' ATTAULLAH KHAN J.---This order will dispose of Civil Revision petition filed under section 115, C.P.C.
Against the judgment dated 15-12-2004 passed by Additional District Judge-I, Lakki, vide which he accepted the appeal and set aside life judgment and decree of Civil Judge-1V, dated 9-5-2003.
2. Facts in brief are that the plaintiff/respondent filed a suit in the Court of learned Civil Judge in year 1995 for declaration to the effect that they are owners ill possession of the suit property to the extent of 5/12 shares being legal heirs of Sarwar son of Mirza Khan. They also seeks declaration that inheritance Mutation No,1280 dated 17-12-1934 and another gift mutation No,122 in the name of defendants Nos.2 to 5 are fake, illegal, ineffective upon their rights and liable to be cancelled.
3. According to the plaint, the suit property was originally owned by one Sarwar son of Mirza Khan Predecessor in interest of plaintiffs and defendant No, 1 it is alleged that defendant No,1 in collusion with revenue staff got attested inheritance Mutation No,1280 dated 17-12-1934 in his name and thereafter gifted the property in favour of defendants Nos.2 to 5 vide gift Mutation No,122 which are illegal and fraudulent.
4. Suit was contested by the contesting defendants by filing written statement which gave rise to the following issues. ISSUES:
(i) Whether the plaintiffs have got a cause of action?
(ii) Whether the suit is within time?
(iii) Whether the plaintiffs are estopped to sue because of their own conduct?
(iv) Whether the defendants are bona fide purchaser?
(v) Whether the plaintiffs are the legal owners to the extent of 5/12 shares of the suit property on the basis of inheritance?
(vi) Whether the inheritance Mutation No, 280 attested on 17-12-1934 is wrong, baseless? If so its effects?
(vii) Whether the Mutation No,122 is false: base on fraud and liable to be cancelled?
(viii)Whether the plaintiffs are entitledlo the decree as prayed for?
(ix) Relief.
5. After recording evidence and hearing arguments the learned trial Court vide judgment dated 9- 5-2003 dismissed the suit of the plaintiffs.
6. The above mentioned order was impugned in appeal before the Appellate Court, who accepted the same and set aside the above mentioned judgment and decree of the learned trial Court and consequently decreed the suit of the plaintiffs in their favour, vide judgment and decree dated 15- 12-2004.
7. Arguments of learned counsel for the parties. Heard and record perused in the light of which my findings are as under:-
8. Learned counsel for the petitioner submitted that in the pedigree table the name of plaintiff did not appear. He further contended that the suit is time-barred because the impugned mutation is prior to the application of Shariat Laws.
9. On the contrary, learned counsel for respondent argued that the plaintiffs are admittedly the legal heirs of original owner Sarwar, therefore, according to learned counsel they are entitled to their legal share in the legacy of original owner Sarwar. He further argued that the Limitation Act is not applicable in case in hand.
10. Abdullah Khan, who is special attorney of plaintiffs appeared in the trial Court and confirmed that the property was owned by one Sarwar but in collusion with the revenue staff, defendant No,1 got attested inheritance mutation in his favour. Mst Rahm Jana, plaintiff who is daughter of original owner also appeared in the trial Court and confirmed her legacy in the suit property. Other witnesses produced by the plaintiff also confirmed the right of plaintiff as legal heirs in the suit property being legal heirs of original owner Sarwar. The plaintiffs have also produced pedigree- table which is Exh.P.W.2/3. The perusal-of P.W.2/3 would reveal that Sarwar is owner being legal heirs of original owner Mirza Khan. The defendants concerned have not specifically denied the allegations of plaintiff in their written statement. The original owner namely Sarwar who is predecessor in interest of the plaintiff died during the period of customary law. He is entered as owner in the Revenue Record. That record further reveals that Ali Jan got attested the impugned mutation on 17-12-1934 in his favour with the exclusion of plaintiffs. The relationship of father of respondents Ali Jan, who was defendant No,1 in the original suit, as son of Sarwar is admitted. The controversy in this case is whether the plaintiffs are also the legal heirs of Sarwar or not. Ms. Rahm Jana appeared in the Court but she was not cross-examined in order to disprove her relation with the original owner. This has become now admitted that Mst. Rahm Jana was the daughter of original owner and sister of defendant No,1. The photostate copy of the identity card is Exh.P.W.2/D-1 also confirmed the said fact. Another fact to be noted is that the list of legal heirs of Ali Jan, defendant No,1 who died during the pendency of suit, contained the name of Mst. Rahm Jana and this list was no objected too by the defendants. This is on record that Sarwar original owner died in, year 1936. This is also an admitted fact that Sarwar died one month prior to entry of inheritance mutation Exh.P.W.2/4. Under the custom Mst. Zargoona Bibi should have inherited the entire legacy of Sarwar (husband) as limited owner. After the termination of limited ownership, the property should have been divided amongst the legal heirs. The second marriage of Mst. Zarghoona Bibi with somebody else has not been proved. It seems that the plaintiffs were deprived of their legal legacy without any legal justification. Defendant No,1 who is the legal heir of present petitioners was owners only to the extent of 14/32 shares while he inherited entire property which is not legal and on this ground gift Mutation No,122 is also of no effect on the rights of plaintiffs.
11. So far as the issue of limitation is concerned, the cause of action accrued to the plaintiffs is from the date of gift mutation and in this way, the suit is within time. Moreover, the matter relates to inheritance of the parties though it relates prior to the enforcement of Muslim Personal Law (Shariat Application Act), 1937 but it has to be governed under the said Act of 1937. Moreover, the attestation of mutation excluding co- sharer or a female co-sharer cannot be made basis for holding that the limitation would run against her from the date of attestation of mutation. Reference may be given to 1998 SCMR 996. Similarly, I may also refer PLD 2004 Lahore-1 wherein it is held that:-- "As regards the question, whether the suit is within limitation, it is settled law that there is no limitation for a co-owner of the property particularly in possession and seeks the share of inheritance. Besides, as per view enunciated in PLD 1990 SC 1, the limitation would not apply where the person seeks to enforce a right of inheritance in the estate of a deceased predecessor".
' The same principle is given in 2002 CLC 587.
12. The result of my above discussion is that petitioner has failed to point out any illegality, jurisdictional error, or misreading of evidence in the impugned judgment and decree of the leaned Additional District Judge dated 15-12-2004, therefore, the petition in hand being without force, is hereby dismissed, leaving the parties to bear their own costs.