' MUHAMMAD NOOR MESKANZAI, J.--- This revision petition is directed against the order/decree dated 25th November, 2004 passed by Additional District Judge-V, Quetta, whereby; appeal filed by petitioners against the judgment/decree dated 2nd December, 2003 passed by Civil Judge-V, Quetta was disposed of by giving findings in favour of respondents and Issue No,VI in respect of relief clause was modified.
2. The facts, in brief of the case are that respondents Nos.1 and 2 filed a suit for declaration, partition, possession, permanent injunction and recovery in respect of property bearing Khasra Nos.378 to 385, Khatoni No,82/86, Khewat No,68, Measuring 5093 sq. Fts. Situated at Mohal and Mouza Ward No,34, Tappa Urban Tehsil and District, Quetta, situated at Jamait Ray Road, Quetta.
According to plaint, the property in question is ancestral, which was left by predecessor in interest of the parties namely Samandar Khan. It was case of the plaintiffs that Samandar Khan had contracted two marriages, out of first marriage four daughters i,e, (i) Fatima Bibi (ii) Zainab Bibi (iii)
Jan Bibi and (iv) plaintiff No,2 i,e, Marryum Bibi were conceived, except plaintiff No,2 all the three daughters have died and out of second marriage two sons and one daughter i,e, defendants Nos.1, 2 and 3 have born. The predecessor in interest of parties i,e, Samandar Khan died in the year 1962- 63 and after his demise, Wirasat-e-Inteqal was effected perhaps in the year, 1994. It was further mentioned in the plaint that plaintiff No,2 out of her share gave 565 sq. Fts to plaintiff No,1, who is the real son of plaintiff No,2. According to plaint, the property in question was consisting upon five houses and two separate rooms and the construction whereof was carried out by late Samandar Khan. It was also mentioned that the property in question was given on rents to different persons, but nonetheless eviction applications were filed with consent of plaintiffs. Plaintiffs were apprehending that defendants with connivance of official respondents got mutated the property illegally and unlawfully. Ultimately they sought following relief:-
(a) declare that plaintiff No,2 is the legal heir of late Samandar Khan;
(b) declare that plaintiff No,2 is the co-owner of the property in question;
(c) declare that the plaintiff No,2 has rightly transferred 565 sq. Fts to plaintiff No,1;
(d) declare that plaintiff No,1 is the owner of property measuring 565 sq. Fts out of 5093 sq. Ft;
(e) declare that plaintiffs are entitled to receive share of rent amount from the defendants; (0 declare that the defendants have no lawful authority to mutate the entire property in their names;
(g) restrain permanently the defendants from mutating the property in their names or in any other's name;
(h) restrain permanently the defendants Nos.1, 2 and 3 from changing the nature of the property in question in any way demolishing, constructing or its delivery to any other person;
(j) restrain permanently the official defendants for its mutation;
(k) direct the official defendants to conduct a survey and partition the same as per shares according to the revenue record;
(1) direct the defendants to partition the property in question as per law to deliver the possession to the plaintiffs;
(m) any other relief which this court deems fit and proper in the circumstance of the case may also be awarded;
(n) cost of the proceedings may also be awarded in the interest of justice;
3. While filing written statement, defendants raised various objections regarding maintainability of the suit, limitation, valuation and competency of forum as well. It was stated by defendants that Inteqal No,259 is based on forgery and fraud and is illegal. On merits it was stated that after the death of Samandar Khan, the entire shares of plaintiff No,2 and other legal heirs of sister of plaintiff No,2 were given to them and after receiving their shares in the shape of money for the property in question, they have no concern or connection or any right over the property in question. It was further mentioned that since plaintiffs and other shareholders have been given their share by making payment to them in cash that is why they have remained silent, however, Inteol-e-Wirasat was claimed to be a forged document. Out of pleadings of the parties, following issues were framed:-
(1) Whether suit is time barred and is liable to be dismissed?
(2) Whether suit is not maintainable in its present form?
(3) Whether suit is liable to be rejected in view of L/O "C"?
(4) Whether suit is liable to be dismissed in view of L/O's D, E. G. H and J of W/S?
(5) Whether plaintiffs are entitled for relief claimed?
(6) Relief?
4. After framing of issues, respondents produced P.W.1 Mushtaq Ahmed, P.W.2 Abdul Khaliq, P.W.3 Muhammad Qahir Khan, P.W.4 Hameeda alias Abdul Karim, P.W.5 Ahmed Khan, who produced the revenue record Ex.P/1-A and Ex.P/3-A, P.W.6 Faiz Muhammad, who produced register No,SQ regarding partition, P.W.7 Abdul Karim, who is official witness and produced Ex.P/4-A and thereafter plaintiffs got recorded their statements through attorney. Respondents examined D.W.1 Riaz Ahmed, D.W.2 Shaukat Ali. D.W.1, who was tenant of the disputed property, whereas; D.W.2 is representative of Sui Southern Gas Company, who produced Ex.D/1-A, D.W.3 Taj Muhammad, who stated that he has come to know that partition has been effected among the heirs of late Samandar Khan and sisters have been given money against their share in the year, 1991, D.W.4 Muhammad Ali, who is representative of WAPDA. According to him, person in possession of property can apply for connection, D.W.5 Muhammad Ramzan, who stated that the property-in- question belong to late Samandar Khan and after his death there was a settlement among the heirs and the sisters were given Rs,80,000 each against their shares and this settlement was done in the year, 1982-83. He further stated that the price is probably Rs,1000/1500 per sq. Ft.
5. Record reveals that a local commissioner was also appointed regarding confirmation of the fact as to whether some of the properties have been let out to some one as tenant. After hearing the parties, the learned trial Court vide its judgment and decree dated 31st October, 2002 decreed the suit by holding that plaintiff No,2 and other sisters are legal heirs, are entitled to have their share and the property was directed to be distributed/partitioned in accordance with their legal/sharee shares. Feeling dissatisfied with the judgment, Appeal being No,7 of 2003 was filed in the Court of District Judge, which was allowed vide order dated 10th June, 2003 and the case was remanded to the trial Court with the following terms:- "hi the above discussed circumstances, the appeal is accordingly allowed and the case is remanded to the trial Court with the direction to pass a preliminary decree in it if considers proper, appoint a commission for the proper partition of the property and after reaching to a conclusion on the point, decide the case on its own merits. Under such circumstances, the appeal in hand is disposed of."
6. The trial Court after hearing the arguments vide judgment dated 2nd December, 2003 decreed the suit by holding that the plaintiff No,2 and her sisters or their legal heirs have due shares in the property in question as their sharhai right and the Revenue authorities were directed to partition the disputed property among the legal heirs of late Samandar Khan in accordance with Inteqal-e- Wirasat. Being dissatisfied with the judgment and decree appeal No,30 of 2004 was preferred. The Additional District Judge-V, Quetta, vide its order/decree dated 25th November, 2004 held in such proceedings at first occasion a preliminary decree is required to be passed, therefore; she while maintaining judgment, modified the decree, hence this petition.
7. I have heard learned counsel for the parties. Miss Sarwat Hina, Advocate appearing for petitioner submitted that the objections raised by petitioners were not adhered to; although property-subject matter of present proceedings is ancestral, but yet shareholders have been given their due share by making payment to them. She submitted that the evidence on record has been misappreciated and misconstructed, therefore; she was of the view, that the judgments and decrees impugned herein are not sustainable.
8. On the other hand, Mr. Farrukh M. Malik, Advocate appearing for respondents controverted the arguments vehemently submitted that the plaintiffs/respondents have proved their case through reliable and confidence inspiring evidence that the property in question is ancestral one and respondents have proved their right, to which they are entitled under the personal law, therefore; revision is not maintainable.
9. I have considered the arguments so forwarded by both the learned counsel for the parties. There is no cavil with the fact that the property in question is an ancestral property, therefore; under the Islamic law on the death of owner, legal heirs became entitled for their due share under the personal law without intervention of any Court or authority. By holding so, I am supported by the judgment of honourable apex court reported in PLD 1990 SC page 1.
10. Petitioners did not dispute the fact that the property in question is ancestral but on the lame excuse and pretext that they have given the shares of sisters by making payment to them; in such circumstances this was but inevitable and essential upon defendants/petitioners to have proved the factum of settlement and payment of amount in lieu of shares to the other legal heirs of late Samandar Khan with their free will and consent. The perusal of record shows that petitioners have produced 5 D.Ws., but only two D.Ws. i,e, D.Ws.3 and 5, state that sisters have been given money against their shares. Statements of both these D.Ws. Have been properly taken into consideration and both the Courts below after due consideration, keeping in view the principles of Qanun-e- Shahadat, have considered these statements and have rightly concluded that respondents have failed to prove that the property in question has been distributed and the respective shareholders i,e, plaintiffs or the other legal heirs of deceased, daughters of late Samandar Khan have received their shares and in lieu thereof money has been paid to them. There is no misreading or non- reading of evidence; hence there is no occasion for interference with the concurrent findings of facts rendered by Courts below. The judgments rendered by both the Courts below are in accordance with law, as subject-matter among the parties is the distribution of ancestral property, which is inherited by them, so the trial Court remaining well within four corners of law has held that the property in dispute be partitioned among the legal heirs of late Samandar Khan. By upholding the impugned judgments and decrees, I am supported by the judgment of honourable apex Court reported in SCMR 2007 page 635.
11. In the light of above discussion, there is no impropriety, irregularity, perversity and illegality in the judgments and decrees passed by lower courts, therefore; I am not inclined to interfere with concurrent findings of facts based on proper appreciation of evidence by the lower forums, therefore; finding no merits in the petition, same is dismissed with costs throughout.
Revision aismissed.