JUDGMENTCH.
MUHAMMAD TARIQ, J. - Brief facts of the case as narrated in the plaint are that Mst. Iqbal Begum.
And others filed a suit for declaration with permanent injunction against Mst. Gabhan alias Ghulam Fatima and others on the ground that Mst. Hayat Bibi mother of defendant No. 1 was the were of Nikka and Mst. Gabhan defendant No. 1 Was born out of the said wedlock on 24.5.1902 but after coming to Pakistan, Mst. Gabhan converted her name into Mst. Ghulam Fatima. Further contended that estate of Daula because the Daula was owner of land measuring 353 Kanals and 17 marlas situated in Mureedkey. That Daula died issueless in 1928 leaving behind him one Mst. Hayat Bibi widow, it was further contended in the plaint that Mst. Hayat Bibi was a divorced lady who contracted second marriage with Daula and Mst. Gabhan a//'as Ghulam Fatima was the daughter of Mst. Hayat Bibi from her first husband. So, Mst. Gabhan alias Ghulam Fatima is not entitled from the Daula was not the real father of Mst. Ghulam Fatima, it was further contended that Daula died in 1928 and his property was transferred to his widow Mst. Hayat Bibi under the customary law as limited owner till life and the suit property, which is fully described in the plaint, was allowed and confirmed in 'the name of Mst. Hayat Bibi till life, it was further contended that Mst. Hayat Bibi has mortgaged-her some landed property in favour of Jhanda and her sons on 23.12.1929, 12.8.1930 and 20.8.1931 respectively and the plaintiff No. 1 and the predecessors of plaintiffs Nos. 2 to 9 challenged the said mutations which were without consideration, fictitious, without any need, void and in- operative against the said plaintiffs. The plaintiffs further contended in the. Plaint that since Mst.
Gabhan alias Mst. Ghulam Fatima is not a real daughter of Daula deceased, therefore mutation of inheritance No. 195, dated 13.8.1962 be declared illegal, void and in-operative on the rights of the plaintiffs.
2. The defendants filed their written statements and contested the suit on the ground that the suit was barred by time and the plaintiffs/petitioners were estopped by their on words and conduct to bring the suit etc. Out of the divergent pleadings of the parties, the learned Trial Court framed the following issues:- ISSUES:
(1) Whether Mst. Gabhan is the daughter of Nikka and not entitled to the inheritance of the deceased Daula son of Bhola? OPP
(2) If issue No. 1 is proved, whether the Mutation - No. 195, dated 13.8.1962 is against the facts, illegal, based upon fraud, misrepresentation ,. And therefore, inoperative upon the plaintiffs proprietary rights, in the suit land?
(3) Whether the suit is without time?
(4) Whether the plaintiff is estopped by his act and conduct to file the suit?
(5) Whether the suit is not maintainable in its present form?
(6) Whether the suit is under-valued for the purpose of Court-fee and jurisdiction, if so, with what effect?
(7) Whether the suit is frivolous and the defendants are entitled to special costs?
(8) Relief. The parties produced their oral as well as documentary evidence in support of their contentions and the learned Civil Judge, 1st Class, Gujranwala vide his judgment and decree dated 18.2.1996 decreed the suit of the plaintiffs/petitioners. Feeling aggrieved of the said order, the defendants/respondents filed appeal and challenged the judgment and decree dated 18.2.1996 passed by the learned Trial Court. However, on 13.4.1998, the learned Additional District Judge, Gujranwala-accepted we appeal and set aside the judgment and decree dated 18.2.1996 passed by the learned Trial Court and dismissed the suit, hence, this civil revision;
3. The learned counsel for the petitioners contended that the judgment/and decree passed by the learned Trials Court on 1.2.1996 is in accordance with the law and facts. The learned Additional District Judge, Gujranwala instead of deciding the matter himself, entrusted the jurisdiction to the revenue authorities to decide such a complicated matter which is not within the jurisdiction of revenue authorities. Learned counsel for the petitioners further contended that the impugned judgment and decree is against the law and facts and is not sustainable in the eye of law and same is liable to be set aside and the case be remanded to the learned District Judge, Gujranwala to decide it afresh.
4. On the other hand, the learned counsel for the respondents has supported the impugned judgment and decree dated 13,4.1998 and contended that Mst. Gabhan alias Ghulam Fatima is the real daughter of Daula which fact was admitted in Ex. D.1 which is an agreement to sell on behalf of Mst Gabhan alias Mst. Ghulam Fatima and has been countersigned by the petitioners Ghulam Nabi etc. Similarly, in support of his version, he further contended that in column No. 10 of Mutation No. 195, dated 13.8.1962, this fact is again confirmed that Mst. Gabhan alias Ghulam Fatima is the real daughter of Daula. He further relies on Ex. D.4 and Ex. D.5, which is pedigree-table in which Mst.
Ghulam Fatima has been shown as daughter of Daula.
5. Arguments heard. Record perused.
6. There are complicated questions of law and facts are involved in the matter. The question of inheritance and the entitlement is involved which could be decided only by the Civil Court because the proceedings before a Revenue Officer is always of summary nature who cannot decide the question of title so the observation of the learned Additional District Judge, Gujranwala is erroneous whereby' he has concluded that perusal of the document Ex. D.4 indicates that Imam Ali the predecessor of defendants Nos. 8 and 9 and Abdul Aziz defendant No. 10 etc. Had challenged the impugned mutation of Inheritance No. 195, dated 13.8.1962 before the learned Collector, Gujranwala through an appeal. The perusal of document Ex. D.9 clearly indicates that the said appeal was accepted by the Collector, Gujranwala and impugned mutation of inheritance No. 195, dated 13.8.1962 was set aside and the case was remanded back. For deciding it afresh after enabling all the parties and at the time of institution of present, suit, the impugned mutation of inheritance did not exist in view of the order dated 14.11.1963 passed by the leaned Collector, Gujranwala. The learned A.C. Grade-I or A.C. Grade-ll should have decided the question of inheritance of Mst. Hayat Bibi widow of Daula deceased afresh after hearing the contesting parties.
7. Both the parties have relied upon cogent evidence in support of their contentions, which could only be decided by the Civil Court and not by the revenue authorities. This Court feels appropriate that this matter be. Decided in detail by the Civil Court after hearing all the parties.
8. In the light of above discussion and after hearing both the parties and perusal of the record, this civil revision is accepted. The impugned judgment, and decree dated 13.4.1998 passed by the learned Additional District Judge, Gujranwala is set aside and the case is remanded back fo the learned District Judge, Gujranwala with the direction to decide the matter expeditiously after hearing all the parties. No order as to costs.
9. Both the parties are directed to appear before the learned District Judge, Gujranwala on 15.4.2010.