' JAWWAD S. KHAWAJA, J.---The respondents have been served. Moreover, the name of the learned counsel for respondents. Nos. 1 to 6 duly appears in the cause list. Despite repeated calls none has appeared for the respondents. They are therefore, proceeded against ex parte.
2. Petitioner No,1 (Muhammad Sharif) is the brother of petitioner No,2 (Mst. Sakina Bibi). They impugn the appellate judgment and decree, dated 2-2-2006 whereby the decree of the learned Trial Court, dated 21-7-2005 was set aside and a declaratory suit filed by the respondents-plaintiffs was decreed.
3. The facts of this case are simple. The property in dispute between the parties is land measuring 5-kanals approximately, which was mutated in the name of Mst. Sakina Bibi (petitioner No,2) by way of inheritance as widow of Yara deceased, vide Mutation No,1089 sanctioned on 20-5-1975.
Yara died issueless. The respondents-plaintiffs are the brothers and/or legal heirs of brothers of Yara deceased. They filed a suit to challenge the aforesaid Mutation No,1089 on the ground that Mst. Sakina Bibi was not a widow of Yara deceased. The suit was resisted by Mst. Sakina Bibi and her brother Muhammad Sharif. The interest of Muhammad Sharif in the property is that vide Mutation No,2870, Mst. Sakina has gifted the suit property to him on 10-12-2002. The learned trial Court framed as many as six issues on which the parties led evidence. Issue No,1 which was framed in the following terms is dispositive of the case:-- "Whether the suit-land mentioned in the head-note of the plaint is owned and possessed by the plaintiffs? OPP
4. Tharaj (respondent No,6), who is a brother of Yara deceased, appeared as the sole witness on behalf of the respondents-plaintiffs. His testimony is contradictory and even the respective ages given by him for D Yara and himself show, prima facie, that he is not truthful. When he appeared as P.W.1, he stated that the was seventy years old. However, during his testimony, he deposed that Yara had died seventy years earlier and that he was five to ten years younger than Yara. Based on this statement the age of P.W.1 comes to more than 105 years, Secondly P.W.1 also stated that Yara was married. This contradicts the contents of the plaint wherein it has been averred that Yara had never married. Furthermore, learned counsel contends that in the plain contradictory pleas were taken. It was firstly stated that Yara did not marry. However, an alternate plea was raised that even if Yara had married, he was an adherent of Fiqah Jafria and, therefore, Mst. Sakina Bibi, as his widow, was not entitled to inherit agricultural land. Such plea, it is argued on behalf of the petitioners, cannot be true because respondents Nos. 3 to 6 are the brothers of Yara. It cannot be accepted that they were unaware ofthe marital status of Yara. Learned counsel for the petitioners has argued that the sole object of the suit is to deprive the petitioners of their rights in the suit property. In any event, it was contended that the assertion that Yara was a follower of Fiqah Jafria has not been proved.
5. Learned counsel for the petitioners has argued that, in view of the above circumstances, it is clear that respondents had failed to prove their case and, as a consequence, the learned Appellate Court was not E justified in setting aside the decree of the learned trial Court. This contention is well-founded and is based on the circumstances, noted above, which remain uncontroverted.
6. In view of the foregoing, this petition is allowed.
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