' MUHAMMAD NOOR MESKANZAI, J.---The petitioners have called in question the legality and propriety of the judgment and decree dated 21st June, 2013 passed by Additional District Judge-III, Quetta, whereby their appeal was dismissed and the judgment and decree dated 17th March, 2012 passed by the Civil Judge-III, Quetta was upheld.
2. Facts in brief are that the respondents Nos.1 and 2 filed a suit for declaration, partition, possession, injunction, cancellation/correction of mutation entries and mesne profit against the petitioners and respondent No.3 in the court of Civil Judge-HI, Quetta. It was the case of the plaintiffs that the plaintiffs and respondents Nos.1 to 6 are the children, whereas the defendant No.7 is widow of late Jamal-ud-Din, who left properties bearing No. Khewat No.33, Khatooni Nos.54 to 59, comprising of 9 Qitas, measuring 7596 square feet, situated at Mohal and Mouza Ward No.52, Tappa. Urban-4, Tehsil and District Quetta and the parties are entitled for their due share.
3. The petitioners/defendants contested the suit by way of filing, written statement, wherein they not only admitted the relationship also admitted that the property in question belonged to their propositus, but nevertheless the plaintiffs have gifted their share to petitioners Nos. 1 to 3, therefore, requested for dismissal of the suit. The trial Court framed as many as four issues and the parties thereafter adduced their respective evidence. During the pendency of proceedings, the plaintiff No.1/respondent No.1, through a compromise deed dated 4th February, 2010, gifted her share to respondent No.3 Shams-ud-Din and to such extent a preliminary decree was drawn and the same has attained finality. The case of the plaintiff/respondent No.2 was proceeded with, which culminated in passing of the decree dated 17th March, 2012. The petitioners feeling aggrieved filed an appeal before the learned District Judge, Quetta, which was transferred to the file of Additional District Judge-III, Quetta. The learned appellate Court after hearing the parties dismissed the appeal, hence this petition.
4. The learned counsel for the petitioners contended that both the Courts below illegally, unlawfully and without any justification decreed the suit filed by respondent/plaintiff No.2 despite of the fact that there was no evidence available on record to justify the drawing of a decree in favour of 'the plaintiff No.2/respondent No.2, but both the Courts below failed to take into consideration this aspect of the case.- Learned counsel stressed that the petitioners proved their version by producing confidence-inspiring and tangible evidence, but both the Courts below without any justification omitted from consideration the material available on record and without any rhyme or reason decreed the suit. Similarly, the appellate court without going through the record dismissed the appeal filed by the petitioners. Learned counsel emphasized that both the Courts below wrongly held that the respondent/plaintiff No.2 is entitled to receive her legal and Sharai share.
5. I have considered the arguments advanced by the learned counsel for the petitioners and have gone through the record of the case. Admittedly, both the parties are descendants and ,successor- ininterests of late Jamal-ud-Din Kakar and no doubt, the property in question also belonged to the predecessor in interest, of the parties. The only exception is the petitioners have dismantled and demolished the earlier structure and have raised some new construction over the property under dispute. The petitioners/defendants do not dispute the relationship but have came forward with the plea that the respondents/ plaintiffs have gifted their share to the petitioners. There is no cavil with the fact that there is no written deed in support of the contentions of the petitioners and to support their version, the petitioners have A thainly relied upon ocular testimony. In my considered, view, the petitioners have not been able to prove their stand and stance for multiple reasons. Firstly because during the pendency of the suit, the respondent/ plaintiff No.1 gifted her share to petitioner No.3 through a compromise deed, which was accepted by the parties. The acceptance of this gift nullifies the assertion of earlier gift, because, if the Contention of the petitioners qua the earlier gift was correct and true, then what was the occasion for the subsequent gift without reference to any earlier gift. Secondly, as per the divine law, the moment, the propositus dies, the succession opens and the legal heirs enter into possession of their 'sharai' share without interruption of any authority/court etc. Thirdly, the petitioners have utterly " failed to produce any cogent, coherent, confidence-inspiring and tangible evidence in , support of their plea. Fourthly, the respondent/plaintiff No.2 could not be deprived of her legal share simply because of the new construction raised by the petitioners by way of demolishing the earlier structure, as it would neither entitle the petitioners to any additional interest or right to the property nor would constitute a ground for depriving of a heir of his/her respective share, particularly so when the new construction has been raised without permission of respondent No.2. The trial Court has rightly observed that the petitioners/defendants have raised construction on their own risk and costs.
Legally, the subsequent construction would be deemed to have been raised by the concerned party at his own risk and cost. Fifthly, under Islamic law, a female shareholder cannot be deprived of her sharai share on such flimsy,, concocted and baseless pretext and the rights of the women have been protected. By holding the view, I am fortified by the dictum laid down in the judgment titled as 'Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi', reported in PLD 1990 SC page 1, relevant observations wherefrom read as under:-- "It is not for the first time that it is being, so held. Even .Earlier commentators on Islamic Law (its inheritance branch in particular) have indicated the same approach with reference to some decided cases. The heir in possession was considered to be in constructive possession of the property on behalf of all the heirs in spite of his exclusive possession, e.g., the possession of the brothers would be taken to be the possession of their sisters, unless there was an express repudiation of the claims of the sisters by the brothers. Hyder Khan v. Chanda Khan (5011 C 691 0441), ' It is again to be emphasised that oh principle, in Islamic law it is not possible to accept the claims of coowners/inheritors when they are males and females together, the former seeking a right on the 'basis of adverse possession and ouster against the latter. The comments and precedents referred to above are only illustrative of, a principle; which has to be restated more..
Clearly.
' The pleas of estoppel, waiver and adverse possession can also be now easily repelled in the light of the foregoing discussion of the Islamic principles. The petitioners being the brothers of the respondent were required by the Islamic law to protect the property rights .Of their sister if ever they came into possession of the land in any capacity. Here admittedly they alleged voluntary relinquishment, therefore, even otherwise the well-known rules for establishing adverse possession, particularly the one relating to hostility, would not be established. But as stated earlier one who is enjoined with the protection of the other's property cannot lay claim adverse to the interests and rights of that other one who owns it. The Saying of the Holy Prophet (P.B.U.H.) has been quoted which enjoins upon the menfolk to protect property rights of their womenfolk Under the Islamic dispensation, therefore, in the present case there could be no claim of adverse possession. Same would apply to the estoppel and waiver. Moreso on account of rule of public policy and the principle of devolution of the property in respondent's favour immediately on the death of her father (regardless of the fact whether she did any other act to exercise control over it) would negate the plea of estoppel or waiver. The plea of ouster, to say the least, is untenable; because, its essential component, the plea of adverse possession, is obviously not available against a sister what to talk of her ouster.
' This case also required similar, if not better, treatment. The scope of rights of inheritance of females (daughter in this case) is so wide and their thrust so strong that it is the duty of the Courts to protect and enforce them, even if the legislative action for this purpose of protection in accordance with Islamic Jurisprudence, is yet to take its own time."
B. Further the view finds support from the case title 'Mst. Suban v. Allah Ditta and others' reported in 2007 SCM R 635, relevant observations read as under:-- "11. It is a proposition too well-established by now that as soon as someone who owns some property, dies, the succession to his property opens and the' property gets automatically and immediately vested in the heirs and the said vesting was not dependent upon any intervention or any act on the part of the Revenue Authorities or any other State agencies. It is also an established proposition that a mutation did not confer on anyone any right in any property as the Revenue Record was maintained only for realization of land revenue and did not, by itself confer any title on anyone. It may also be added that efflux of time did not extinguish any rights inheritance because on the death of an owner of property; all the co-inheritors, immediately and automatically, became co-sharers in the property and as has been mentioned above, limitation against them would start running not from the time of the death of their predecessor-ininterest nor even from the date of mutation, if there he any but from the dale when the right of any such co-sharers/coinheritors in such land was denied by someone.
12. Having thus, examined all aspects of the matter, we find that the learned Appellate Judge was right in holding that the plaintiff heirs of the said Gharu could not have been non-suited on account of limitation; that the onus lay very heavily on Mst. Ghulam Fatima to establish relinquishment, by the other heirs, of their rights in the property in question which burden she had not been able to discharge, inter alia, because the daughters in question of Gharu were minor at the time of the alleged family settlement and also because mutation in question bearing No.86 proceeded on dishonest and incorrect premises i.e. Gharu having died issueless and Mst. Fatima being his only surviving heir,
18. Consequently, in view of the provisions of rule 4 of Order XLI of the Code of Civil Procedure which envisage grant of relief even to the non-appealing parties and also in discharge of the obligations cast on this Court to do complete justice, we declare and direct:-
(a) that all those persons, who qualified as heirs of Gharu as per the Sunni faith, at the time of his death in the year 1942, were entitled to their respective Sharai shares in each and every inch of land left behind by the said Gharu;
(b) that the said estate would consequently devolve upon all such heirs in accordance with the said shares are that,.
(c) the District Officer. (Revenue) of Bahawalnagar shall identify/ cause to be identified all such heirs of the said Gharu and then ensure entering and attestation of mutation/mutations of inheritance of the said entire estate of Gharu in the name of the said heirs or in the name of the heirs of the said heirs if any such heirs be dead by now. "
C. In case titled as 'Sher Khan and 2 others v. Alloo' reported in PLD 1973 Quetta 18, wherein it has been observed as under:-- "It was argued that this was the main ground which weighed with the mind of the Majlis-e-Shoora but they have ignored the fact that prior to the declaration of the land in dispute by the Government of West Pakistan to be its owner, it was Tayab predecessor-in-interest of the appellants who was actual owner in possession of the land and later on Government of West Pakistan had become by operation of the law its owner, this by itself did not affect in any way the right of the appellants to the enjoyment and possession and its entitlement. There is sufficient force in the arguments of counsel for the appellants because the Majlis-eShoora was not called upon to pass such a sweeping judgment that the women had no right in the circumstances of this case even as the Maoroosi Bazgar by operation of law."
6. Besides, the denial of the right in the property of the females is now a crime in our society and has been made punishable.
' Keeping in view the peculiar facts as discussed hereinabove at the strength of dictum laid down by the Hon'ble Apex Court qua the share of female heir, I have no doubt in my mind that there is no misreading, non-reading of evidence nor for that matter there is any illegality or irregularity in judgments impugned. I am conscious that legally an aggrieved party is entitled to call in question the validity and propriety of an order, judgment and a decree of a lower forum before the higher forum, but in my opinion,' the filing of this petition is another attempt and pretext to linger on the proceedings in order to further deprive the respondent. No.2 from her vested right and the fruit of the decree passed in her favour, therefore, I do not see any plausible reason to admit this petition tp regular hearing, thus, the petition is dismissed in limine.