2002 PLP 500 (MLD)

(i) Mutation No.710 dated 29‑8‑1958, 8 Kanals of land was sold to Ellahi Bakhsh son of Easa for Rs:

600. The said Ellahi Bakhsh had further alienated the same land through Mutation No.741 dated 30‑11‑1960 in favour of Bakho son of Ellahi Bakhsh for Rs.600; (ii) Mst. Zohran alienated 3 Kanals, 19 Marlas of land in favour of Khuda Bakhsh son of Muhammad Ramzan through Mutation No. 1124 dated 6‑8‑1974 which was subsequently acquired by Bakho defendant No.3 through pre emption; (iii) Mst. Zohran alienated 3 Kanals, 19 Marlas of land to Mst. Bhiranwan widow of Ghulam Nabi through Mutation of Exchange No. 1134 dated 27‑12‑1974. In exchange Mst. Zohran acquired 3 Kanals, 18 Marlas of land situated in Khata No. 117; and (iv) Mst. Zohran subsequently transferred the above‑stated 3 Kanals, 19 Marlas of land acquired by her in exchange alongwith her remaining entire land 90 Kanals and 19 Marlas (total 94 Kanals 17 Marlas) to her daughter Mst. Maryam through registered gift‑deed, dated 1‑10‑1978 (Exh.P.2.).

3. Muhammad Azeem and others (petitioners herein) who are the legal heirs of Mst. Fatima filed a suit for declaration that being the successors of Mst. Fatima, they were owners in possession of 7/64 share out of the land left by the said Ellahi Bakhsh which share according to them measured 46 Kanals, 15 Marlas. The Mutation No.74 dated 25‑1‑1932 and the subsequent transactions were also challenged.

4. The suit was contested. It was inter alia pleaded that the plaintiffs were not in possession of the suit‑land; that the suit was barred by time and that the suit was not maintainable in its present form. On merits, it was contended that Ellahi Bakhsh had gifted the suit property in favour of Mst. Zohran who had thus, acquired full and exclusive ownership of the same.

5. The learned trial Court framed several issues. The material Issues Nos.8 and 9 are reproduced as under:‑‑ (8) Whether the impugned mutation of Inheritance No.74 sanctioned on 25‑1‑1932 is illegal, void and hence inoperative upon the rights of the plaintiffs? OPP (9) Whether the subsequent impugned Mutation No.710 dated 29‑8‑1958, Mutation of Sale No.1126 dated 6‑8‑1974, the impugned mortgaged for a period of 10 years and the impugned registered Tamleek Nama dated 1‑10‑1978 bearing No.1400 are illegal, void, without jurisdiction and hence the same are inoperative upon the rights of the plaintiff? OPP.

6. The plaintiffs examined 4 witnesses including Muhammad Abdullah and Muhammad Azim plaintiffs. They also placed on record the copies of mutations, Jamabandies, Khasragirdawaris and other relevant record EXh.P.1 to Exh.P.21. The defendants examined 3 witnesses including Mst. Zohran herself.

7. After considering the evidence on the record, the learned trial Court came to the conclusion that Ellahi Bakhsh was governed, in matters of succession by the rule of Islamic Law and that the gift (Tamleek Nama dated 1‑10‑1978) in favour of Mst. Zohran was illegal and inoperative upon the rights of the plaintiffs. Holding Issue No. 1 regarding limitation in favour of the plaintiffs, the suit was decreed vide judgment and decree dated 20‑3‑1989.

8. Mst. Zohran Bibi etc. filed an appeal which was accepted vide judgment and decree dated 20‑6‑1990 with the result that the suit filed by Muhammad Azeem etc. petitioners stood dismissed:

9. In this civil revision, the judgment of the learned first Appellate Court is challenged or the ground that under Islamic Law, Mst. Zohran as widow could inherit only 1/8th share while the daughters shall be entitled to 2/3rd share. It was also contended that the residue shall also pass to them. According to the learned counsel for the petitioners, the learned First Appellate Court erred in misreading the evidence on the record and came to an erroneous conclusion that the gift stood proved in favour of Mst. Zohran.

10. Arguments have been heard and record perused.

11. In‑support of her contention that she was the exclusive owner of the suit‑land by way of gift from Ellahi Bakhsh, the respondents produced Malik Mahmood D. W.1 who stated that the entire land was given by Ellahi Bakhsh to his wife Mst‑. Zohran by way of Tamleek and that she enjoyed full rights of ownership and alienation in the same. Malik Hazoor Bakhsh appeared as D. W.2 who deposed that Ellahi Bakhsh had given his entire land to Mst. Zohran by way of Bakhseesh. The. possession of Mst. Zohran was also affirmed. Mst. Zohran herself appeared as D. W.3 and reiterated her exclusive right in the suit‑land. While examining the nature of Mutation No.74 dated 25‑1‑1932, the learned Appellate Court appreciated the statement of the Record‑Keeper Muhammad Saleem who appeared as C.W.I. The said witness had brought the original record of Mutation No.74 which was exhibited on the record as EXh.C.

1. According to l this witness, the restriction occurring in the said mutation upon the right or Mst. Zohran to mortgage or sell the said land was added after attestation of the mutation.

12. A perusal of the impugned Mutation No.74 (Exh.P.17.) would itself show that the alienation' by Ellahi Bakhsh in favour of Mst. Zohran was being made under Shariat. That being so, no legal effect would flow from the endorsement of the said restriction upon the right of Mst. Zohran as such restriction would be void.

13. It is also noticed that Mutation No. 74 was attested on 25‑1‑1932. Mst. Fatima never challenged the same during her life time. The suit was filed on 31‑7‑1984 which was hopelessly barred by time.

14. In view of the above, the learned counsel for the petitioners has not been able to point out any misreading or non‑reading of the evidence on the record. The learned Appellate Court has appreciated the evidence on the record and the inference drawn by the learned appellate Court from such appreciation was lawfully made. No illegality or infirmity in the impugned judgment has been indicated. Resultantly, there is no force in this civil revision which is hereby 1 dismissed. No order as to costs. Q.M.H./M.A.K./M‑980/L Revision dismissed.