AMIN-UD-DIN KHAN, J. --- Through this civil revision, the petitioners-defendants have challenged the judgment and decree dated 23.7.2002 passed by the Additional District Judge, Bahawalpur, whereby the appeal, filed by the respondents-plaintiffs was accepted and the cross-objections filed by the petitioners were not touched. Resultantly, judgment and decree dated 30.11.2000 passed by the Civil Judge 1st Class, Bahawalpur, dismissing the suit, was set aside.
2. Briefly, the facts of this case are that the respondents -plaintiffs on 3.1.1996 filed a suit for declaration challenging the validity of mutations Nos. 172 and 173 attested on 23.5.1936 and mutation No. 596 attested on 27.12.1957. They have prayed for declaration that they are owner of suit land measuring 23 kanals, 13 marlas. The story narrated by the plaintiffs in their plaint is that their predecessor, Muhammad Ramzan, was son of Ghous Bakhsh, therefore, they are entitled to inherit their father. Muhammad Ramzan, who was to inherit Ghous Bakhsh but illegally their predecessor has been deprived of inheritance of Ghous Bakhsh, in Para No. 2 of plaint the pedigree-table has been narrated.
The defendants appeared and contested the suit on facts and also on the basis of limitation. Out of the divergent pleadings of the parties, the Trial Court framed issues on 4.4.1996 and invited the parties to produce their respective evidence. Both the parties adduced their oral as well as documentary evidence. The Trial Court vide judgment and decree dated 30.11.2000 dismissed the suit on the basis of findings recorded on issue No. 2 and declaring that suit is time-barred. All other issues were decided in favour of plaintiffs. The plaintiffs filed an appeal before the first Appellate Court. The defendants also filed cross-objections against the findings of Trial Court recorded against them on the issues except issue No. 2. Vide judgment and decree dated 23.7.2002 accepted the appeal and the judgment and decree dated 30.11.2000 passed by the Trial Court, dismissing the suit, was set aside. Neither the first Appellate Court has discussed cross-objections in the judgment nor separately decided the same. Hence, this civil revision.
3. Learned counsel for the petitioners-defendants argued that the Courts below fell in error while deciding the matter, presumed that defendants have a case that predecessor of plaintiffs, Muhammad Ramzan, was illegitimate; that it was a question of legitimacy of said Muhammad Ramzan which the plaintiffs were to prove in accordance with Paras 339 and 340 of Muhammadan Law by D.F. Mulla; that pivotal point for plaintiffs to prove was that Muhammad Ramzan was son of Ghous Bakhsh; that neither their pleadings nor their oral evidence is upto the mark to prove the matter in issue and on the basis of which they have prayed for issuance of declaration from the Court. Further states that not a single document has been produced by the plaintiffs in support of their claim; that the evidence and pleadings of plaintiffs are contradictory and it is sufficient to disbelieve their claim; that P.W-3, one of the plaintiffs, is not specific in his statement even he does not know the time of death of Ghous Bakhsh or his brothers Mosa and Lal. It has been further contended that through mutation No. 173 Mst. Sahib Khatoon was given share of inheritance of Ghous Bakhsh being his sole daughter but she has not been made party in the suit; that she was alive at the time of filing of suit and definitely if Muhammad Ramzan is adjudged to be the legal heir of Ghous Bakhsh, then the share given to Mst. Sahib Khatoon will be changed and she was to inhereit with his brother; that Muhammad Ramzan himself filed an application before the revenue authorities at the time of sanctioning of mutation No. 596 impugned in this suit and a detailed inquiry by the revenue authorities is available alongwith the said mutation, wherein his claim was not acceded to and on 23.12.1957 mutation was attested against the claim of said Muhammad Ramzan; that P.W-3 has not stated that he has listen from his father about his parentage, he stated that he has listen this from his elders of family; that said P.W-3 has admitted in his cross-examination that his father 30/35 years back made a claim for inheritance, which was admittedly refused during the proceedings of mutation No. 596 and further that his father died in the year 1991 and this suit has been filed on 3.1.1996. Learned counsel further states that if story of plaintiffs be admitted that in the year 1957 Muhammad Ramzan came to know that in mutations Nos.' 172 and 173 as well as mutation No. 596, he has not been given any property, then his suit was patently time-barred, as the limitation for filing of suit for declaration is 6 years under the law of limitation.
4. On the other hand, learned counsel for the respondents-plaintiffs stated that when Trial Court decided all issues except issue No. 2 in favour of plaintiffs, then the Court was bound to decide issue No. 2 also in their favour. Further states that D.W-2 Fida Hussain has admitted in the cross- examination during Court question that Allah Wasaya was virgin at the time of marriage with Ghous Bakhsh and that it is not fatal when Mst. Sahib Khatoon has not been made party in the suit.
5. I have heard the learned counsel for the parties at full length and also gone through the voluminous record of this case with their able assistance.
6. Admittedly, at the time of attestation of mutation No. 172 Ghous Bakhsh has not been given share from the inheritance of Mosa, who is brother of Ghous Bakhsh. There is no evidence that Ghous Bakhsh was alive at the time of death of Mosa, therefore, questioning of mutation No. 172 is absolutely without any substance. The plaintiffs are even not specific about the date of death of Ghous Bakhsh or Mosa. When it is so, then they have no right to challenge the validity of mutation No. 172 if Ghous Bakhsh was not alive at the time of attestation of said mutation . The plaintiffs even do not know whether Ghous Bakhsh died before or after the death of Mosa.
So far as, mutation No. 173 is concerned. The claim of plaintiffs that their father was entitled to inherit to Ghous Bakhsh as his son. It is clear that at the time of attestation of mutation of inheritance of Lal s/o Allah Wasaya (brother of Ghous Bakhsh), Muhammad. Ramzan (predecessor of plaintiffs) moved an application before the revenue authorities and a comprehensive inquiry was made by the revenue authorities on the basis of which it came on record that Nikah of Ghous Bakhsh and Allah Wasaya was performed on 10.10.1925 and before that she having a son. On the basis of that inquiry the claim of Muhammad Ramzan was refused. The copy of mutation No. 596 and inquiry report has been produced by the plaintiffs themselves as Ex.P-6. It is not denied by the plaintiffs that their father has not moved the application at the time of attestation of mutation No. 596 and it is also not denied that his claim was refused after the inquiry by the revenue officer, who attested the mutation of inheritance of Lal s/o Allah Wasaya (brother of Ghous Bakhsh). It was a case of proving the legitimacy on the touchstone of Para 339 and 340 of Muhammadan Law by D.F.
Mulla but the Courts below fell in error while presuming it to be a case of illegitimacy which they thought that defendants were bound to prove illegitimacy of Muhammad Ramzan. The scrutiny of evidence clearly shows that plaintiffs miserably failed to prove the legitimacy of Muhammad Ramzan to be the son of Ghous Bakhsh and further it is an admitted position that .When said Muhammad Ramzan lodged his claim at the time of attestation of mutation No. 596, which was refused. He has not challenged that refusal any further before any forum till his death, as he died in the year 1991 and even the suit has been filed in the year 1996. Therefore, all these circumstances are relevant in this case which are interconnected.
7. The first Appellate Court fell in error while not touching the cross-objections filed by the petitioners-defendants at the time of deciding the appeal filed by the respondents-plaintiffs. In the above discussion, it is clear that suit for declaration for which the period of 6 years has been provided, the refusal of claim of Muhammad Ramzan on 27.12.1957 was in his knowledge and he has not challenged this order in his life-time. Therefore, the plaintiffs were having no right to file suit for declaration and the suit filed by them was clearly barred by time.
8. So far as, the findings on issue No. 1 are concerned. When Muhammad Ramzan, predecessor of plaintiffs, has not filed the suit in his life-time and it has not been denied by the plaintiffs that even he was having knowledge of proceedings of revenue officers at the time of attestation of mutation No. 596 attested on 27.12.1957. Therefore, the findings recorded by the Trial Court on issue No. 1 are not in accordance with law. The plaintiffs were not having any cause of action to file this suit.
Mst. Sahib Khatoon has been claimed to be the sister of Muhammad Ramzan and she was alive at the time of filing of suit but she has not been made party when she has been given a share of inheritance. If Muhammad Ramzan was son of Ghous Bakhsh and in that case Mst. Sahib Khatoon was to inherit with her brother and non-impleading her in suit as defendant was a defect. Though the suit cannot be dismissed on the basis of non-joinder of necessary party but it was also a defect in the suit. In these circumstances, the findings recorded by the Trial Court on issues Nos. 5, 6 and 7 are also not sustainable, which are against the record.
9. In the light of what has been discussed above, this civil revision is allowed. The impugned judgment and decree dated 23.7.2002 passed by the ADJ, Bahawalpur and the findings recorded by the Trial Court on issues Nos. 1, 3 to 7 are set aside.
The result would be the suit filed by the respondents-plaintiffs shall stand dismissed with costs.
Civil revision .