Ali Akbar Qureshi, J:- This civil revision assails the judgments and decrees dated 27.09.1995 and 31.10.1991, whereby the learned Courts below dismissed the suit for declaration filed by the petitioners on the point of inheritance.
2. No one has entered appearance on behalf of the respondent, therefore, proceeded ex-parte.
3. As reveals from the record, a suit for declaration was filed by the petitioners contending therein, that one Rehman s/o Fateh, predecessor of the parties to the suit, was owner of land measuring 62 kanals and 16 marlas, in khata No.76 and 01 marla in Khata No.77; Rehman s/o Fateh died issueless and mutation No.193, dated 30.04.1980 was sanctioned in favour of the respondents regarding the legacy of Rehman s/o Fateh, depriving the petitioners/plaintiffs of their inheritance share although the petitioners are residuary of equal decree.
The suit was contested by the respondent mainly on the ground, that the suit is barred by time and the respondent also did not admit the pedigree table given by the petitioners in the plaint.
On the controversial pleadings of the parties the learned trial Court framed five issues including issue No.3, relating to the limitation of the suit. The learned trial Court recorded the evidence of the parties and finally after hearing the parties dismissed the suit. Being aggrieved of the judgment and decree passed by the learned trial Court the petitioners preferred an appeal, wherein the learned appellate Court granted the relief to the extent of the status of the petitioners and declared, that the petitioners are also real legal heirs of Rehman s/o Fateh and reversed the findings of issues No.1 & 2 but dismissed the appeal on the ground of limitation, hence this civil revision.
3. The record and the findings of the learned appellate Court was perused. Arguments heard.
4. It appears from the record, that the learned trial Court non-suited the petitioners on the ground, that the petitioners are not legal heirs of Rehman s/o Fateh, therefore, are not entitled to inherit anything from the legacy of Rehman s/o Fateh, who died issueless. In appeal, the learned appellate Court although reversed the findings on issue No.1 & 2 and declared that the petitioners/plaintiffs No.1 to 3 are real legal heirs of Rehman s/o Fateh and are of equal degree but dismissed the appeal on the ground that the suit for declaration has been filed by the petitioners after the time stipulated by the law.
Therefore, the only question which is to be appreciated and decided is the question of limitation involved in the matter.
4. Admittedly, in this case the question of inheritance is involved and as evident from the record, the petitioners claiming themselves legal heirs of Rehman s/o Fateh and seeking the shares out of the legacy left by Rehman s/o Fateh. The learned trial Court while non-suiting the petitioners on the question of limitation has over looked the relief claimed by the petitioners. In the matter of inheritance the Honourable Supreme Court of Pakistan has observed in a landmark esteemed judgment titled "Ghulam Ali and two others v. Mst. Ghulam Sarwar Naqvi" (PLD 1990 SC 01), that firstly there is no need to file the suit for declaration to correct the revenue entries and if the suit is filed for this purpose the Law of Limitation, will not apply. The relevant findings of the Honourable Supreme Court of Pakistan is reproduced as under:- This controversy now stands finally settled by a recent judgment of this Court. It was held in "Haji v.
Khuda Yar" (PLD 1987 Supreme Court 453) that a similar adverse entry and non-participation in the profits of the property would not amount to an ouster. While taking note of the earlier case of "Anwar Muhammad and others v. Sharif Din and others" (1983 SCM R 626) in extenso, it was observed that "wrong mutation conferred no right in property as revenue record is maintained only for purposes of ensuring realization of land revenue."
"The similar effect is the decision in "Najabat and others v. Saban Bibi and others" (PLD 1982 SC 187).
It was held in the circumstances of that case that the co-sharer/co-owners were not at all obliged to file a suit to seek a declaration to the effect that a mutation had wrongly been sanctioned. It was also held that a suit filed, due to denial of rights of the plaintiff/co-sharer, for declaration would be within time and the Revenue authorities on success of such suit would be required by law to correct the wrong mutation entries."
In another judgment titled "Muhammad Zubair and others v. Muhammad Sharif" (2005 SCM R 1217), it was held that:- "7. There is no cavil to the proposition of law that on the enforcement of Muslim Personal Law (Shariat) Application Act, 1962 as amended by Act XIII of 1983, the property of last male owner subject-matter of limited interest would be deemed to have devolved upon his legal heirs on his death, and the right of succession would not be defeated by the law of limitation or the principle of res judicata as no law or judgment can override the law of Sharia which is superior law."
In another judgment titled "Mst. Gohar Khanum and others v. Mst. Jamila Jan and others" (2014 SCM R 801), it was held that:- "3 (sic.) The main emphasis of the learned counsel for the appellants was that the suit was time barred having been filed 50 years after the mutation dated 31.08.1940. This contention, is however, easily dispensed with as Mst. Zarina Jan admittedly came to own a 1/3rd share of the land by operation of law and not by any mutation. The mutation was meant to record the legal entitlement of Dost Muhammad and Mst. Zarina Jan. If the mutation was erroneously made in favour of Dost Muhammad, such mutation would not create title in favour of Dost Muhammad in accordance with Sharia Law of inheritance. Learned counsel for the appellants repeatedly emphasized that Mst.
Zaria was fully aware of the decision and assertion of title by her brother Dost Muhammad and Dost Muhammad had also constructed a house on the disputed land. This, however, does not attract the provisions of the Limitation Act in the circumstances of the present case."
5. In view of the facts and the law laid down by the Hon'ble Supreme Court of Pakistan, it can safely be held, that the suit for declaration filed by the petitioner was within time and the petitioners being the legal heirs of Rehman s/o Fateh are entitled to inherit the property to the extent of their shares.
6. Resultantly, this civil revision is accepted, the findings recorded by the learned appellate Court on issue No.3, which relates to the limitation, are set aside and declared that the suit for declaration filed by the petitioners is within time. No order as to cost.