2011 PLP 1726 (MLD)

AMIN-UD-DIN KHAN, J.

Instant civil revision is directed against the judgments and decrees passed by the courts below by way of which suit for declaration tiled by respondent No.1 was decreed by the learned trial court in his favour vide judgment and decree dated 30-5-1998. The petitioners preferred an appeal which was dismissed by the learned appellate court on 15-2-1999.

2. The brief facts of the case are that Muhammad Nawaz father of the plaintiff was owner of land measuring 766 Kanals and 12 Marlas in Mauza Sawaterki, Tehsil Sadiqabad, according to the record of rights for the year 1934-35, wild died in the year 1936. At the time of death of deceased Muhammad Nawaz his two sons Jind Wadda and Gos Bakhsh Shah and four daughters, the plaintiff Lal Khatoon, Jindan Mai, Hawa Mai and Zanib Khatoon were alive but the inheritance Mutation No.67 dated 21-3-1937 regarding the land owned by deceased Muhammad Nawaz was sanctioned only in favour of his sons Gos Bakhsh Shah and Jind Wadda Shah and her daughters were deprived of their share of inheritance. It was further alleged in the plaint that the plaintiff is owner in possession to the extent of her share measuring 95 Kanals, 16 Marlas since the death of her father. It was further contended in the plaint that on verification of the Revenue Record it came into the knowledge of the plaintiff that she had been deprived of her share of inheritance in the inheritance Mutation No.67 dated 21-3-1937 and the land in dispute had illegally been transferred in the name of defendants. It was further alleged that all the disputed mutations are liable to be cancelled being illegal and void.

3. The defendants appeared before the learned trial court and contested the suit while submitting their written statement. The learned trial court out of the divergent pleadings framed necessary issues including the relief. The learned trial court recorded oral as well as documentary evidence of both the parties and thereafter hearing the arguments of both the learned counsel for the parties at length decreed the suit of the plaintiff. The petitioners preferred an appeal which was dismissed by the learned appellate court vide its judgment and decree dated 15-10-1999.

4. I have heard learned counsel for both the parties and with their valuable assistance have perused the record.

5. Learned counsel for the petitioners contends that judgments and decrees passed by both the courts below are based on misreading and non-reading of evidence and both the courts below have not applied their judicious mind properly while passing the impugned judgments and decrees; that the suit of the respondent was badly barred by time and the issues at limitation has not been decided in accordance with law. Further submits that petitioners Nos.18 to 20 and 25 were minors and they were not properly represented in the suit by a duly qualified guardian, therefore, the decree passed against unrepresented minors is without jurisdiction and the same is liable to be set aside.

6. On the other hand, learned counsel for the respondents while relying upon case reported as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1) submits that in the matter of inheritance the court cannot be too technical and on the basis of limitation the suit for inheritance cannot be dismissed. Further contends that at the time of death of propositus all the legal heirs automatically become owners in property, in the case in hand at the time of death of Muhammad Nawaz in the year 1936 all the legal heirs became the joint owners of the property. Further contends that there is no denial from the heirship of the plaintiff.

7. On the other hand, learned counsel for respondents Nos.4 to 9 contends that they have purchased the property in good faith for consideration, their transaction be saved. It is further contended that even if the property of Muhammad Nawaz be redistributed in his legal heirs in accordance with law, even then the purchase of the property made by respondents Nos.4 to 9 is saved.

8. The main attack by learned counsel for the revision petitioner on the judgments and decrees passed by both the courts below is that some of the petitioners/defendants were minors and no guardian ad litem was appointed by the courts and no application under Order XXXII of the C.P.C. was moved. On the basis of available record, it cannot be adjudged, as to whether an application was moved under Order XXXII of C.P.C. or not because it is a revision petition. The record of the trial court is not available with this court. Certifies copy of the plaint is available on the file. All the minors were sued through their guardians. The minor defendants Nos.18 to 20 were sued through their real mother, whereas defendant No.25 was sued through his real father. In this way, I find that no prejudice has been caused to the minors and because they were sued through their mother or father who have no interest against the interest of minors. If the appointment of the guardian of the minors ad litem by a formal order of the Court is not made and no prejudice has been pleaded or shown then it remains only formality that guardian ad litem is not appointed which makes no difference.

9. So far as the objection of limitation is concerned it was a matter of inheritance. On the basis of judgment of the honourable Supreme Court in case reported as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1) limitation cannot be hurdle in the way of claiming the inheritance specially when Parda Nasheen lady is a plaintiff. In this case, when there is no denial that plaintiff is a legal heir of Muhammad Nawaz and when there is no evidence available on record which shows the specific ouster of the plaintiff from the suit property, therefore, the property remains a joint property and the possession of one co-sharer is assumed to be the possession of all the co-sharers.

10. In the light of what has been discussed above and the learned counsel failed to show any jurisdictional defect, mis-reading or non-reading by both the courts below while recording findings, I see no force in this civil revision which is hereby dismissed. H.B.T./H-22/L Petition dismissed