JUDGMENT JAWWAD S. KHAWAJA, J.-- The petitioners Nos. 1 to 8 are the sons and daughter respectively of Mst. Rasoolan Bibi. Mst.
Rasoolan Bibi filed a declaratory suit seeking permanent injunction by way of consequential relief.
2. The dispute between the parties to the inheritance of Nathoo Khan who died on 25.9.1976. After his death inheritance mutation No. 21 (Exh. P-3) was sanctioned on 21.1.1978 in favour of Ghulam Rasool and Muhammad Hussan (respondents Nos. 1 and 2) sons of Nathoo Khan. The case set up by Mst. Rasoolan Bibi was that she and her five sisters, namely, Mst. Hajran Bibi (Petitioner No. 9), Mst. Muhammadi Bibe (petitioner No. 10), Mst. Sabran Bibi (respondent No. '3), Mst. Sharifan Bibi (respondent No. 4) and Mst. Hanifan Bibi (respondent No. 5) were the daughters of Nathoo Khan, but had been wrongly excluded from inheritance by their brothers (respondents Nos. 1 and 2).
3. While the two brothers contested the suit, Mst. Hajran Bibi, Mst. Muhammadi Bibi and Mst. Hanifan Bibi filed conceding statements admitting therein that They and Mst. Rasoolan Bibi were the daughters of Nathoo Khan.
4. Issues were framed by the learned Trial Court on which both parties led evidence. Mst. Rasoolan Bibi produced witnesses who proved that she was the daughter of Nathoo Khan. Additionally, she produced an FIR (Exh. P- 7) lodged on the complaint of Ghulam Rasool (respondent No. 1). This FIR is dated 9.11.1961 i.e. Much before the filing of the suit and even before the death of Nathoo Khan, In the said FIR it has been stated by Ghulam Rasool that Mst. Rasoolan Bibi is his sister.
5. Considering the evidence the learned Trial Court decreed the suit of Mst. Rasoolan Bibi. The respondents Nos. 1 and 2 preferred an appeal which has been allowed by the learned Appellate Court on 4.3.2002. The sole reason, which has weighed with .The Appellate Court, is an affidavit filed by Mst. Hanifan Bibi submitted before the Appellate Court wherein she resited from her written statement arid stated that she and the other ladies are not- the daughters of Nathoo Khan. The learned Appellate Court has not taken note of the FIR (Exh. P-7) or the oral testimony, of the PWs which remained un-impeached and which was .Relied upon by the learned Trial Court while - decreeing the suit.
6. Learned counsel for the petitioner has, with justification, argued that any affidavit submitted by Mst. Hanifan Bibi or statement made by her before the learned Appellate Court could not have been treated as evidence and, therefore, the appellate decree is not legally sustainable. Learned counsel for the two brothers (respondents Nos. 1 and 2), however, submitted that Mst. Hanifan Bibi was put in the witness box by the learned Appellate Court and the petitioners were allowed to cross- examine her. He submitted that the testimony of Mst. Hanifan Bibi remained unimpeached despite cross- examination and, therefore, it could be treated as evidence in the case justifying the dismissal of the suit filed by Mst. Rasoolan Bibi.
7. Even if the above-noted contention of learned counsel for the respondents Nos. 1 and 2 is accepted, there is ample evidence available on record to prove the case of the petitioners/plaintiffs. It. Is worth noting that in their written statement respondents Nos. 1 and 2 categorically stated that Mst. Rasoolan Bibi had no connection with them or with their father Nathoo. However, in their evidence, they set up a different plea altogether. They attempted to show that Mst. Rasoolan Bibi and her sisters, mentioned above, were the daughters of their mother but from a previous marriage to one Sher Muhammad. The fact that they acknowledged Mst. Rasoolan Bibi and her sisters to be their uterine sisters contradicts their written statement wherein any relationship with Mst Rasoolan Bibi had been denied. Moreover, there is no mention at all of the previous marriage of their mother with Sher Muhammad. Here I may also add that when Ghulam Rasool (respondent-defendant) appeared as DW-1, he categorically denied that he had mentioned Mst. Rasoolan Bibi to be his sister in the FIR (EXh. P-7). I have gone through Exh. P-7 and find that in clear and unambiguous terms Ghulam Rasool as complainant has mentioned Mst.
Rasoolan Bibi as his sister. I am not left in any doubt that the pleas raised by respondents in defence are false.
8. The foregoing circumstances also give support to the case set up by Mst. Rasoolan Bibi. Ghulam Rasool. (respondent-defendant) was also proved to be untruthful in another material particular. He denied that the son of his brother Muhammad Hussan was married to the daughter of Mst. Sabran Bibi. This statement obviously was made to distance the two brothers from the six sisters. Ghulam Rasool was proved to be untruthful on his score through the kartik nama (Exh. P-6) proving the aforesaid marriage.
9. In view of the foregoing discussion, I am clear that Mst. Rasoolan Bibi was the sister of respondents Nos. 1 and 2 and was, therefore, entitled to a declaration that she was entitled to the suit property as legal heir of Nathoo. Mst. Hajran Bibi (petitioner No. 9) and Mst. Muhammadi Bibi (petitioner No. 10), are also similarly entitled to inherit the suit property as daughters of Nathoo.
However, Mst. Sabran Bibi, Mst. Sharifan Bibi and Mst. Hanifan Bibi (respondents Nos. 3 to 5) are not entitled to inheritance in the suit property because they have denied that Nathoo was their father.
10. As a result of the above findings, it is evident that respondents Nos. 1 and 2 have been enjoying the benefits of the suit property to the exclusion of the petitioners. The petitioners, as legal heirs of Nathoo, were entitled to joint possession of th$ suit land alongwith respondents Nos. 1 and 2. In view of the wrongful exclusion of the petitioners, I consider it fair to pass a preliminary decree for masne profits in favour of the petitioners for the period starting from the date of filing of the suit. An inquiry shall be undertaken by the learned Trial Court to determine the quantum of masne profits, where after a final decree shall be passed for the amount, so determined, in favour of the petitioners.
11. This petition is, therefore, allowed in the above terms. The petitioners shall also be entitled to their costs throughout.