' MAZHAR ALAM KHAN MIANKHEL, J.---Petitioner Nawaz Khan has filed the present Constitutional Petition against the judgment/order dated 25-4-2011 of learned Additional District Judge-XI, Peshawar, whereby, the revision petition of respondents against the judgment/ order dated 10-11- 2010 of learned Civil Judge-XXVI, Peshawar was accepted.
2. Resume of the facts forming background of the case is that petitioner filed a suit for declaration, permanent injunction and possession through partition against the respondents in respect of the property (fully described in the heading of the plaint) to the effect that petitioner and respondents Nos.29 to 60 being legal heirs of Mst. Fatima daughter of Haider Khan are owners of the suit property to the extent of their share and the Revenue Record on the basis of Tamleek Nama by Haider Khan in favour of respondents Nos.1 to 27 is illegal and fake and having no legal effect over the rights of petitioner.
3. The respondents were summoned to embrace the allegations levelled in the suit and the contesting respondents Nos.1 to 7 and 9 to 29 instead of filing written statement, filed an application under Order VII Rule 11, C.P.C.
For rejection of the plaint. Learned trial Court after receiving replication and hearing the learned Counsel for the parties, dismissed the application ibid of the said respondents vide order dated 10- 11-2010. Dissatisfied with the same, respondents agitated the matter in revision before the learned Additional District Judge-XI, Peshawar, which was accepted vide judgment and decree dated 24- 11-2011. Aggrieved of the same, the petitioner has filed the present writ petition.
4. Learned counsel for the petitioner contended that the petitioner is entitled to his due share in the legacy of Haider Khan and there is no time limitation in inheritance matters. He further argued that inheritance mutation of propositus of the parties in favour of his son alone by excluding the other legal heirs is a question which cannot be determined without recording of pro and contra evidence, so, rejection of plaint even without filing of written statement by Revisional Court is the result of an unlawful exercise of jurisdiction which is liable to be set aside.
5. As against that, learned Counsel for respondents while defending the impugned order of Revisional Court contended that petitioner has no cause of action as he himself admitted in the plaint that Haider Khan had executed the aforesaid tamleek nama in favour of respondents Nos.1 to 27; that the suit of the petitioner is time-barred under Article 120 of the Limitation Act because of the reason that the petitioner has challenged the Revenue Record pertaining to the years 1945 and 1951 and their predecessors during their lives did not question the said entries, therefore, learned Revisional Court has rightly accepted the revision of the respondents and rejected the plaint of the petitioner under Order VII Rule 11, C.P.C. He placed reliance on 2013 SCM R 299, 2008 SCM R 1425 and 2009 CLC 1276.
6. We have heard the learned counsel for the parties and perused the entire record with their valuable assistance.
7. Main stance of learned counsel for the respondents is that the suit of the petitioner is time- barred under Article 120 of the Limitation Act and the lady (the predecessor of present petitioner) herself failed to challenge the entries of said mutations during her life time. No doubt, there is nothing on the record which could reflect that the lady herself ever filed any suit in her life time but we have before us a matter involving question of inheritance. So, the question would be whether that lady and then her legal heirs could be deprived of their rights of inheritance ordained by Shariah Mohammadi on this score alone specially in a summary manner without giving them a chance to establish their rights by producing evidence and also to resolve as to whether question of limitation would be an impediment and stumbling block in their way to seek their such right again at such an initial stage when the respondents have not filed their written statement and led their evidence. No doubt, the judgments of the honourable Supreme Court cited at the bar deal with above referred questions but all the said questions therein were resolved after recording of evidence and full fledged trial. So, the judgments cited at the bar would not help them out at least at this stage. The question of limitation, being a mixed question of fact and law needs evidence to resolve and each case has to be seen in its own facts and circumstances. We have the landmark judgment of the apex Court rendered in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1) and many more, wherein, these questions were dealt with in detail and in the case of Ghulam Ali supra, it was even held that relinquishment of share in inheritance by a lady would be against public policy and the inheritance opens just after the death of a person without intervention of State organs. This observation alone would make the question of Limitation to be established by recording of evidence.
8. While reverting back to the facts and circumstances of the case in hand, it appears that there is a gift Mutation bearing No,1380 dated 25-7-1951 and then reversion of this property again to the original owner Haider Khan, the predecessor of the parties and then inheritance mutation of said Haider Khan bearing Mutation No,1630 dated 26-8-1961 was attested only in the name of his one son Hussain Khan by excluding the other legal heirs, including the predecessor of present petitioner is the question, which could only be resolved after recording of evidence and thereafter, the question of ouster, if any, in the inheritance has to be considered in the light of evidence to be recorded, therefore, learned trial Court has rightly dismissed the application of the respondents under Order VII, Rule 11, C.P.C., whereas the learned Revisional Court without keeping in mind this legal aspect of the case has accepted the revision petition of the respondents illegally and without justification.
9. In this view of the matter, we accept this petition, set aside the impugned order dated 25-4-2011 of learned Revisional Court and restore that of learned trial Court with no order as to costs.