1. ' SAHIB KHAN, J.--- This civil second appeal assails the impugned judgment/order, dated 9-5-2002 passed by the District Judge, Sakardu, whereby he accepted the 1st appeal preferred by defendant/ respondent and de-suited the appellant/plaintiff.
2. ' In his plaint Muhammad Ali, plaintiff has claimed to be sole legal heir of one Muhammad, whose property has become bone of litigation in between the parties. It is contended in the plaint that whereabouts of Said Muhammad who happened to be real brother of maternal-grandmother of the plaintiff were not known and unheard of prior to revolution war of Sub-Continent in 1947. The unheard had gone to India leaving behind his real sister Lalabi (maternal-grandmother of the plaintiff) with his paternal-uncle Fazil (father of defendant). Lalabi got married with one Baqir. She gave birth to Mst. Kulsoom Bi, while plaintiff (Muhammad Ali) is the son of Kulsoom Bi. Since the time when Muhammad unheard left the area, the property in dispute remained under the management and utilization of defendant/respondent and his father Fazil who used to pay some portion of product from the property but discontinued it some 5/6 years back from institution of present suit. Plaintiff prayed for a decree as claimed in the plaint.
3. ' Defendant/respondent filed his written statement contesting the claim of the plaintiff on certain legal and factual grounds. Defendant defended the case mainly on two grounds below along with some preliminary points:-
(i) That no share of property was devolved to Mussa (father of Muhammad unheard) from his father Ghulam, as the said Mussa had died in the lifetime of his father Ghulam hence, Muhammad unheard inherited no property from his father Mussa.
(ii) Defendant claimed adverse possession as well as according to him suit was time-barred. The issues in all framed in the case were as under:-
(1) Is the plaintiff being nearest heir entitled to get the legacy of Muhammad on of Mussa unheard?
OPP
(2) Is the suit with time? OPP
(3) Is the suit hit by adverse possession? OPD
(4) Is the suit hit by the principle of estoppel? OPP
(5) Whether no cause of action accrued and the suit presented in the wrong forum, hence suit is liable to be rejected under Order VII of C.P.C.? OPD
(6) Whether Muhammad had gone to his account in the lifetime of his father Ghulam and nio heirship was developed upon him? OPD
(7) Whether Muhammad as per statement of his mother dated 13-2-1967, has denied 20 years prior? OPD
(8) To what relief plaintiff is entitled? OPP ' After recording the evidence examined by the parties, the trial Judge found the claim to be duly proved and thus, granted a decree as prayed for in the plaint. Being aggrieved defendant preferred 1st appeal against the judgment/decree, dated 30-5-1991. The learned District Judge accepted the appeal of the defendant/respondent, reversed the findings given by the trial Judge and de-suited the appellant/plaintiff. Feeling himself aggrieved from the impugned judgment/order, dated 9-5-2002, appellant has assailed the same through this civil second appeal.
4. ' I have heard the arguments advanced by the learned counsel for both side. Redord perused and guided myself from the case-laws referred by the learned counsel for both sides.
5. ' At the very outset of arguments the learned counsel for the appellant requested for conversion of this appeal as revision petition. Other side has got no objection hence, I convert this appeal as revision petition. The learned counsel for the petitioner argued that the learned 1st Appellate Court has misconceived the facts of the case and findings are result of ignorance of law hence, the findings are not maintainable. He further submitted that the learned 1st Appellate Court has ignored the documentary evidence available on record and drawn wrong inferences from the evidence as such the finding lacks judicious thought and reasoning. He in support of his contention referred the following case-laws:-- ' PLD 1987 SC p.1, 2001 SCMR p.1036, 2004 SCMR p.414, PLD 2005 Lah. P.578, 1983 CLC p.414, 1986 CLC p.770 and 2005 MLD p.364.
6. ' The learned counsel for respondent submitted that the suit is time-barred and defendant is enjoying adverse possession since departure of unheard Muhammad from the area. The learned counsel emphasized and stressed that the plaintiff has hopelessly failed to prove its case as required under Article 124 of Qanun-e-Shahadat Order of 1984. He in this context was of the opinion that plaintiff cannot benefit from the above referred Article of Qanun-e-Shahadat until and unless he proves actual date and time of death of the unheard. He forcefully argued that nothing is on record disclosing the time and date of the death of unheard. He in support of this version tried to get help from the following case-laws:-- PLD 1988 SC p.682-83, PLD 1978 Lah. P.24, PLD 1987 SC p.1 and PLD 1987 Pesh. P.6.
7. ' It is very important to note that the parties are not in controversy with regard to sole heirship and pedigree as given by the plaintiff vide para. No,1 of the plaint and admitted by the defendant vide same para. Of the written statement. Secondly, defendant has not contested the plea of the plaintiff regarding the period of missing and unheard of since given in the plaint.
8. ' The facts of the case especially the defence taken today by the counsel for defendant with regard to proof of actual date and time of death of the unheard of hinges the interpretation of Article 124 of Qanun-e-Shahadat Order, therefore, it will be pertinent to reproduce the same, which reads as follows:-- Article 124. Burden of proving that person is alive who has not been unheard for seven years.--- When the question is whether a person is alive or dead, and it is proved that he has not been heard for seven years by those who would naturally have heard of him if he had been alive. The burden of proving that he is alive is shifted to the person who affirms it."
9. ' In a case titled Muhammad Sarwar and others v. Fazal Ahmed and others reported in PLD 1987 SC page 1. The Division Bench of the august Court holds that:-- "Section 108 of the Evidence Act merely creates a presumption that the person who has not been heard for seven years, is dead, on the date of suit and does not refer in any way as to the date of his death, which has to be proved in the same way as any other relevant fact in the case."
10. ' In another case reported in PLD 1968 Pesh. Page 172, it was held by the brother Judge of the Court that person not heard for seven years presumption attaches that he is dead but further presumption about time of death cannot be raised. Question not merely of person being dead but of his death of particular time. Onus of proving that he died at particular time shifts on the person asserting the same.
11. ' In the absence of any specific pleadings from either side on the point of either actual or presumed death, I do not think that I should allow the present belated contention of the learned counsel for respondent to prevail at the stage of second appeal. It is considered view of the superior Courts that when the question is not merely one of death but of death at a particular time, there is no presumption as to the time, but the party agitating death on particular time must prove it by evidence like other relevant facts of the case.
12. ' It will appear from resumption of law that the Court or the parties cannot depart from the issues.
13. Although Order XVI, rule 2, C.P.C. Vests the Appellate Court a discretion to allow a party to urge any ground of objection not set forth in the memo. Of appeal but this ground at least one be that has been raised and debated in trial Court and not one which has completely been left out in the pleadings. It is evident from the pleadings of the parties that they are not in confrontation at any point determinable regarding actual time of death of the unheard of, if defendant could drive any right during particular time. He was very much able to raise the defence. However, to allow question of law and facts to be raised in appeal for the first time would clearly prejudice the other party and would defeat ends of justice.
14. ' Defendant/respondent had relied upon another main ground that Mussa (father of unheard of) had died prior to his father Ghulam and inheritance of said Ghulam was not devolved to Mussa therefore, Mussa had no property to be devolved to his son Muhammad unheard. This stand of the defendant is negated by the document Exh.D./1, an attested copy of Mutation No,165 attested on 32 Sawan 1997 Bikrami. Through this mutation estate of deceased Ghulam was mutated in the name of Muhammad, then minor (unheard of) under the management of his uncle Fazil father of the defendant. The mutation under reference has not been challenged by the defendant till date and still intact. Rather defendant himself has relied on and produced before the Court and exhibited as Exh.D/1. The document being a public document is admissible in evidence under Order XIII, rules 1 and 4. It was held in 1983 CLC page 414 that such mutation is admissible in evidence without further proof to the extent of its entries.
15. ' Similarly, the evidentiary value of the document, evidence is held more worthy as compared to oral evidence. 1986 CLC p.770 and 2005 MLD p.364.
16. ' Entries shown in Exhs.D/3, D/4 and D/5, further acknowledge the contention made by the plaintiff.
17. Some of D.Ws. Have deposed in favour of defendant but as stated above cannot overlap the documentary evidence on file. I could not find anything on the record of the case that how and why the plaintiff can be stopped for non-filing of suit or claiming the inheritance from ancestral property. Thus, the preliminary objection of estoppel seems to be flimsy one.
18. 'According to the Muslim Personal Law of Inheritance in such a situation plaintiff remains entitled to ownership of 1/2 share of the property entered in Khewat No,10 as he has stepped into the shoes of Muhammad unheard of and became co-owner of the joint property by operationing of law and it is settled that there is no limitation for a co-sharer to enforce his such a right against another co- sharer. 2004 SCMR p.392. Likewise, it is also an eminent principle that period of limitation shall not impede of inheritance, thus, both the suits of plaintiff could not be de-barred by limitation.
19. ' The view taken by District Judge that the suit is barred on account of limitation is based upon erroneous understanding and application of law.
20. ' The upshot of what has been discussed above, is that the impugned judgment/order, dated 9-5- 2002 passed by District Judge, Sakrdu, is set aside and uphold the judgment/decree, dated 30-5- 1991, passed by Civil Judge 1st Class Skardu.
21. ' No orders as to cost. File. These are the reasons for my short order, dated 27-4-2007.