' MAULVI ANWARUL HAQ, J.- This R.S.A. Was earlier allowed by me vide judgment dated 6-7-2001 and the ease was remanded back to the learned District Judge for fresh decision of the first appeal for the reasons and in the manner directed in the said judgment C.P. No,2435-L of 2001 filed by the respondents was converted into an appeal allowed on 23-11-2001 by the Hon'ble Supreme Court of Pakistan and the R.S.A. Was directed to be decided in the light of the said judgment.
2. I have heard the matter accordingly.
3. On 27-11-1979 the appellants filed a suit against the respondents. According to the plaint, the suit-land mentioned in para. l thereof was transferred to one Malooka son of Dalmeer. He died issueless in the year 1969. Inheritance Mutation No,469 was attested on 29-6-1971 in favour of his widow Mst. Budhi respondent No, 1, this mutation was stated to be illegal as the appellants and respondents Nos. 2 and 3 were stated to be the collaterals of the said Malooka and entitled to the residue after settling the share of the said widow. A pedigree table was drawn in para.2 of the plaint. The mutation was stated to have been taken up and decided in the absence and without notice to the said collaterals. A declaration was accordingly sought. Decree for possession was also prayed for. The suit was contested only by the respondent No,l. It was admitted that Malooka was the last male owner of the suit-land and that he died issueless in the year 1969. However, it was pleaded that respondent No,l being the widow was the only, legal heir and as such entitled to the entire estate. It was denied that the appellants and the other respondents are the collaterals of the Malooka. Pedigree table drawn was denied. Following issues were framed by the learned trial Court:--
(1) Whether the present suit is not maintainable in its present form? OPD.
(2) Whether this suit" is not competent? OPD.
(3) Whether Civil Court had no jurisdiction to try this suit? OPD
(4) Whether the suit is not properly valued. If so, its effect? OPD
(5) Whether plaintiffs are estopped to file the suit? OPD{
(6) Whether Mutation No,469 dated 29- 6-1971 sanctioned by A.C: II Lahore is void, inoperative, illegal. If so, to what effect? OPD.
(7) Whether suit is within limitation? OPP.
(8) Relief.
' Evidence of the parties was recorded. Vide judgment dated 8-2-1983 issue No,3 was answered against the respondents. Under Issue No,4 a direction was issued to the appellants to pay court- fee of Rs,8,550. All the other issues were answered against the appellants. The suit was accordingly dismissed. A first appeal filed by the appellants was dismissed by a learned ADJ, Lahore, on 5-12- 1985. While the said first appeal was pending, an application was filed to produce a pedigree table copy whereof had been obtained from India. This application was dismissed for reasons as it was not required by the Court of first appeal to decide the matter and further that the appellants are trying to fill up the lacuna in their case by filing the said application. To my mind, these reasonings are of no relevance in view of the directions issued by the Hon'ble Supreme Court while remanding back the case when, I had already allowed the said application vide my earlier judgment.
4. Dr. Abdul Basil, Advocate/learned counsel for the appellants contends that upon a proper reading of the said pedigree table along with the said evidence on record, it stands established that the appellants stand comiected to the said Malooka son of Dalmeer. Mr. Muhammad Atif Amin, Advocate/learned counsel for the respondents has not raised any objection to the admission of said document and its consideration for decision of the appeal. He however, has pointed out that the document appears to be dubious and the reason stated is that whereas it was filed on the record of the learned Appellate Court on 3-4-1984, the attestation by the several Authorities on the said documents bears the date 13-6-1985 or 17-6-1985 and according to the learned counsel this is an impossibility. He then argues that even if it be assumed that the pedigree table is a valid document, the same is not in consonance with the pedigree table drawn in the plaint. His further contention is that upon a reading of the said document, Jasmal a brother of Malooka is shown to be alive and since predecessors-in-interest of the appellants are further in degree, they will be excluded by L.Rs, of Jasmal and as such they will be having no locus standi to file the suit in the presence of nearer collaterals. The precise contention is that there is no evidence that either Jasmal died issueless or his line had become extinct at any point of time to enable the appellants to inherit the estate of Malooka. Dr. Abdul Basit, Advocate, rejoins to urge that notwithstanding the said anomaly pointed out by the learned counsel, the document as such was produced before the Court and there is no allegation much-less any material on record to suggest that it was tampered with in any manner at any time after its filing in the Court. Regarding the other contentions, he has reiterated his earlier contentions that it is the own case of respondent No, 1 in the written statement as well as in the witness- box that no brother of Malooka was alive when he died.
5. Before, I proceed further, I may note here that the lower Court records were destroyed or lost in the interregnum between the earlier hearing of the appeal and the judgment of the Hon'ble Supreme Court of Pakistan. These were ordered to be re-constructed and the appeal has been heard with reference to the re-constructed records.
6. The respective pleadings of the parties have already been reproduced above whereas the appellants claimed to be collaterals of Malooka the respondent-lady has denied the said fact and has claimed exclusive entitlement to the- estate on the basis of doctrine of return. Appellants Nos. l to 3 are the widow and sons of Himat Khan the original plaintiff No,l According to the pedigree table drawn in para-2 of the plaint, Malooka is son of' Dalmeer son of Seyo Singh son of Bakhshu.
Appellants Nos.4 to 7. Are sons of Saidoo son of Man Khan son of Bakhshu while appellant No, 8 is son of Mangli son of Rajh Khan son of Bakhshu. Appellants Nos.9 and 10 are sons of Wazir son of Mam Raj son of Bakhshu while respondent No,2 is son of Narangi son of Bakhshu. Respondent No,3 is son of Amrao son of Man Khan son of Bakhshu. It will, thus, be seen that according to the plaint, the appellants and respondents Nosf2 and 3 are connected to Malooka deceased through common ancestor Bakhshu with the said intermediaries.
7. Himat Khan the deceased plaintiff appeared as P.W.4. He stated that his great grand-father was Bakhshu who had five sons, namely, Raj Khan, Mam Raj, Kharati, Seyo Singh and Man Khan. Mangli was the son of Mam Raj and Nazru appellant is a son of Mangli. Mam Raj had three sons, Lakhu, Wazir and Aami. Baghmal son of Lakhu is alive while Saidoo and Dallu i.e, the appellants Nos.9 and 10 are the sons of Wazir Aami died issueless. Narangi was the son of Khairati and Aziz respondent is his son. Dalmeer is the son of Syeo Singh and Malooka is son of Dalmeer who died issuesless. Man Khan had four sons Jagmal, Jagdev, Saidoo and Amrao. Jagdev died issueless while Fajru, Sharif, Hanif and Majeed appellants are sons of Saidoo. Khuda Bakhsh respondent is the son of Amrao. In cross-examination, only a suggestion was given and denied by him that they are not the heirs of Malooka. Mst, Budhi respondent appeared as D.W.5 to state that she is the sole heir of her deceased husband. In her cross- examination, she stated that her husband was the son of Dalmeer who was son of Seyo Singh and she does not know whether Seyo Singh had any brothers.
8. According to the said Pedigree table brought from India, Malooka is recorded as son of the Dalmeer son of Seyo Singh son of Bakhshu. Wazir is son of Mam Raj son of Bakhshu. Nazru is son of Mangli son of Raj Mahl son of Bakhshu. Khuda Bakhsh is son of Amrao son of Man Khan while Jagmal is son of Man Khan son of Bakhshu. Narangi is son of Khairati son of Bakhshu.
9. So far as the said objection of the learned counsel is concerned, I find that a certified copy of a Pedigree table at pages 73 to 79 of the file of the RSA wherein it has been noted that Jasmal is dead and his widow is in possession. It is, thus, evident, that Jasmal pre-deceased Malooka who, admittedly, died in the year 1969.
10. Having thus, considered the evidence, I find that Himat Khan plaintiff explained- in detail the Pedigree to establish that the appellants and the other respondents are collaterals of Malooka. On the other hand, respondent No,l in the witness box simply expressed ignorance. The statement made by Himat Khan is supported by the said Pedigree table. I therefore, do find that the respondent-lady could have inherited only her widow's share of 1/4 as Malooka died issueless while the residue 3/4 goes to the appellants and the respondents Nos.2 and 3. The parties being co- heirs, the suit was maintainable in its present form. There is no question of any estoppel as the appellants had throughout been agitating the matter. The question of limitation has also to be decided in favour of the appellants upon proof of their being co-heirs along with the respondent No, 1-lady. The RSA accordingly is allowed. Both the impugned judgments and decrees are set aside and the suit filed by the appellants is decreed as prayed for. No orders as to costs.