' MUHAMMAD KHALID MEHMOOD KHAN, J.---On 8-6-1993 the respondent filed a suit for declaration with possession and permanent injunction against the petitioner's predecessor-in-interest namely Amanat Ali and others claiming that one Muhammad Din son of Nabi Bakhsh their predecessor-in- interest was the owner to the extent of 1-1/2 share in the land measuring 357 Kanals, 7 Marlas situated in Mauza Khanan Wali Tehsil Pasroor District Sialkot detailed in para 1 of the plaint. The deceased Muhammad Din had two wives namely Hakeem Bibi and Naziran Begum, who died in the year 1944. His both wives got the land of Muhammad Din as limited owners as 1/4th share each. In the year 1946 one wife Mst. Naziran Begum contracted second marriage and as such her share was transferred to her two daughters namely Mst.Rashida Begum and Mst. Hafeezan Begum as limited owners under the Customary Law vide mutation, dated 13-6-1947. On 23-4-1956 Mst.
Hakeem Bibi fraudulently and illegally gifted her share to Sardar, Ghulam Hussain and Ghulam Muhammad the predecessor in interest of the petitioners. The said gift was set aside vide judgment and decree Dated 4-6-1962. The petitioners predecessor-in-interest again got the share of Mst. Hakeem Bibi transferred in their favour through Mutations Nos.2181 to 2183. They also got attested another Mutation No.160 in their favour about the property of Muhammad Din deceased.
The respondents claimed that they are legal heirs of Muhammad Din deceased and as such are entitled to inherit the estate left by him to the extent of their respective share according to Islamic Law of Inheritance. Through the suit the respondents impugned the mutations in favour of the petitioners' predecessor-in-interest and prayed a decree in their favour to the extent of 19/144 share to each daughter and 15/72 in favour of Muhammad Sadiq. The suit was contested by the petitioners. They claimed that respondents are not the legal heirs of Muhammad Din and claimed that they are exclusive owners in possession of the property in dispute. The objection of limitation, estoppel and non joinder of parties was also raised. Learned Civil Court framed the following issues:- ISSUES.
(1) Whether the plaintiffs are legal heirs of deceased Muhammad Din and Mutations Nos.2181, 2182, 2183 and 160 are illegal, void and ineffective upon the rights of plaintiff? OPP
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the suit is barred by limitation? OPD
(4) Whether the plaintiff No.1 has no locus standi to file the suit? OPD
(5) Whether the suit is bad for non-joinder of necessary parties? OPD
(6) Whether the plaintiffs are estopped by their conduct to file this suit? OPD
(7) Whether the suit is barred by section 10, C.P.C.? OPD (7-A) Whether the plaintiff has no course of action? OPD
(8) Relief.
2. Both the parties adduced their evidence both verbal and documentary and the learned Civil Court passed the decree in favour of respondents Nos.2 to 10 declaring them to be the legal heirs of Muhammad Din deceased and dismissed the suit to the extent of respondent No.1 (Muhammad Sadiq). The petitioners assailed the judgment and decree through an appeal which was dismissed vide judgment and decree dated 7-7-2000, hence, the present revision petition.
3. The respondents were proceeded ex parte on 9-4-2010.
4. Learned counsel for the petitioners submits that judgments of both the Courts below suffer from misreading and non-reading of record. He submits that respondents Nos.2 to 10 have not appeared before the Court to establish their claim. Muhammad Sadaq was stranger and suit to his extent was rightly dismissed. He further submits that respondents Nos.4 to 10 never challenged the gift deeds executed by Hakeem Bibi and as such they are not entitled to any decree for cancellation of these gift deeds. He further submits that both the Courts below have failed to appreciate that Muhammad Din died in the year 1944 when Muslim Personal Shariat Law was not applicable on the parties. After the second marriage of Mst. Naziran Begum in 1946 the property in her name was reverted back to the petitioner and further submits that West Pakistan Muslim Personal Law (Shariat Application Act V of 1962) is not applicable on an inheritance opened in 1944.
He submits that the suit was not maintainable as earlier suit filed by predecessor-in-interest of respondents in the year 1961 was dismissed on 25-11-1961, the copy of which is Exh.P4, the said judgment and decree was not assailed and as such the present suit was not maintainable. He further submits that the some of the respondents filed a second suit, the plaint Of which was rejected vide order dated 26-3-1992 and the appeal there against was dismissed on 3-3-1993 which is Exh. D1 . The respondents examined Muhammad Sadaq as P.W.1. He admits in cross- examination that it is correct that they have earlier filed a suit regarding property subject-matter of the present suit which was dismissed and appeal thereagainst was also failed and as such the suit was not competent.
5. Heard and record perused.
6. The dispute between the parties is that petitioners/respondents are claiming that respondents Nos.2 to 10 are not legal heirs of deceased Muhammad Din, respondents including one Muhammad Sadaq filed a suit for possession and declaration claiming that they are legal heirs of deceased Muhammad Din so it was the duty of respondents to prove on record that they are legal heirs of deceased Muhammad Din. The evidence produced by the parties available on record shows that Muhammad Sadaq was not legal heir of the deceased Muhammad Din but respondents Nos.2 to 10's are the legal heirs of the deceased Muhammad Din. D. W.1 who is one of the petitioners/ defendants deposed that except Muhammad Sadaq the rest of the plaintiffs i.e. Respondents Nos.2 to 10 are the legal heirs of Muhammad Din deceased. He in cross-examination however deposed that the respondents Nos.2 to 10 have already taken their share but it is oral assertion and no documentary proof has been placed on record establishing that respondents Nos.2 to 10 have received their share out of the estate of deceased Muhammad Din. From the admission of D.W.1 that respondents Nos.2 to 10 are legal heirs of deceased Muhammad Din, it is established on record that suit was rightly decreed in favour of respondents/plaintiffs. The petitioners/ defendants are not claiming that respondents Nos.2 to 10 have received their share butt their stance as per written statement is that respondents Nos.2 to 10 are not the legal heirs of deceased Muhammad Din. It is also not a dispute between the parties that Muhammad Din has not left any estate. It is also not a dispute among the parties that two wives of the deceased Muhammad Din become owners of the estate of the deceased as limited owner. The admission of petitioners through D.W.1 is sufficient to establish that respondents Nos.2 to 10 are legal heirs of deceased Muhammad Din and once it is established that they are legal heirs of deceased, they become entitled to their share out of the estate of the deceased according to Islamic Law of Inheritance. As far as earlier suit between the parties is concerned the issue in that suit was whether Mst.Hakeem Bibi was a limited owner of A property or not? Whether she was competent to pronounce the gift under the custom and in that suit it was held that Mst.Hakeem Bibi was a limited owner of the property transferred in her favour after the death of Muhammad Din and as such it was proved that the Customary Law was applicable between the parties and after the abolition of Customary Law the property reverted to the legal heirs of deceased according to Islamic Law of Inheritance.
7. As it has been proved on record that respondents Nos.2 to 10 are the legal heirs of deceased Muhammad Din and as such the learned Courts below have rightly decreed the suit in their favour.
8. In view of above, the revision petition fails and is dismissed with no order as to costs.