Mian Khan (hereinafter to be referred as the petitioner) assails validity of the concurrent findings of facts recorded by two Courts below, whereby, respondent Mst. Khatoon was adjudged and declared as daughter of deceased Dara, predecessor in interest of the parties.
2. Precisely the relevant facts of the case are that deceased Dara was owner land subject matter of the lis at hand fully described in the head note of the plaint. Dara died in 1943. According to the law then prevalent, the property of deceased Dara was devolved upon Mst. Allan mother of the plaintiff/respondent (Mst. Khatoon). After enforcement of Shariat (Application Act 1962) Mutation No, 57, was sanctioned in favor of Mst. Allan Bibi as widow and Ahmed Dad real brother of deceased Dara excluding the respondent/plaintiff, who challenged the above said mutation by filing an appeal before the Collector, which was dismissed on the ground of limitation on 4.12.1968.
Thereafter, she filed a revision before the Commissioner Revenue Multan which was accepted vide order dated 5.5.1970 by which case was remanded back to the Collector for decision afresh. Said remand order was challenged by the predecessor in interest of the petitioner before the Board of Revenue which was accepted vide order dated 6.7.1977. Subsequently, respondent filed a suit assailing the sanctioning of Mutation No, 57 and the orders of the MBR dated 7.6.1977 which was dismissed by the learned Civil Judge Okara vide judgment dated 31.1.1984. Appeal arising therefrom was dismissed as withdrawn by plaintiff/respondent with a permission to file a fresh suit vide order dated 15.7.1985, hereafter, respondent plaintiff filed suit for declaration & permanent injunction, praying that sanctioning and attestation of Mutation No, 57 dated 10.2.1965 and order of the BOR dated 7.6.1977 may be declared illegal void and inoperative upon the rights of the plaintiff, and she be declared real daughter of Dara deceased.
3. Suit was contested by the petitioner and Defendant No, 1 to 12 by filing the written statement on various grounds including limitation.
4. That the respondent Mst. Allan Bibi mother of the respondent plaintiff filed a conceding written statement. That the learned Civil Judge framed the issues and recorded evidence of the parties and consequently decreed the suit by way of judgment & decree dated 30.10.2002 holding that respondent plaintiff Mst. Khatoon was the real daughter of deceased Dara and being to sharer the law of limitation was not applicable in the case of inheritance. Being aggrieved, petitioner filed an appeal which was dismissed by learned District Judge Okara vide Judgment and decree dated impugned 21.4.2003, hence this CR.
5. Mr. Nusrat Javed Bajwa Advocate learned counsel for the petitioner assails concurrent findings of both the Courts below on the crucial issues 2 and 6 i,e,, the question of limitation and parentage of the respondent plaintiff. It is contended by the learned counsel for the petitioner that since the earlier suit of the petitioner which was dismissed on 31.1.1984 and appeal filed against the same withdrawn on 15.7.1985 and present suit being filed on 10.2.1996 was hopelessly barred by time. It is further contended that at the time of attestation of mutation as limited owner in the name of Mst.
Allan Bibi wife of Dara deceased, he was shown issuless, and objection was raised by Mst. Allan wife of Dara deceased. Hence, the learned counsel argued that findings recorded by the two Courts below on the issue of parentage of respondent plaintiff Mst. Khatoon are result of mis-reading and non-reading of the evidence by the petitioner and same are liable to be set aside on that score. To support his contentions, learned counsel relies on PLJ 1984 Lahore 38 Sadar Din Vs. Allah Rakha, NLR 1986 Rev. 157 Mst. Zeba and 12 others Vs Member III Board of Revenue Balochistan and 2 others and PLD 1989 SC 568 Nasir Abbas Vs Manzoor Haidar Shah.
6. On the other hand, Mr. Saif ul Malook, Advocate for Mst. Khatoon respondent/plaintiff refers to Ext.P1 copy of the attestation of mutation 57 dated 5.2.1965 to contend that revenue functionaries while drawing the family tree of Dara deceased, name or respondent Mst. Khatoon conspicuously finds mention as daughter of Dara and Mst. Allan. Learned counsel also draws this Court's attention to the statement of DW2 namely Muhammad Boota Assistant DHQ Hospital Sahiwal, who produced the birth certificate of Mst. Khatoon as Ext.D32 showing the registration of her birth at Serial No, 439 dated 11.3.1933 having born on 8.3.1933 and shown and written to be daughter of Dara and grand daughter of Sardara. Learned counsel further draws this Court attention to the cross-examination of DW2, wherein, he admits that birth certificate produced by respondent plaintiff Exh.P6 was duly issued by the office of DW2 and that Serial No, 439 written upon Ext.P6 was correct. Adds that DW2 further admits that on Ext.P6 name of the plaintiff as Mst. Khatoon was also correct and that her date of birth according to the record was 8.3.1933 and the caste of Mst. Khatoon upon Ext.P6 was written as Sial Muslman which was correct.
7. Concluding his arguments with reference to the deposition of DW2 learned counsel for the respondent contends that Ext.P6 produced by respondent/plaintiff to prove that she was daughter of the deceased Dara, was admitted even by the witness produced by the petitioner/defendant, and in that context Ext.D32 adequately sanctified all material particulars including serial number 439 name of the plaintiff as respondent Mst. Khatoon, name of the father of Mst. Khatoon as Dara and name of the grandfather as Sardara and the date of birth as 8.3.1933 and date of registration of birth as 11.3.1933. Hence, it was admitted by the witness of the petitioner/defendant that respondent plaintiff's birth certificate was correct with the parentage of Dara deceased.
Elaborating the scope of the right of succession by the heir of deceased owner, learned counsel relies on 2005 SCM R 1217 Muhammad Zubair and others Vs Muhammad Shari f, "Right to succession of deceased owner--Scope and Proof Inheritance mutation without proving relationship between claimants and deceased owner--Evidentiary value--Property of deceased would revert to his legal heirs and his succession would be deemed to have opened on his death-- Property of muslim deceased would he deemed to have devolved on all those persons, who were his heirs according to sharia on the date of his death and in case of death of any of them, his share would devolve on his heirs--Right of succession would not be defeated by law of limitation or principle of res judicata as no law or judgment could over ride law of sharia being a superior law".
8. Further relies on 2005 SCM R 1447 Muhammad Iqbal and 5 others Vs Allah Bachaya and 18 others "Inheritance--Limitation--Bar of limitation is not applicable to right of inheritance which does not extinguish such right by afflux of time--Right' Of inheritance of a female, recognized in Sharia cannot be denied on the basis of oral surrender of such right by a female in favor of male member of family and in any case there is no concept of estoppal to deprive a person from his right in the inheritance in Islam"
9. Learned counsel for the respondent further relies on 2005 SCM R 1859 Arshad Khan Vs Mst.
Resham Jan and others-- Declaration of title--Inherited property--Delay in claiming share in inherited property would not defeat the right of a person in inheritance and if he is non suited on such technical ground, his right of inheritance would be defeated.
10. Arguments heard. Careful examination of record transpires that respondent successfully substantiated through unimpeachable and credible documentary evidence Ext.D31, 32 and Ext.P1 that she was the daughter of Dara deceased, and thus she was held and rightly so to inherit the legacy left by her late father Dara. When confronted with the established facts on record, learned counsel for the petitioner candidly conceded that in those very documents submitted by the , petitioner before the trial Court, it is explicitly mentioned therein by the concerned authorities that respondent was the daughter of Dara deceased. Documentary as well as oral evidence makes it abundantly clear that from the day one petitioner has been maneuvering to deprive and harass the respondent of her legitimate right of inheritance granted to her not only by the statute but guaranteed by the Holy Quran in Sura Nisa with mathematical precision and admirable clarity.
11. As regards impediment of limitation as being canvassed by the learned counsel for the petitioner, the contention being totally fallacious and preposterous is bound to be repelled. In this particular context suffice it to add that it is now well established proposition of law that embargo of limitation shall not be available and attracted and totally inapplicable in the matters of inheritance. By so holding this Court is fortified by a celebrated and landmark judgment of the Honorable Supreme Court of Pakistan reported as PLD 1990 SC 1 resolving identical issues once for all so as to emancipate unfortunate women of recurring persecution and harassment of protracted litigation/trials for the rest of their lives in proving their parentage so as to inherit the legacy of their late fathers. Look at the plight of the unfortunate plaintiff/respondent Mst. Khatoon who was being deprived of her right of inheritance from the day one. Record bears it out that she has been clamoring to be the real daughter of Dara deceased, but the right of inheritance was being frustrated and denied by her own kith and kins so as to deprive her of the legacy of her late father Dara.
12. On careful examination of the concurrent and consistent findings of facts arrived at by both the Courts below, unquestionably those are based on objective scrutiny and fair analysis of evidence and material available on record, and the sole crucial issue as to the parent of plaintiff/respondent was dealt with and resolved objectively with judicial application of law and mind. On the scope and maintainability of civil revision against concurrent findings of the Courts below in such like cases, this Court is guided and enlightened by the law laid dawn by the Apex Court in the cases reported as PLD 1994 SC 291 Haji Muhammad Din Vs Malik Muhammad Abdullah, 2001 SCM R 798 Abdul Qayyum through legal heirs us. Mushk-e-Alam and another and PLJ 2006 SC 230 Abdul Mateen and other Vs Mst. Mustakhia it was held that "re-examination and re-appraisal of evidence was not permissible in revisional jurisdiction even if conclusion drawn by on question of fact was erroneous and that revisional power of the High Court was exercised for correcting an error committed by subordinate Courts and that mere erroneous decision would not call for interference unless it was established that decision had been based on no evidence, inadmissible evidence or it was perverse so as to cause grave injustice".
13. In nutshell, the learned counsel for the petitioner has failed to point out any illegality, ambiguity, perversity, irregularity or an iota of evidence purportedly misconstrued by learned Judges of the Courts below, rather judgments and decrees of both the Courts below having been passed with lawful authority and jurisdiction are held to be totally unambiguous and unexceptionable.
14. Foregoing resume of facts and reasons would lead to the one and the only irresistible conclusion that the captioned civil revision being palpably misconceived and devoid of any merit stands dismissed accordingly.