' SHAHID KARIM, J.---This is an application under section 115 of Civil Procedure Code, 1908 by way of revision petition against the concurrent judgments and decrees dated 13-3-2001 passed by the Civil Judge, Muzaffar Garh and dated 2-3-2005 by Addl. District Judge, Muzaffar Garh.
2. This case has historical facts and a summary of these facts.Can be gleaned from the plaint as well as the written statements filed by the parties.
3. The case set up in the plaint was that the petitioners were sons of Hamid Khan who was the husband of Mst. Saddan. Mst. Saddan in turn was the daughter of Gohar Khan who was the son born out of the wedlock of one Habib Khan and Mst. Sahib. It is not denied by the parties that the respondents Nos.1 to 3/plaintiffs are all brothers and respondent .No,4 is their sister. The petitioners are the descendants of real brother of Hamid Khan. The cause of action in the plaint relates to the inheritance of Habib Khan who was the brother of Kaura, the predecessor of Hamid Khan and his brothers. It has been submitted in the plaint that Habib Khan had two wives Mst Jannat and Mst.
Sahib. Mst. Sahib predeceased Habib Khan in the year 1924. Habib Khan died in the year 1925. They had a son Gohar Khan out of their wedlock who died in the year 1918. Gohar Khan had two daughters Mst. Saddan and Mst. Allah Wasai alias Wassu. Mst. Saddan was married to Hamid Khan and it is this, part of the inheritance of Mst. Saddan which is in dispute. According to the plaint, sister of Mst. Saddan, Mst. Wassu died in the year 1951 and so the property belonging to Mst. Wassu reverted to Mst. Saddan as Mst. Wassu had no offspring. Mst. Saddan died in the year 1930 and Wahid Bukhsh, her son, also died in the year 1938. In a nub, the claim in the plaint is that the property of Mst. Saddan and Wahid Bukhsh 'should have devolved upon Hamid Khan and the respondents/ plaintiffs being the sons of Hamid Khan were entitled to the share to his extent. A declaration had, therefore, been sought for setting aside the Mutation No,87 dated 7-5-1925 in respect of land measuring 111 Kanals, 5-Marlas out of a total land measuring 268 Kanals belonging to Habib Khan. The cause of action, according to the plaint, arose precisely because after the death of Habib Khan, the entire property was acquired in inheritance by the impugned mutation by Mst. Jannat claiming to be the only wife of Habib Khan. Thus, according to the averments in the plaint, the respondents/plaintiffs had been deprived of their lawful share.
4, The plaint was filed on 28-10-1993 to challenge the mutation No,87 entered on 7-5-1925.
5. In the written statement, the petitioners/defendants took a number of objections. On the threshold, it was asserted that the plaint was barred by limitation. It was also asserted that after so many years it was not permissible for a suit to be filed to set aside a mutation entered in the year 1925. Also it was asserted that since Hamid Khan had not challenged the said mutation in his lifetime, the respondents/plaintiffs were, estopped from challenging that mutation now.
6. Learned counsel for the petitioners/defendants has referred to the evidence produced by the respondents/plaintiffs and has pointed out substantial discrepancies in the said evidence. He denies that Mst. Sahib was the wife of Habib Khan and submits by referring to various documents that the fact that Mst. Sahib was the wife of Habib Khan, has not been brought home by the respondents/plaintiffs.
7. The learned counsel for the respondents/plaintiffs, however, refers to the pedigree table Ex.P.17 to assert that according to the said pedigree table Mst. Sahib is the wife of Habib Khan and since the pedigree table has not been rebutted, presumption of truth is attached to it He has relied upon Noor Salam and others v. Gul Badshah and others (PLD 2002 SC 622) in this regard. His precise submission is that Mst. Jannat claiming to be the only wife of Habib Khan had taken the entire inheritance of Habib Khan and by playing fraud got executed the impugned Mutation No,87 dated 7-5-1925.
8. As is evident from the facts explicated above, the dispute between the parties is only with regard to the property which was to devolve upon Mst. Sahib as the lawful wife of Habib Khan from whom, Hamid Khan was to claim it and which in turn was to devolve upon the respondents/plaintiffs as the sons of. Hamid Khan. It is pertinent to mention that the petitioners had been proceeded against ex parte on 20-1-2001 and thus no evidence was produced in defence by the petitioners. However, the learned counsel for the petitioners has taken me through the evidence produced by the respondents/plaintiffs and has asserted on the basis of that evidence that the respondents/plaintiffs have failed to bring home the onus of the issues which was cast upon them.
It must be borne in mind that Habib Khan died issueless and it seems that the property has all along been devolved upon his heirs under the customary law. By virtue of that, the property was inherited by Mst. Jannat as the widow of Habib Khan. When Mst. Jannat died it devolved upon the nephews as collaterals once again under the customary law of inheritance.
9. I have gone through the oral as well as documentary evidence produced by the respondents/plaintiffs. Habib Bukhsh P. W.1 (one of the plaintiffs) in the cross examination admitted that the land under dispute has been subject to two consolidation proceedings and that their father Hamid Khan was part of those consolidation proceedings. He also admits in his deposition that consolidation proceedings took place after the death of his father too and the said witness was part of those consolidation proceedings. He also admits to filing an appeal against the consolidation proceedings which was dismissed by the Commissioner. Allah Wasaya appeared as P.W.2. He seems to be unrelated to the entire transaction. He feigns complete ignorance as to inheriting the property of Habib Khan. In the latter part of the examination in chief he admits that the nephews of Habib Khan are entitled to his inheritance. In the cross-examination, he again expresses his ignorance as to the fact that from which wife, Habib Khan had sons and daughters.
He was put a question to which he replied that Sukkhan was the name of his wife and then retracted in the same breath and said that Sukkhan was the name of his mother. The trial court was constrained to observe that the witness could not tell the difference between the wife and the mother.
10, As for the documentary evidence, both the learned counsel for the parties have referred to the entries in the revenue record Ex.P.14, P.15 and P.17, which contained the Shajrah of Habib Khan and according to them, Mst. Sahib is mentioned as wife of Habib Khan in the Shajrah prepared in the said entry of revenue record.
11. Both the courts below have made the findings on issues Nos.1 and 2 as the foundation of the case and have on the basis of findings on these issues, proceeded to decide the rest of the issues.
Issues Nos.1 and 2 have been decided primarily on the basis that the fact of- Mst. Sahib being the wife of Habib Khan having been proved by the respondents/plaintiffs, by necessary corollary the respondents/plaintiffs were entitled to inheritance under the Muslim Law of Inheritance and thus proceeded to declare the Mutation No,87 in favour of Mst. Jannat as without lawful authority. This mutation, it would be relevant to submit, was inserted in the year 1925 however, the subsequent mutation No,7.07 which was executed in favour of the petitioners, has not been challenged and no declaration has been sought in respect thereof. This seems to be a palpable mistake and the courts below have not paid any heed, to this aspect.
12. However, in my opinion, the pivotal issue and the one that exercises a gravitational pull on the entire controversy was the issue No,5, viz. "whether the plaintiffs are estopped by their words and conduct to file the present suit? OPD." It is admitted on all hands and is a common ground that Hamid Khan had, during his lifetime, chosen not to challenge the inheritance in favour of Mst.
Jannat. It is also an admitted fact brought forth from the oral evidence of the respondents/plaintiffs that three consolidation proceedings in ,respect of the disputed property had taken place, in two of which Hamid Khan himself participated and in one the respondents/plaintiffs have participated. In view of the admitted position that Hamid Khan had not chosen to challenge the inheritance during his lifetime, the question was whether the respondents/plaintiffs could challenge it now having acquiesced in the mutation in favour of Mst: Jannat and subsequent mutation in favour of the petitioners and having kept their silence for decades. Two judgments of the Supreme Court of Pakistan have dilated upon an issue of a similar nature and the observations and the findings returned give some actuality to the facts of the instant case. In Abdul Haq and another v. Mst. Surayya Begum (2002 SCM R 1330) the dispute related to a mutation executed in the year 1960 in favour of one of the heirs of the owner of the property who died in that year. The heirs of the predeceased son filed a suit in the year 1979 for declaration and sought to inherit the property. The Supreme Court of Pakistan observed as under:- - "11. Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently, for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his lifetime. "
13. This judgment was approved and relied upon in Muhammad Rustam and another v. Mst.
Makhan Jan and others (2013 SCM R 299). In the latter judgment of Supreme Court of Pakistan, the petitioners sued for declaration impugning the mutation of inheritance dated 9-7-1927 and claim for their share of inheritance was decreed by the trial court ant was affirmed in appeal. It was, however, reversed by the High Court and the suit was dismissed. Upon a challenge to the said judgment of the High Court, the Supreme Court of Pakistan refused to grant leave to appeal with the following observations: "3. Having heard petitioners' learned counsel at some length, we find that admittedly the impugned mutation of inheritance bearing No,571 dated 9-7-1927 was never challenged by Mst.
Karam Jan; that she remained alive till 1975 and no reason whatsoever is reflected either in the plaint or in the evidence led to indicate as to why she did not challenge the said mutation. It has never been the case of the petitioners that either they or their predecessor-in-interest were unaware of the said mutation. In the afore-referred circumstances, the judgment of the learned High Court is unexceptionable. So far as the precedent case-law to which reference has been made by petitioner's learned counsel is concerned, the same is distinguishable as in none of the judgments the question of locus standi was a moot point. In Abdul Hag and another v. Mst.
Surayya Begum (2002 SCMR 1330), this Court inter alia was seized of a similar issue and while dismissing the petition, it observed as follows:- "11. Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his.Heirs who filed .The suit as late in 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently, for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his lifetime. ""
14. The judgments referred to above, in my opinion, should be the guiding principles in such matters. The courts below have utterly failed to advert to this aspect of the case. By the impugned judgments, a mutation effected in the year 1925 has been upset while much water had flowed under the bridge. The respondents/plaintiffs were estopped by their words and conduct to file the suit and to claim inheritance in the year 1993 while admitting that their predecessor-in-interest Hamid Khan had not challenged the said mutation while he was alive knowing fully well regarding the mutation and having participated in the proceedings for consolidation.
15. The learned counsel for the respondents/plaintiffs has referred to case law in support of the proposition that in matters of inheritance, the issue relating to limitation is not relevant and should come in the way of granting relief to a person otherwise entitled. That principle is not without its exceptions. Moreover, the courts below have generally accepted the said prayer depending upon the facts and circumstances of each case. In Mehrban and 3 others v. Mst. Sahib Jan (2005 SCM R 1832) the Supreme Court accepted the view taken by the High Court that the suit was within time on the ground that limitation would start from the date of knowledge of transaction and not from the date of mutation. Rehmatullah and others v. Saleh Khan and others (2007 SCM R 729) was relied upon for the proposition that in case of a void order limitation would not run in such order. Also that in matters of inheritance the question of limitation would not arise in such cases. The proposition that in matters of inheritance the question of limitation would not necessarily arise, is not precisely the proposition in issue in the instant case. The issue here is that the mutation in question was not challenged by Hamid Khan during his lifetime and it has not been asserted either in the plaint or brought forth in the oral evidence as to why the said challenge was not made. The issue of limitation being not a valid defence in matters of inheritance would pale into insignificance in the peculiar facts and circumstances of the present case. It will have to be juxtaposed and squared against other factors like the conduct and acquiescence of a party. It is also not the case of the respondents/plaintiffs that they or their predecessor-in-interest were unaware of the said mutation. Juma Khan and others v. Mst. Bibi Zenaba and others (PLD 2002 Supreme Court 823) is also to the effect that in a case relating to rights of inheritance the question of limitation would not arise. Noor Salam and others v. Gul Badshah and others (PLD 2002 Supreme Court 622) has been cited for the proposition that presumption of truth and genuineness was attached to a pedigree table under the Land Revenue Act, 1967. There is no cavil with the proposition. However, as brought forth above, the proposition in the instant case is materially different from the one which has been canvassed by the respondents/plaintiffs and on the basis of which both the courts below have returned their findings. In Bashir Ahmed v. Abdul Aziz and others (2009 SCM R 1014) the question related to West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) and inheritance under that Act. The said question does not arise in the instant case and, therefore, the cited judgment is not applicable.
16. The learned counsel for the respondents/plaintiffs has relied upon various provisions of Mulla on Mahomedan Law as well as section 4 of Muslim Family Law Ordinance 1961 to assert that in the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be, would have received, if alive. Once again, the mandate of section 4 of Muslim Family Laws Ordinance, 1961, is not disputed nor is it in dispute that in ordinary circumstances the principles of inheritance would be fully applicable. However, in the peculiar facts and circumstances of the case, the ratio decidendi of the cases decided by the Supreme Court of Pakistan viz. Muhammad Rustam's case (2013 SCM R 299) and Abdul Haq's case (2002 SCM R 1330) supra would be fully applicable and would form the foundational basis on which the decision ought to have been rendered by the courts below.
17. In view of what has been adumbrated, the revision petition is accepted; the findings of the courts below on issues Nos.1, 2 and 5 are set aside, these issues are decided in favour of the petitioners/defendants. The decision on the issues Nos. 4 and 8 vide the impugned judgments and decrees are also set aside. As a consequence, the suit of the respondents/plaintiffs is dismissed.