2016 PLP 118 (CLC)

MOHAMMAD GHAZANFAR KHAN J.

Through the instant civil revision under section 115 of the Code of Civil Procedure, petitioners have impugned the judgment and decree dated 24.5.2011, rendered by learned Additional District Judge-V, D.I.Khan, whereby the appeal filed against the judgment and decree dated 31.1.2011 passed by learned Civil Judge-V, D.I.Khan, was dismissed.

2. The brief facts giving rise to the instant revision petition are that respondents filed a suit against the petitioners for declaration-cum-perpetual injunction against the petitioners and others to the effect that they are grandchildren of deceased Ghulam Muhammad and are entitled for their share/shares in the legacy of deceased Ghulam Muhammad; that inheritance mutation Nos.1118 attested on 24.4.2002 and 826 attested on 17.5.2003 were wrongly attested in favour of defendants; that they were deprived from their due shares in the suit land, which is liable to correction in favour of them; that revenue papers are also liable to be corrected. In addition respondents have also sought possession of the suit property (fully detailed in the heading of the plaint).

3. The respondents contested the suit by submitting their written statement. The learned trial court framed issues arising out of the pleadings of the parties. The parties produced their respective evidence as they wished to adduce in support of their respective claims. After hearing the arguments of learned counsel for the parties, the learned Civil Judge-V, D.I.Khan, decreed the suit of the respondents vide judgment and decree dated 31.1.2011.

4. Dissatisfied with the judgment and decree dated 31.1.2011, the petitioners filed an appeal, which was dismissed by the learned Additional Judge-V, D.I.Khan dated 24.5.2011, hence the instant revision petition.

5. I have heard the arguments of learned counsel for parties and perused the record.

6. Perusal of the record shows that there is no denial of the fact that respondents are legal heirs of predeceased son and daughter of Ghulam Mohammad, so the only argument advanced by learned counsel for petitioners that since section 4 of Muslim Family Laws Ordinance, 1961 has been declared against injunction of Islam by Honourable Federal Shariat Court, hence the respondents are not entitled to the legacy of their grandfather cannot be considered/entertained.

7. On the other hand, learned counsel for respondents have argued that since operation of judgment of Honourable Federal Shariat Court has been suspended by Apex Court in appeal, therefore, the judgments and decrees passed by both courts below are correct and are within framework of law, hence present petition is not maintainable.

8. The decision of Honourable Federal Shariat Court shall not take effect before disposal of an appeal by August Supreme Court. Provision of section 4 of Muslim Family Laws Ordinance, 1961 would remain operative until the appeal was disposed by August Supreme Court. This verdict was given in a case reported in 2005 CLC 1240 (Peshawar). Similarly, their lordship in PLD 2003 Supreme Court 475 has held that:- "The trial court was wrong in holding that the grandson, under the traditional Muslim Law of Inheritance was excluded from the inheritance of his grandfather due to the absence of his own father. Section 4 of the Muslim Family Laws Ordinance, 1961, clearly entitles the grandson for receiving the share which his father would have inherited, had he been alive. No doubt, the theory of Mahjub-ul-Irs has been revived by the Federal Shariat Court and section 4 of Muslim Family Laws Ordinance has been declared as repugnant to the Islamic Sharia yet such verdict has been challenged before the Supreme Court of Pakistan thereby the operation of the verdict stands suspended automatically till the disposal of the appeal as approved under Article 203D of the Constitution of the Islamic Republic of Pakistan, 1973. The grandson, therefore, can inherit the share of his predeceased father from his grandfather."

9. The above said two precedents are made it clear that judgments passed by both courts below are correct and in accordance with law, therefore, the instant revision petition stands dismissed. SL/345/P Petition dismissed.