2007 PLP 719 (MLD)

MIAN SAQIB NISAR, J.

It is the case of the petitioners that the property in issue was originally owned by Dolu Khan, who died somewhere in the year, 1941 leaving behind Jalal and Ali Akbar, his sons, whereas his other son Barkat had died before him. However, in order to accommodate the widow of Barkat namely Mst. Chiragh Bibi, she was given 1/3rd share in the estate left by the deceased, which under the customary law, was to terminate upon the death of Mst. Chiragh Bibi. Mst. Chiragh Bibi died in the year 1984 and under Mutation No.173, her share was given to the extent of half to respondent No.1, her daughter, whereas the other half to the petitioners. The petitioners challenged this through the filing of a civil suit on the ground that Mst. Chiragh Bibi was only holding a limited share under the customary law and as the custom has abolished, therefore, upon her death, the property would revert to the original owner and it is only Jalal and Ali Akbar, who were entitled to inherit the same; this suit was dismissed. The petitioners filed another suit on the same cause of action, but this too was dismissed by the Court by applying the provisions of section 11, C.P.C.

2. Another development, which took place in the matter is, that respondent No.1 Mst. Hajran Bibi challenged the Mutation No.173 in the revenue hierarchy and through an order, dated 5-6-1996 passed by the Additional Commissioner, it was held that Mst. Chiragh Bibi was a "Shia" and, therefore, Mst. Hajran Bibi was exclusively entitled to inherit her estate. The petitioners filed a revision before the Board of Revenue, which according to them was accepted on 27-6-1996 with the direction to Mst. Hajran Bibi to file a suit if she claims that Mst. Chiragh Bibi professed "Shia" faith. Against the above order, dated 27-6-1996, Mst. Hajran Bibi filed Writ Petition No.15933 of 1997 before this Court, which was disposed of on 9-7-1997 with some modification in the order of the Board of Revenue. After the disposal of the said "writ petition, Mutation No.303 was sanctioned in favour of Mst. Hajran Bibi.

3. Anyhow, Mst. Hajran Bibi never filed a suit and instead, the petitioners brought the instant suit and one of the important issues involved in the matter is "Whether the plaintiffs are owners in possession of the suit property and Mutation No.303, dated 22-7-1999 is against law and facts, ineffective and inoperative upon the rights of the plaintiff."

4. The learned Civil Judge, after recording of the evidence and by making reference to the order of this Court passed in Writ Petition No.15933 of 1997 and some ancillary litigation between the parties, decreed the suit and declared Mutation No.303 as null and void. However, on appeal of the respondents, which was accepted, the judgment and decree of the learned Civil Judge has been set aside and it has been clearly held that:-- "It is very clear from the rejection of their previous two suits for declaration filed by the respondents/their predecessor that they cannot challenge at least the status of limited' ownership of Chiragh Bibi deceased thus if they cannot challenge the same, the respondents being collaterals of Barkat Ali deceased are not entitled to inherit any property which was ownership of Chiragh Bibi whether she was Shia or Sunni Muslim."

5. Heard. The learned appellate Court has given a very valid reason, which has been reproduced above. Undoubtedly, the petitioners cannot now challenge that Mst. Chiragh Bibi was a limited owner, because they have lost on this proposition in earlier two suits. In this case, they have neither claimed nor is there any proof on the record that the petitioners are the legal heirs of Mst. Chiragh Bibi. Therefore, when Mst. Chiragh Bibi was the absolute owner of the property and not holding it under the custom, such estate shall devolve upon her legal heirs and the legal heirs of Dolu Khan. Resultantly, this revision petition has no merits and is hereby dismissed. F. B. /Q-11/L Petition dismissed.