' JAWWAD S. KHAWAJA, J.---The petitioner/plaintiff impugns the appellate decree, dated 6-2-2006 whereby the decree of the learned trial Court, dated 5-7-2004 has been set aside and the declaratory suit filed by the petitioner seeking permanent injunction by way of consequential relief has been dismissed.
2. The facts in this case are simple. The property in dispute between the parties is land measuring 83 kanals, 15 marlas in Mauza Pakka Qila, Tehsil Nankana Sahib. This property was owned by Mst.
Aimna (deceased) who was the sister of the petitioner Mst. Rasoolan Bibi and respondent No,2 Mst.
Ghulam Fatima. Mst. Aimna died on 17-11-1999. The three sisters had a brother, namely, Khan Muhammad who died before Mst. Aimna.
3. The son of Khan Muhammad, namely, Wairs Ali (respondent No,1) has obtained inheritance Mutation No,912, dated 27-5-2000 whereby one half of the suit property has been mutated in the names of the two sisters, the petitioner Mst. Rasoolan Bibi and Mst. Ghulam Fatima (respondent No,2). The remaining one half has been mutated in the name of Waris Ali. Waris Ali further claims to have sold his share of the property to respondent No,3 vide Mutation No,932.
4. It is in the above circumstances that the petitioner/plaintifffiled a declaratory suit claiming that Mutation No, 912 was illegal to the extent that one half of the property of Mst . Aimna (deceased) has been mutated in the name of Waris Ali. It is the petitioner's case that in the presence of the two surviving sisters of Mst. Aimna, and considering that their brother Khan Muhammad had pre- deceased Mst. Aimna. Waris Ali son of Khan Muhammad was not a legal heir and, therefore, was not entitled to inheritance in the estate of Mst. Aimna.
5. The above contention has been accepted by the learned trial Court. However, as noted above, the learned appellate Court has reversed the finding of the learned trial Court and has held that even though Khan Muhammad had pre - deceased Mst. Aimna, his son Waris. Ali was a legal heir of Mst. Aimna. Learned counsel contends that this finding is contrary to the Islamic law of inheritance and, therefore, the appellate decree is not legally sustainable.
6. Learned counsel appearing for respondent No, 3 argued that she had purchased the property bona fide from Waris Ali. There is, however, no mutation of sale appearing on record. Learned counsel for the said respondent was asked to show if any mutation had indeed been sanctioned in favor, of respondent No,
3. He merely reiterated that Mutation No,932 had been sanctioned. He produced in Court a copy of the same. This copy was examined by me even though it was not exhibited on record. This merely shows that a mutation was entered in the relevant register but there is no order sanctioning the same. In the circumstances, it cannot be held that any mutation has been sanctioned in favor of respondent No,3.
' Learned counsel for the petitioner argued that Mst. Rasoolan Bibi (respondent No,3) had been deliberately shown by Waris Ali as a transferee of the suit land to frustrate the claim of the petitioner. It is abundantly clear from the facts of the case that Waris Ali, being the son of Khan Muhammad, who pre-deceased Mst. Aimna, had no right whatsoever in the suit property. In this view of the matter, it is clear that the impugned appellate decree, dated 6-2-2006 is a result of legal error and material jurisdictional irregularity. The same is, therefore, set aside and the decree of the learned trial Court, dated 5-7-2004 is restored. The petitioner shall also be entitled to her costs throughout.