MAULVI ANWAR-UL-HAQ, J. --- On 26.3.1997 the appellants filed a stilt against the respondents. We deem it appropriate to narrate the contents of the said plaint in some detail. It was stated that the suit property mentioned in detail in the plaint was owned by Lekh Raj and his wife Mst. Shanti Devi.
Both the said persons embraced Islam and adopted the Muslim names as Ghulam Mustafa and Mst. Ghulam Fatima respectively. Trey had three sons, namely, -Malik Rab Nawaz, Haq Nawaz and Shah Nawaz. The appellants and respondents Nos. 2 to 4 are the widow and children of the said Malik Rab Nawaz. The said three sons of Ghulam C.L.R.
Mustafa and Mst. Fatima went to India on 27.7.1963. Malik Rab Nawaz came back to Pakistan but the said two sons opted to permanently reside in India. They again converted to Hinduism and adopted the names of Hans Raj Maita and Anil Kumar Batra. They are Respondents Nos. 5 and 6 respectively. The respondent No. 6 died and respondents Nos. 6-A to 6-D are his L.Rs. In view of the said circumstances, only Malik Rab Nawaz was the sole heir of Mst. Ghulam Fatima and Ghulam Mustafa. Then a reference was made to a gift under which the respondents Nos. 5 and 6 claimed title. The said gift was stated to be illegal and void because of absence of declaration, acceptance and delivery of possession. In January, 1977 respondent No. 5 came Pakistan on the death of the Malik Rab Nawaz and claimed his share in the said property both as an heir and as a donee. Reference was also made to some exchange mutations and revenue entries with reference to the suit-land in the Muslim names of respondent Nos. 5 and 6. These were also stated to the void. With these averments, a declaration was sought that the appellants and respondents Nos. 2 to 4 are the sole owners of the suit property and respondents Nos. 5 and 6 have nothing to do with it and the several transactions were also sought to be declaration as void. The suit was conceded by respondents Nos. 2 to 4. Respondents Nos. 5 and 6 filed a written statement raising several objections. They took the plea that the suit-land had not devolved upon them by way of inheritance but by means of a gift. They also pleaded that Malik Rab Nawaz was the attorney of the said respondents and entered into several transactions treating them to be the owners of the land and that he remained as attorney till his death. The gift deed was stated to be valid and legal. On 4.12.1997 the appellants filed, an application praying for a decree in terms of Order XII, rule 6, C.P.C. Alleging that the respondents Nos. 5 and 6 have not denied the conversion to Hinduism. In response, the respondents Nos. 5 and 6 stated that the matter can be decided only after recording evidence. On 14.4.1998 the respondent No. 5 filed an application under Order VII, rule 11, C.P.C. For rejection of the plaint. He, referred to some admissions made by the appellants and respondents Nos. 2 to 4 to the effect that Rab Nawaz had been an attorney of respondents Nos. 5 and 6. Then they referred to a suit filed by respondents Nos. 2 to 4 on 17.11.1996 containing an admission that they had purchased land from Haq Nawaz and Shah Nawaz. The plaint was rejected on 6.5.1997. Then there is reference to an application by respondents Nos. 2 to 4 for transposition which was later withdrawn. Then there was a reference to a Mutation No. 183 attested on 23.2.1998 during the pendency of the suit after the death of Shah Nawaz respondent No. 6 which was later reviewed and that an appeal is pending. Their case was that since they have been admitted to be Muslim, the plaint is liable to be rejected. In their reply, the several facts were denied.
2. Learned Trial Court took up both the applications together. Now regarding the application filed by the appellants, it was held that the respondents Nos. 5 and 6 have denied the allegations made in para. 4 of the plaint regarding conversion and there is no admission. Now thereafter, he proceeded to dismiss the application under Order VII, rule 11, C.P.C.
And proceeded to reject the plaint vide order and decree dated 10.10.1998.
3. Learned counsel for the appellants argue that the learned Trial Court proceeded to reject the plaint on erroneous assumption in violation of the provisions of Order VII, rule 11, C.P.C. As interpreted by the superior judiciary. According to him, there is no admission on record and the admissions pleaded by the respondents have to be proved in accordance with law. Learned counsel for respondent No. 5, on the other hand, contends that in view of the facts pleaded in the written statement and the said application the rejection of the plaint is legal and proper.
4. We have gone through the Trial Court records, with the assistance of the learned counsel for the parties.
We have already narrated above in some detail the contents of the plaint that was filed by the appellants Now it will be seen that as stated in the earlier part of his order, by the learned Trial Court, this is a case of facts pleaded in the plaint and denied in the written statement. Now what has to be seen is as to whether upon an examination of the plaint and upon proof of the facts narrated therein, the appellants would be entitled to a relief or not. We have no manner of doubt in our mind that in case it is proved that the gift was not made by late Ghulam Mustafa and further that the respondents Nos. 5 and 6 converted to Hinduism and were Hindus at the time of death of Ghulam Mustafa and Mst. Ghulam Fatima, the appellants would certainly be entitled to the relief being claimed by them.
5. Now the learned Trial Court has somehow or the other proceeded to observe that the facts narrated in the said application or the written statement are admitted. We have not been able to find any such admission, at least, in the plaint and there is no other pleadings available on record apart from the plaint and the written statement. Apparently, no additional pleadings were called for by the learned Trial Court. The learned Trial Court has, thus, simply relied, upon its imagination while proceedings to reject the plaint raising substantial questions involving title and possession of the valuable immovable property. So far as the rejection the plaint of earlier suit filed by respondents Nos. 2 and 4 and the mutation of inheritance of respondent No. 6 pendente lite which in any case stands reviewed is concerned, the same shall have to be examined after being duly tendered in evidence.
6. Having, thus, examined the records, we do not find any grounds being made out for rejection of the plaint filed by the appellants. In view of the allegations made by the appellants and the denial by the respondents Nos. 5 and 6, there are issues of law as well as facts to be tried in the suit and this cannot be done without a proper trial after giving reasonable opportunity to both the parties to lead 'their respective evidence. The R.F.A. Accordingly is allowed. The impugned order and decree dated 10.10.1998 of the learned Trial Court is set aside. The result would be that the .Suit shall be, deemed to be pending before the learned Senior Civil Judge, Vehari, before whom the parties shall appear on 26.4.2005. The records shall immediately be remitted to the said learned Senior Civil Judge. Issues arising out of the pleadings of the parties shall be framed and their evidence will be recorded. In view of the joint request being made by the learned counsel for the parties, it is directed that the learned Trial Court shall take all steps to conclude the trial and decide the suit in accordance with law within one year of the said date.
7. A copy of this judgment be immediately remitted to the learned Senior Civil Judge, Vehari.
No order as to costs.