mst. Afghan Bibi has not been shown as predeceased. Her name was altogether omitted. Exh.P.W.l/2 is the current Jamabandi for the year 1981‑82 and in its remarks column the inheritance A mutation of Mst. Afghan Bibi finds mention as 22706 attested on 28‑7‑1985. The death of Mst. Afghan Bibi would be presumed immediately before the attestation of the said mutation as held in 1995 MLD Peshawar 'c' 1583. The defendants have also not disputed the status of the plaintiffs being the legal heirs of Mst. Afghan Bibi and there is sufficient evidence on record to hold them as such. .

11. In the light of the aforesaid discussion, the plaintiffs have been able to discharge their burden which was placed on them. Issues Nos.7 and 8 are answered accordingly. The most contested Issue is No.2 which deals with limitation. While delivering judgment cited above MLD 1995 Peshawar ' c' 1583, his Lordship, Sardar Muhammad Raza, J. was pleased to hold that "the question of plaintiffs being in possession or not was immaterial, for with opening of succession, legal heirs automatically become owner and thus a co -sharer. No question of limitation would thus, arise in absence of any ouster. The bar of limitation was thrashed out in detail in PLD 1990 Supreme Court 1, wherein it was observed as under:‑‑‑ "Inheritance ‑‑‑Co‑sharer‑‑‑Rights of females‑‑‑Brother cannot legally claim adverse possession against his sister and much less 'ouster'. " The Court was further pleased to observe under d' at page 2 thereof as follow:‑‑‑ "Inheritance ‑‑‑Co‑sharer‑‑‑Rights of females‑‑‑Heir in possession has to be considered to be in constructive possession of the property on behalf of the heirs in spite of his exclusive possession‑‑‑Possession of the brothers thus would be taken to be the possession of their sisters, unless there is an express repudiation of the claims of the sisters by the brothers." After this verdict of the Supreme Court in the cited judgment, there remains no possibility of usurping the rights of females by their brothers‑‑‑omitting their names from the Revenue Record. The judgment referred by the learned counsel for the petitioners is of no avail to him, as the facts of both the cases are distinguishable. In the same journal another case reflects at page 462 wherein‑‑ limitation was held no to be a hurdle in cases of inheritance and no person can derive any such benefit from the entries of the mutation. In the earlier cited judgment of the Supreme Court in PLD 1990 SC 1, the Court‑was pleased to observe that wrong mutation confers no right in property as Revenue Record is only prepared for purpose of ensuring of land revenue.

12. It is a fact that the Revenue Record is prepared and maintained by the 1 authorities appointed under the Land Revenue Act. It is not the duty of the parties to prepare and maintain it. Time and again it has been held that mutation/Revenue Record neither confers title on any one nor it extinguishes the, rights of any person.

13. Resultantly, it is held under Issues Nos. l, 2, 9 and 10 that Mst. Afghan Bibi was the real daughter of Jangi Khan who was alive at the time of the death I of her father (Jangi Khan) and, therefore, she inherited to the extent of her share along with other defendants of her father and on her death, the plaintiffs succeeded her. Therefore, the plaintiffs are entitled to the decree as prayed for. The suit of the plaintiffs is within time and they have got a cause of action. The defendants have failed to discharge their burden under Issues Nos.4, 5 and 6 and, therefore, the same are decided against them.

14. As a sequel of the aforesaid discussion, I find no illegality or material irregularity in the findings of the lower Appellate Court in order to interfere therewith under section 115, C.P.C. On the other hand, the learned trial Court had fallen in legal error while dismissing the suit of the plaintiffs without I adverting to the facts and law applicable to the case.

15. The nutshell of the discussion is that this petition is devoid of force and consequently it is dismissed with costs. A.A./1939/P Revision dismissed.