' MAULVI ANWARUL HAQ, J,- On 2-2-1993 the respondents filed a suit against the petitioners.
According to the plaint, Kaloo, Ata Muhammad and Kahuna were the sons of Fattu. The respondents Nos.l and 2 are the children of Nizam Din son of Kahuna while respondents Nos.3 to 6 are the children of Lai Din son of Kahuna while the petitioners are the progeny of Suba son of Kaloo.
The said Ata Muhammad had a claim against which the land was allotted in Tehsil Wazirabad. Ata Muhammad pre- deceased the said Lai Din and Nizam Din sons of Kahuna as also Suba son of Kaloo inheritance Mutation No.31 attested on 17-12-1959 whereby 1/2 share was given to the respondents while 1/2 was given to the petitioners. According to the respondents, they were entitled to 2/3rd share while the petitioners were entitled to 1 /3rd share and not only this later on the names of the petitioners were got omitted from the revenue records completely. They accordingly sought a declaration. The petitioners admitted the said relationship between the three brothers. As to the said inheritance mutation, it was simply stated that it was correctly attested. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit on 27-9- 1997. A learned A.D.J., Wazirabad allowed the first appeal of the respondents and decreed the suit on 6-12-1998.
2. This civil revision was allowed by this Court vide judgment dated 19-7-2001 and the case was remanded for a fresh decision on all the issues including issues Nos.2 and 5. The respondents filed C.P. No.2957-L of 2001 which was converted into an appeal and allowed on 29-11-2006 by the Hon'ble Supreme Court of Pakistan with the direction that the revision should be decided by this Court on its facts and circumstances in accordance with law.
3. Learned counsel for the petitioners has pressed Issues Nos.2 and 5, which pertained to jurisdiction and limitation respectively. According to the learned counsel, since the question of inheritance had been decided by the Settlement Authorities in accordance with para.46 of the West Pakistan Rehabilitation and Settlement Scheme, 1956, the civil Court had no jurisdiction to adjudicate the same notwithstanding the fact that the mutation is neither supported by the Muslim Personal Law nor by the custom. According to him, the mutation was. Attested in the year 1959 and the suit having been filed in, the year 1993 was hopelessly barred by time. Learned counsel for the respondents, on the other hand contend that the mutation having been attested patently against law affecting the rights of inheritance of the parties, the civil Court had the jurisdiction to interfere.
According to them in view of the admitted facts of the case, the estate had to be inherited by Suba, Lai Din and Nizam in equal shares. As to the question of limitation, they cite the case of Ghulam Ali and 2 others v Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) which has been followed by this Court in the case of Mohsin Khan and 3 others v Ahmad Ali and 2 others (PLD 2004 Lahore 1) to urge that there is no question of limitation where parties are co-heirs and consequently co-sharers.
4. I have gone through the copies of the records, with the assistance of the learned counsel .For the parties. I have narrated above the contents of the plaint, which are admitted so far as the detail of relationship between the parties is concerned. It will be noted that the dispute is regarding the estate of Ata Muhammad son of Fattu. Admittedly Kaloo and Kahuna were his brothers. Suba the son of Kaloo is the predecessor-in- interest of the petitioners while Lai Din and Nizam Din sons of Kahuna are the predecessors-in- interest of the respondents. Muhammad Yousaf respondent appeared as PW-1 and after explaining the said relationship categorically stated that when Ata Muhammad died, Lai Din, Nizam Din and Suba were alive. Not a single question was put to challenge the said statement in the course of cross-examination of the said witness. Muhammad Inayat Petitioner appeared as DW-1. In his examination-inchief, he simply stated that they have hot practised any fraud in the matter of attestation of the said mutation but stated that the mutation was correctly attested. In his cross-examination, he admitted that Fattu had three sons, namely, Kaloo, Kahuna and Ata Muhammad. Kahuna had two sons Lai Din and Nizam Din. Ata Muhammad had died in India and his claim came to Pakistan. However, according to the said mutation, half of the estate was mutated in favour of Lai Din and Nizam Din and half in favour of the respondents e.
Successors of Suba. He did not at all state or deny that when Ata Muhammad died, Suba son of Kaloo and Lai Din and Nizam Din sons of Kahuna were alive. It will be seen that ail the said three persons i.e. Suba, Lai Din and Nizam Din were brother's son of Ata Muhammad. Under the Islamic Law, all three of them were to get equal share in the estate of their paternal uncle Ata Muhammad who had admittedly died issueless.
5. The Mutation No.31 Exh.P. 1 narrates that the estate of Ata Muhammad is being mutated in favour of Lai Din and Nizam Din " " one half. Ali Muhammad, Wali Muhammad Ghani Muhammad, Shafi and Inayat " Qifijj' one half. It will be seen that the said five persons have been apparently treated as the sons of the son of Ata Muhammad, which is nobody's case. The said persons, admittedly, are the sons of Suba son of Kaloo. It stands proved on record that Ata Muhammad pre-deceased Suba as well as Lai Din and Nizam Din. The mutation, therefore, is certainly against the Muslim Personal Law, which, prima facie, governs the matter.
6. Learned counsel for the petitioners has tried to argue that the mutation was attested in accordance with some custom. However, as to what that custom was has neither been pleaded nor is there any evidence on record that the deceased was governed by any custom in the matter of inheritance, I, therefore, do agree with the learned ADJ that the land of Ata Muhammad had to be mutated in favour of his brother's sons, namely, Suba, Lai Din and Nizam Din in equal shares i.e. l/3rd each and as such the respondents were entitled to 2/3rd whereas the petitioners are entitled to l/3rd share in the said estate.
7. Coming to the question of jurisdiction, learned counsel for the parties have not been of much assistance in the matter. I have examined the question on my own I find that in the case of Muhammad Siddiq and 2 others V. Muhammad Sharif and 2 others (1992 SCMR 2260) the Hon'ble Supreme Court held that civil Court would not be having jurisdiction qua a dispute of inheritance decided by Rehabilitation. Authorities at a point of time before the confirmation of the allotment of the land to the deceased right holder. However, in a latter judgment in the case of Siraj Din through L.Rs. And 2 others v. Akbar Ali and others (2005 SCMR 921) a different view has been taken and in presence of findings that a particular person was the sole legal heir of the deceased allotted, the inheritance mutation attested by the Settlement Authorities could be interfered with by the civil Court since in the present case as well, it stands prove rather admitted on record that Ata Muhammad was survived by three brother's A sons and as such the said three persons were to get the land in equal shares. I, therefore, do hold that in the facts and circumstances of the present case where the mutation is found to be patently against law as well as admitted facts of the case the same has been competently set aside by the learned ADJ.
8. So far as the question of limitation is concerned, admittedly the parties are coheirs. There is not even an allegation of ouster, no question of limitation, therefore, would arise in the matter of the suit filed by the respondents for declaration of their rights of inheritance. The civil revision is accordingly dismissed but without any orders as to costs.