' MAZHAR ALAM KHAN MIANKHEL, J.---The plaintiff/ petitioner, through instant revision petition, has questioned the concurrent findings of the two Courts below whereby her suit for declaration regarding her share in the legacy of her father Amir Rahim, was dismissed by Illaqa Qazi-VIII, Swat vide judgment and decree dated 15-5-2002 and her appeal against the same was also dismissed by the Zilla Qazi, Shangla camp at Swat, vide his judgment and decree dated 11-6-2004.
2. The petitioner, in her suit, had claimed her 'Share share in the legacy of her father but her stance was not accepted by the defendant/ respondent "No,1, her brother Saif-ur-Rehman. Mst. Zahida, her real sister/defendant No,2 through her attorney was also in concurrence with him by jointly filing written statement. They, in reply, alleged that the share of plaintiff as well as that of respondent No, 2, the two sisters, was given to them in cash amounting to Rs,80,000 each by way of a 'Jirga' decision in the year 1980. The Illaga Qazi, after conclusion of trial, dismissed her suit and said dismissal was also upheld by the appellate Court by placing reliance on the stance of defendant/ respondents.
3. Learned counsel for the petitioner, at the very outset, submitted that the relation inter se the parties and the status of the disputed property as legacy of their common predecessor, was never disputed and only fact alleged by the respondents was that the petitioner was paid her due in cash for which burden was upon the respondents who have failed to discharge the same and the Courts below by misreading and misappreciating the evidence and the law, dismissed her suit which has resulted into an unlawful exercise of their jurisdiction. Reliance was placed on the cases of Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCM R 1447 and Rab Nawaz Khan and another v. Mst. Waziran Mai and 6 others 2004 M LD 1699. As against that, the learned counsel for the respondents while supporting the findings of the Courts below submitted that no doubt burden in this regard was on the defendant/respondent and he has rightly discharged the same; that the respondent No,2, through agreement dated 27-2-1998, has also admitted the receipt of her share in cash in the legacy of her father on the strength of a 'Jirga' decision in the year 1980. He further argued that the very constitution of 'Jirga' was admitted by the petitioner while cross-examining the respondent's witnesses by way of positive suggestions; that besides such admissions, the settlement through 'Jirga' has also been established by the witnesses concerned. His next argument was that, admittedly, the predecessor of the parties had died some fifty years ago during the 'Riwaj', so the petitioner if had any right to claim her share in the legacy of her father, was not entitled to claim the same and thus her claim was barred by time under Para 4(2) of Regulation No, II of 1975. He in supported of his arguments, placed reliance on the case of Abdul Jabbar and others v. Muhammad Jabbar (2002 SCMR 117), Khona Gul v. Mian Said Farid (PLD 1983 Supreme Court 209), Dilawar Jan v. Gul Rehman and 5 others (PLD 2001 Supreme Court 149, Khalil-ur-Rehman and 3 others v. Talayzar Khan (PLD 1992 Supreme Court 442.
4. Learned counsel for the parties were heard and record of the case was gone through with their valuable assistance.
5. Perusal of the record would confirm the fact that the relations inter se the parties and the status of the property being legacy of the common propositus of the parties never remained in dispute.
This would simply mean that all the legal heirs i,e, the parties to the suit would be entitled to receive their respective shares according to 'Sharjah' in the property left by their common predecessor.
Now the only question, as alleged by the respondent No,1 is that both the sisters i,e, petitioner and respondent No,2 had received their due on the strength of a settlement reached between the parties through `Jirga' in the year 1980. The respondent No, 1 and his witnesses were unequivocal regarding the fact that the verdict of alleged `Jirga' was not reduced into writing. Legally it is now for the respondent No,1 to prove through clear, unequivocal and cogent evidence that a "Jirga" was convened to resolve the issue of legacy of their predecessor and after its decision, every one i,e, the petitioner and the respondent No,2 were given their due as per verdict of the "jirga". Instant suit by the petitioner was filed on 5-12-1997, but the document of reliance produced by the respondent No,1 as Ex. DW 1/1, an agreement dated 27-2-1998, was executed after filing of instant suit and admittedly, the petitioner was neither present at the time of execution of said deed, nor she thumb impressed/signed the said document and strange enough that the respondent No,2, on her behalf as well as on behalf of the petitioner, had admitted the receipt of Rs:80,000 in the year 1980 in lieu of their 'Share share in the legacy of their father. If at all it is accepted as a genuine document, then it will have binding force only against the respondent No,2 as she alone is said to have thumb impressed the same. She under the law cannot accept it on behalf of petitioner and naturally the same will have no effect against the rights of plaintiff/petitioner. The argument of the learned counsel for respondent that the admission made by respondent No,2 was true and that is why she has made the same against her own interest as contemplated in Article 31 of Qanun-e-Shahadat Order 1984, would not be helpful to him. This at the most would be binding on respondent No,2. The case of Abdul Jabbar supra (2002 SCM R 1173) can be referred to the extent of respondent No,2 alone. It has also come on the record that the alleged 'Jirga' was convened in the house of respondent No,
1. Though the presence of petitioner at that time has been alleged by the respondent, but the same was denied by the petitioner. The positive suggestions by the petitioner counsel, in the overall scenario and circumstances of the case would not undo the categoric denial by the petitioner and it might be because of lack of legal acumen of the counsel and this will not affect the legal and Sharai right of the petitioner. Only said suggestions will not absolve the respondent from the heavy burden of proof on his shoulders as on the other side right of inheritance of petitioner is involved. The referred admissions are reproduced for ready reference:-- {{URDU TEXT}}.
' A look at the above-quoted portions of the cross-examination of the defendant witnesses, by keeping in mind the circumstances of the present case, cannot be considered as admissions on the part of plaintiff. Since specific plea with regard to payment of the due share of his sisters was raised by respondent No,1, then that fact should have been proved by him through cogent and reliable evidence and he was not supposed to refer to the above-said suggestions made by the petitioner rather he should have relied upon his own evidence. His evidence in this regard if seen, then one comes to the conclusion that the findings of the two Courts below were the result of misreading of evidence. The single material contradiction in the statement of respondent No,1 and his witnesses would be sufficient to negate the version of respondent No,1, when he says that just after the decision of "Jirga", Haji Nazir DW-2 paid 80/80 thousands to both of his sisters. Haji Nazir is none else but his brother-in-law i,e, husband of respondent No,2. DW-2 and other witnesses say that the share of petitioner was paid to her by way of installments of Rs,8000 on harvesting of each crop and as such she received her due in five years. Besides, the respondent No,1, in his cross- examination, has categorically admitted that the said agreement was made with respondent No,2 and such type of admission by him cannot be used to defeat the rights of petitioner. {{URDU TEXT}} ' The very execution of the document Ex.DW 1/1 itself makes it doubtful. The mode of execution and attestation as admitted by the respondent witnesses would make it clear that respondent No,2 never appeared before the notary public. Besides, the respondent No,2 never appeared himself to depose in support of her stance in written statement and the subsequent document Ex.DW 1/1.
' For the sake of arguments, if the stance of respondent No,1 is accepted, then the payment of Rs:80,000 as a share of petitioner, has also not been proved through cogent and reliable evidence.
The two Courts below have misconstrued and misread the evidence and have failed to appreciate the same in its true perspective.
' As far as the argument of learned counsel for respondent that the father of the parties died some fifty years ago during "Riwaj", so, her suit was barred by afflux of time and thus could not be referred to "Jirga" by referring to Para 4(2) of the Regulation II of 1975, would not be a valid argument in the circumstances of the case in hand. Besides, the learned counsel failed to point out any customary Law putting any embargo of timeframe for seeking one's right in inheritance. This case, as discussed above, involves purely the question of inheritance and under any law of the land whether it is customary, 'Riwaj' or any statutory law, no timeframe can be fixed for claiming a 'Sharai' share by a person in the legacy of his predecessor, because the inheritance always opens just after the death of a person and every legal heir becomes entitled to his respective share in the legacy of the deceased and thereby attains the status of a co-sharer/co-owner in the property so received. Incorporation of the said share in the revenue record at any subsequent stage would be E immaterial and would not affect right of inheritance. Yet another legal angle of the case that it is decades old principle of law that no limitation would run against co-sharer/co-owner, even if a cosharer/co-owner is out of physical possession of the property. Similarly, every co-sharer/co- F owner is presumed to be in symbolic possession of his property and the physical possession of a co-sharer/co-owner would amount to possession of all the co-sharers/co-owners, who cannot be denied his/her right on account of afflux of time.
' For ready reference, provision of Para 4(2) of Regulation II of 1975 is reproduced as under:--
4. Constitution of, and reference of a dispute to,'"[Jirga].-
(I) ...................
(2) [Notwithstanding anything contained in the Limitation Act, 1908 (IX of 1908), a case shall not be referred to a Jirga if a civil suit in respect thereof would be time barred under any rewaj, custom or usage having the force of law].
(3)
' The above-quoted provision of law would reveal that the same is not applicable in the circumstances of the case in hand, as discussed above.
' This Court is in full agreement with provisions of Law as discussed in the case-law referred to by the learned counsel for respondent i,e, Khona Gul v. Mian Said Farid (PLD 1983 Supreme Court 209, Dilawar Jan v. Gul Rehman and 5 others, (PLD 2001 Supreme Court 149, Khalil-ur-Rehman and 3 others v. Talayzar Khan (PLD 1992 Supreme Court 442, and this would also not be helpful to him , as the same were with regard to preemption suits wherein the rights of the parties were denied on the question of limitation and no question of inheritance was involved in all these cases. When the learned counsel for the respondent was confronted with the landmark judgment of the apex Court in the case of Ghulam Ali and 2 others v. Mst. Ghulam Samar Naqvi (PLD 1990 SC Page-1), then his reply was not much less satisfactory to substantiate his argument. His simple reply was that the case of Ghulam Ali supra was not looked into in this perspective. But in the opinion of this Court, the law of limitation in general cases of civil nature cannot be equated with the cases of law of inheritance, as discussed above. So, the learned counsel for respondent cannot take protection of Para 4(2) of Regulation II of 1975.
' So, in this view of the matter, the findings arrived at by the Courts below are the result of misreading and non-reading of material evidence on the record and the two Courts below have failed to exercise their jurisdiction in accordance with law and thus, have fallen into an error of law.
Said findings cannot be left to remain in field. Hence, this revision petition is allowed, the judgments and decrees rendered by the Courts below are set aside and resultantly, the suit of the plaintiff/ petitioner is decreed, as prayed for, in her favour with no order as to costs.