2000 PLP 1496 (YLR)

The matter in contention relates to the inheritance in the estate of Tota son of Khaili. The admitted position is that Allah Bukhsh and Mst. Jamatan are respectively son and daughter of Tota while Mst. Sammi and Mst. Taggi are the two widows of Tota. Furthermore, the trial Court has held that Mst. Jannat and Siddique who are the daughter and son respectively of Mst. Taggi from her marriage with Tota, are the legal heirs of Tota. This finding of the learned trial Court relating to Mst. Jannat and Siddique daughter and son of Tota has not been challenged by the appellants and has, therefore, attained finality.

2. The matter in issue now relates to one Mst. Amna who claims to be the daughter and thus a legal heir of Tota. Mst. Aimna alongwith Allah Bukhsh, Mst. Jannatan, Mst. Sammi, Mst. Taggi, Mst. Jannat and Siddique were recorded as heirs of Tota vide Mutation No.2584 dated 23‑9‑1960 in respect of the property owned by Tota in Mauza Jiani, Tehsil and District Dera Ghazi Khan. It is this mutation which was challenged by the petitioners/plaintiffs in their suit.

3. Learned counsel for the appellants has pointed out that Mst. Aimna has not anywhere in her written statement asserted that she was the daughter of Tota. On the other hand, he has referred to the written statement of Mst. Taggi wherein she has averred that her son Siddique and daughter Mst. Jannat were born from her marriage with Tota while Mst. Aimna was born from her wedlock with Budha. Furthermore, the evidence led by Mst. Aimna is. also relevant. One Naseer Ahmed, who is her attorney, appeared at the trial as D.W.2. He has stated in his cross‑examination that Mst. Aimna was the daughter of Phhirri. The other portions of his testimony are also discrepant and cast doubt on Mst. Aimna's assertion that she was the daughter of Tota. The evidence of Msr. Aimna, who appeared as D.W.3, is also material. While she states that she is the daughter of Tota, she has also testified that her paternal grandfather's name was Rahim. It is apparent from the record that Tota, whose inheritance is the subject‑matter of the present appeal, was the son of Khiali and not of Rahim.

4. The above discussion, in the light of the evidence led by the parties, preponderantly shows that Mst. Aimna, although daughter of Mst. Taggi was not the daughter of Tota. In this view of the matter, this appeal is allowed, the judgment and decree dated 20‑12‑1971 passed by the learned District Judge, Dera Ghazi Khan, in favour of Mst. Aimna, is set aside and the judgment and decree dated 4‑2‑1969 passed by the learned Administrative Civil Judge, Dera Ghazi Khan is restored. Q.M.H./M.A.K./A‑24/L