1983 PLP 1546 (CLC)

2. The other side respondents have challenged the said document as a forged document.

3. Subsequent to the death` of Habibullah, respondent No. 1 (Abdul Aziz) moved an application before the Revenue Authorities for mutation of his own name and the name of Abdul Hamid as heirs of the said deceased under the Muslim Law. The Mukhtiarkar in ex parte proceedings allowed the said application, against which Abdul Hamid and the applicants Nos. 1 and 4, filed an appeal. The Deputy Commissioner by order passed on 26th May, 1981 allowed the said appeal on the ground that case of Ulfat Bibi, sister of the deceased Habibullah, who was alive at the time when Habibullah died, was not considered. It was also observed that fresh mutation be made keeping in view the provisions of the Land Revenue Act and also the gift claimed by the then appellant. Mutation proceedings pursuant to the said appellate order, are still pending.

4. In the meantime Abdul Hamid also died leaving behind applicants Nos. 1 to 6 as his heirs. The alleged donees, applicants Nos. 1 and 4 and the' heirs of Abdul Hamid filed Civil Suit No. 48/81 in the Court of Civil Judge,' Sanghar for declaration and permanent injunction wherein amongst others it was prayed that the defendants/respondents be restrained from interfering with the possession and enjoyment of the applicants in respect of the land, which is subject-matter of the suit. Alongwith the suit they also moved application under Order XXXIX, Rules 1 and 2, C. P. C. for temporary injunction to the same effect.

5. The learned Civil Judge, as well as the learned Ist. Appellate Court gave concurrent findings that prima facie the plaintiffs/applicants have failed to prove their possession over the suit land. About the genuineness of the Will it was observed that it is also under challenge and that prima facie it was neither a gift nor fulfilled the ingredients of a valid gift under Muslim Law. The plea of gift, it was observed, was belied by the said document itself which provided that- ....and they can either keep the said property in their own names or dispose them off or to do in any manner whatsoever, as absolute owners of the said property after my demise."

6. I have considered the arguments advanced by the learned counsel, and I find that no illegality, or error in exercise of jurisdiction could be pointed so as to call for interference in interlocutory orders passed by the learned Courts below. In fact the orders are supported by cogent reasons. Both the Courts have given concurrent findings that the applicants prima facie, failed to prove their exclusive possession over the suit. land. Under the Muslim Law defendant No. 1 is also one of. the persons who is entitled to inherit share in the land in suit, on the death, of Habibullah. A co-sharer (the defendant No. 1) on basis of inheritance-gets undivided share jointly with the other heirs and any attempt to exclude a co-sharer by the other co sharers cannot be supported in law or equity. '

6. The alleged gift, prima facie, does not convey title in favour of the alleged donees. I do not find it necessary to add to the reasons given by two Courts below. However it may be pointed out that the validity of gift made in writing for want of registration and the question of its legality on the ground that it was to take effect after the death of the alleged donor, are serious questions which are to be decided at the trial. Significant fact to note here is that the respondent No. 1 has filed counter-affidavit this Court in which it is expressly stated that "the will" is a forged document., No rejoinder in rebuttal has been filed by the applicants. In the circumstances the applicants cannot rely upon the alleged "gift/will", the validity, of which is yet to be decided. In view of the above discussions and the findings given by the two Courts below, I do not find any reason to interfere with the impugned inter locutory orders in exercise .pf supervisory jurisdiction of this Court under section 115, C. P. C. The revision petition is accordingly dismissed. The order directing the maintenance of status quo passed on 17th December, 1981 is vacated.

8. It is clarified that observations made hereinabove in this order and in the impugned orders passed by the learned Courts below, being tentative in nature shall not to any manner prejudice the trial of the suit on merits.

9. At the request of Mr. Muhammad Ali Shaikh learned counsel for the applicants, a request is made to the learned Civil Court that the case may be given preference. K. M. A. Petition dismissed.