' KHALID MAHMOOD, J.---Mst. Noor Jehan petitioner herein and respondents in the connected Civil Revision No, 604 of 2003 brought a suit against the respondents for declaration, fully described in the heading of the plaint, praying that she is entitled to her 1/12th shari share in the estate of her father, late Haji Sehra Khan. The suit after hard contest between the parties was partially decreed by the Civil Judge/Illaqa Qazi Swat vide judgment and decree dated 24-2-2001. Feeling aggrieved both the parties filed appeals before the lower Appellate Court, who while maintaining the judgment and decree of the trial Court dismissed the appeals of both the parties vide judgment and decree dated 10-4-2003. Hence both the parties have filed Civil Revisions Nos. 470 and 604 of 2003. I propose to dispose of both the C.Rs, by this single judgment as both are related to the legacy of the same predecessor between the same parties.
2. Learned counsel for the petitioner argued that the suit mutations were attested due to collusion with revenue staff and the petitioner and respondents Nos. 4 to 8 were deprived from their respective shari share in the legacy of Haji Sehra Khan father of the petitioner. He further argued that onus regarding the proof of the suit mutations lies upon the beneficiaries. Respondents Nos.1 to 3 being beneficiaries of Mutations Nos. 59 and 107 were obliged to have proved the, same by producing the cogent evidence, but they failed to produce the witnesses in support of those mutations. The only marginal witness of the mutations .DW-4 has been produced is a shaky witness, who did not disclose the time of execution of suit mutations, the place, other marginal witnesses and whether .The parties were present or not and whether the offer, acceptance and delivery of possession were made or not. He also argued that being the legal heirs of the late Sehra Khan all the legal heirs are entitled regarding theirrespective shari shares in the suit property. Vide the suit. Mutations Nos. 59 and 107 land measuring 65 kanalas 15 marlas had been transferred in favour of respondents Nos. 1 and 3 whereas only 5 kanals 18 marlas of land had been transferred in favour of petitioner and other five sisters, which is totally against the express provision of Sharia. He pointed out that the judgment of the lower Appellate Court has not discussed the evidence produced by the parties, point raised during the course of arguments and mentioned in memorandum of appeal. Learned Court without considering the legal and factual aspect of the impugned gift mutations had decided the case in cursory manner. He further argued that at the revisional stage this court can decide the dispute between the parties in spite of remanding the same to the lower Court.
3. Learned counsel for the respondents, who is also petitioner in the connected revision is also aggrieved form the judgment of the appellate court. He also assailed the judgment and argued that the learned appellate court had ambiguously held that the petitioner had not given her respective shari share in the suit property. He argued that the gift Mutations Nos. 59 and 107 were correctly executed in favour of respondents Nos. 1 to 3 and after execution of the said deed the respondent had became the owner in possession of the suit property and they are enjoying the property from the date of execution i.e, 22-6-1989, whereas the predecessor of the parties had also, executed Mutation No,36 in favour of the petitioner and respondents Nos. 4 to 8 and no one among the sisters except the petitioner had objected to the said mutations. He further argued that the suit of the petitioner is hit by limitation as so many jambandies had been prepared after attesting the said mutations and petitioner kept mum till the filing of the present suit. He contended that both the parties are aggrieved from the judgment of the lower appellate court, which requires the remand of the same being non-speaking judgment.
4. Arguments heard and file perused.
'5. There is no denial that the judgment of the learned appellate court is a non-speaking one, because evidence has not been properly appreciated nor the law laid down regarding the present case has been discussed by the learned appellate court.
6. Learned counsel for the respondents was of the view that except the remand there is no way left to proceed further and this court cannot in revisional jurisdiction decide the matter because the learned appellate court has not given reasons while passing the impugned judgment that too is ambiguous one, whereas the counsel for the petitioner resisted for the remand of the case as the evidence has been recorded by the trial court and no further evidence has been asked to be recorded as additional evidence by either of the party-. Remand of the case will increase the agony of the parties, hence, this court is competent in revisional jurisdiction to pass appropriate judgment. In this regard, he referred to a case of Malik Muhammad Khan v. Trustees of the Port of Karachi (KPT) and another (2008 SCM R 428) wherein it has been held that:- "This Court has consistently held that when finding of the facts of the trial and Appellate Courts are contrary to the evidence and material on record or are against law when the revisional Court would' have jurisdiction to rectify the same so as to bring the findings in consonance with the evidence on record or to remove the illegality surfacing from the judgment. Similarly, if the revisional Court finds any violation of provision of law by a Court or ignorance of law then it is vested with the authority to set aside the concurrent findings and substitute its own findings".
7. Equity and justice also demands that justice should not be delayed because delay in justice is denial of justice. In case of remand the parties will suffer mental and physical torture and also will increase their agony. In this respect wisdom can be drawn from the case of Mst. Shahida Parveen v. Iqrar Ahmad Siddiqui (2010 SCM R 1119), wherein it is held that:- "Remand should be ordered in exception circumstances, when Appellate Court found determination of question of fact to be essential for a right decision of suit upon merits. Where evidence on record was sufficient for Appellate Court to decide question involved, then order of remand ought not to be passed".
8. I have gone through the revenue record, suit mutations and the evidence of the parties, as mutation does not create title of the parties, which is only meant for the fiscal purpose and entries in the revenue record. Though the long standing entries in the revenue record earn the presumption of truth and create rights of the concerned parties, but here is the question of depriving of a legal heir from her due shari share in the inherited property. Whenever a legal heir is deprived from his/her due shari share, the question of limitation or any other unproved document creates no hurdle for filing a suit regarding due entitlement in the legacy of the deceased In this respect in case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1).
9. In the present case, the petitioner and respondents Nos. 4 to 8 are the sisters of respondents Nos.
1 to 3. All of them are Pardanasheen ladies, who were given only 5 kanals 18 marlas, whereas respondents Nos. 1 and 2 were given 65 kanals 15 marlas. It is admitted fact that every fresh jamabandi creates fresh cause of action. In this respect petitioner cannot be non-suited on the basis of limitation. Moreover, petitioner is an illiterate pardanasheen lady. Now it was the duty of the respondents being beneficiary of the mutations and deed should have proved the gift mutation/deed.
10. Now I will refer to the evidence produced by the respondents for the proof of the two gift mutations. It is admitted fact that respondents Nos. 1 to 3 had tried to prove the suit gift mutations.
In this respect they have produced only one marginal witness DW-4 Rashid, who, while appearing in the-witness box had only stated that at the day of attestation of the mutations he was present in Tehsil and he further stated that those mutations were attested in favour of respondents Nos.1 to 3 and he has signed the same. In his statement he nowhere mentioned that offer was made by late Haji Sehra Khan and whether respondents Nos. 1 to 3 were present, who accepted the offer at the time of attestation of the mutations. Except presence of Akbar Khan he has not stated that any other person was also present at the time of attestation of impugned mutations. For the proof of the mutations contesting respondents Nos.1 to 3 were obliged to have produced the Patwari Halqa, who entered the mutation, Tehsildar who had attested the mutations 'and the other marginal witnesses of the mutations, but respondents failed to produce the said witnesses for the proof of the suit mutations. No doubt. Sehra Khan being owner of the suit property was competent to have transferred his property in the shape of sale, mortgage, exchange, hibbah, tamleek etc. And in each case when the same mutations/deeds are challenged, the beneficiary is bound to prove the said mutation/deed by producing cogent evidence as prescribed under Article 79 read with Article 17 of Qanun-eShahadat Order, 1984. As valuable rights in shape of due share of inheritance of petitioner has been involved, hence the respondents Nos.1 to 3 were duty bound to have proved the suit mutations by producing the cogent evidence mentioned above. The controversy has been resolved by the .Hon'ble apex Court in Ghulam Ali and 2 others v. Mst.Ghulam Sarwar Naqvi case. In Sura Nisa, the shares of each legal heir has been determined and depriving any legal heir from the inheritance is prohibited in the same Sura which has been declared a great sin by Almighty Allah.
11: Learned counsel for the respondents has raised objection that petitioner had not specifically challenged the inheritance mutations and deed, hence, the suit of petitioner is not maintainable.
To meet the said objection, when plaint was perused, it transpired that though inheritance mutations are not specifically challenged but it is clearly mentioned that all sort of mutations and deeds shown executed by the late Sehra Khan in shape of gift, exchange, sale mortgage etc. Are ineffective against the rights of petitioner. Hence, the suit mutations are included in the said prayer mentioned in the plaint. Moreover, both the parties have produced the said mutations which were discussed by the both the courts below and controversy revolved on the same mutations, hence it is held that the suit is competent in its present form.
12. In light of the above legal and factual aspect of the case, this revision petition is accepted, the judgments and decrees of both the lower courts are set aside and the suit of the petitioner Mst.
Noor Jehan is decreed as prayed for and connected revision petition filed by the respondents is dismissed. No order as to costs.