CH. SHAHID SAEED, J. - Brief facts of the case are that plaintiff filed a suit for declaration to the effect that she was a legal heir of deceased Ahmed Din and her brothers had deprived her from inheriting the property of her deceased father situated in Mauza Fazilpur Tehsil Liaqatpur and got sanctioned the mutation in their favour on 20.2.1962. It was further alleged in the plaint that the mutation No. 785, dated 20.2.1962 is against law and facts and also ineffective qua the rights of the plaintiff and liable to be set aside.
2. Defendants appeared before the learned Trial Court and contested the suit by tooth and nail while submitting their written statement. Out of the divergent pleadings of the parties the Learned Trial Court framed the necessary issues including relief. The learned Trial Court after recording the pro and contra evidence of both the parties and hearing the arguments of at length decreed the suit in favour of the petitioner. Respondents preferred an appeal which was accepted by the learned Appellate Court vide judgment and decree dated 2.2.1995 and the suit of the petitioner was dismissed. Feeling aggrieved by the said judgment and decree has preferred the instant civil revision.
3. Learned counsel for the petitioner contends that the judgment and decree passed by the learned Appellate Court is against law and facts and also not sustainable in the eyes of law; further submits that Ahmed Din was the original owner of the land in dispute who died in 1958 leaving behind three sons namely Faiz Bakhsh, Azeem Bakhsh, Rahim Bakhsh and one daughter Mst.
Kareem Khatoon petitioner; that being the legal heir of the deceased she was entitled to the extent of 1 /7th share from the property left by her deceased father. Further maintains that inheritance mutation No. 94, dated 7.3.1958 regarding the land lying in Tehsil Alipur owned by Ahmed Din has been sanctioned in her favour as daughter of the deceased; the mutation in dispute is result of fraud and misrepresentation and will in favour of the respondent is not registered one.
4. On the other hand, learned counsel for the respondents states that the property in dispute was obtained by respondents on Adalpi and the same was transferred in the name of their father; further submits that Ahmed Din in his life-time has given the said property to the respondents through Ex.
D.1 in which it has been clearly mentioned that his daughter has no concern with the property in dispute. Learned counsel has also supported the impugned judgment and decrees:
5. Arguments heard. Record perused.
6. Admittedly petitioner is the real daughter of Ahmed Din and sister of respondents. Ex. D.1 (Wasiyat nama) is not a registered document nor the same has been proved through the oral evidence. The contention of learned counsel for the respondents was that the land in dispute was obtained on Adlapi by the respondents but they have not produced any document in this respect. When the property was in the name of the Ahmed Din father of petitioner, therefore, she was entitled to get 1/7th share from the property in dispute according to Sahria. From the perusal of impugned inheritance mutation Ex. P.4 it reveals that name of . Petitioner Mst. Kareem Khatoon was concealed. I am of the considered view that "Wasiyat nama" Ex. D.1 was prepared after the death of Ahmed Din fictitiously and with mala i.e intention. The other contention of learned counsel for the respondents that the suit was badly time-barred has no force because the petitioner in paragraph 4 of her plaint has clearly mentioned that she came to know about the mutation in dispute prior to one year, before the institution of the suit and the same is repelled. Moreover neither the respondents produced scribe nor marginal witnesses to prove Ex. D,1 and requirements of Article 79 of Qanun-e- Shahadat Order, 1984 have not been fulfilled, It is also astonishing that how the learned Appellate Court relied upon the said document which is more than 30 years old. Neither the same is certified copy nor has come from the proper custody of any agency/record room, hence the requirements of Article 100 of Qanun-e-Shahadat have also not been complied with. As per plaint respondents denied to accept the claim of the petitioner two months earlier from filing the suit. She is an illiterate woman and as per PLD 1990 SC 1 she is entitled to get her share under the sharia as she has proved her case.
7. For the foregoing reasons, the instant civil revision is accepted the judgment and decree passed by the learned Appellate Court dated 2.2.1995 is set aside.