' JAWWAD S. KHAWAJA, J.-~ Muhammad Shafi (petitioner/defendant) impugns the appellate decree dated 6-4-2006 whereby the decree of the learned trial Court dated 31-3-2005 was set aside and the suit filed by Muhammad Nawaz (plaintiff/respondent No, 1) was decreed.
2. The plaintiff/respondent (Muhammad Nawaz) is the brother of the petitioner Muhammad Shafi.
Respondent No, 2 (Muhammad Murid) is also their brother, while respondents Nos.3 and 4, namely Mst. Sallah and Mst. Jannat, are their sisters. Respondents Nos.5 to 8 are the L.Rs, of Mst. Jannat, who have been impleaded as parties after the death of Mst. Jannat.
3. The claim set up by the respondent/ plaintiff was that the suit property had originally been allotted to the father of the parties, namely, Saleh under the Ejected Tenants Scheme but after the death of Saleh, the petitioner/defendant Muhammad Shafi had obtained entries in the revenue record showing allotment in his name alone to the exclusion of the respondents. According to the respondent/ plaintiff all legal heirs of Saleh were entitled to the suit-land being his legal heirs.
4. The suit was resisted by the petitioner Muhammad Shafi who took up the plea that the allotment had been made in his favour after the death of his father. The other brother, namely, Muhammad Murid (respondent No,2) and the two sisters named above, acknowledged that the allotment had been made in favour of the petitioner who was in cultivating possession of the suit-land.
Muhammad Murid also appeared as D.W.2. He reiterated that the allotment was made in favour of the petitioner and proprietary rights were also conferred on him but he added that this was on account of his being the elder of the family. In his testimony Muhammad Murid also deposed that the petitioner had given, 10-Kanals each to him and to the respondent/plaintiff by way of guzara.
5. The parties led evidence. The learned trial Court dismissed the suit holding that Muhammad Shafi was allotted the land in his own right and not as a legal heir of Saleh. This finding, however, as noted above, has been reversed by the learned appellate Court. I have gone through the appellate judgment, which proceeds on valid reasoning by holding that the allotment was the entitlement of Saleh deceased and, therefore, after his death, all legal heirs were entitled to the same. To this extent the appellate decree is not open to exception.
6. Learned counsel for the petitioner, however, states that in view of the written statement submitted by respondents Nos.2 to 8, the petitioner was entitled to a decree to the extent of the shares of the said respondents. The learned appellate Court has, however, decreed the suit as prayed for by the respondent/plaintiff Muhammad Shafi.
7. Only Muhammad Nawaz plaintiff- respondent No,l and Mst. Sallah deceased (respondent No,3) had challenged the conveyance of proprietary rights in favour of the petitioner Muhammad Shafi.
The other respondents, namely, Muhammad Murid and the L.Rs, of Mst. Jannat deceased (respondent No,4) had accepted the conferment of proprietary rights in favour of the petitioner through their written statement. Today learned counsel for Muhammad Murid (respondent No,2) confirmed that his client has no objection if the impugned decree is modified because defendant No,2 had accepted the claim of the petitioner as owner of the suit property.
8. In the foregoing circumstances, the impugned decree is modified. The parties shall be entitled to the following shares in the suit property:-- ' Petitioner Muhammad = 5/8th share Shafi ' Respondent-plaintiff = 2/8th share ' Muhammad Nawz ' Mst. Sallah = 1/8th share ' It is pointed out that Mst. Sallah has died and is now succeeded by her L.Rs, in the circumstances, the L.Rs, of Mst. Sallah shall be entitled to inherit her share in accordance with the Islamic Law of inheritance.
9. This petition is, therefore, allowed partially in the above terms.