Sadaqat Ali Khan, J.: This Civil Revision No. 111-D of 2007 has been filed by the present petitioners against the judgment and decree dated 6.1.2007 passed by Additional District Judge, Haroonabad according to which appeal of the present respondents was accepted filed by them against the judgment and decree dated 25.6.2005 passed by Civil Judge, Haroonabad according to which suit of the present respondents was dismissed.
2. The brief facts of the case are that on 13.11.1999 present respondents being plaintiffs filed suit for declaration qua the suit property whose details are mentioned at the head note of the plaint with the assertion that they being legal heirs of Mst. Maryam Bibi daughter of Ahmad Yar (deceased) last male owner of the suit property are owners in possession of the suit property. It is further asserted that inheritance mutation No. 121 (Ex.P2) dated 13.1.1966 pertaining to Ahmad Yar deceased was illegally sanctioned in favour of present petitioners by excluding present respondents (sons and daughters of Mst. Maryam Bibi predeceased daughter of Ahmad Yar deceased) which is liable to be cancelled.
3. On the other hand, present petitioners being defendants submitted their written statement and denied the assertions made by the present plaintiffs/respondents.
4. Learned trial court, out of the divergent pleadings of the parties, framed the following issues: - "Issues:
1. Whether the mutation No. 121 dated 13.1.1966 is illegal, against law and facts, collusive, ineffective qua the rights of the plaintiffs and defendants No.6 & 7 and liable to be cancelled?OPP
2. Whether the suit of the plaintiffs is time barred?OPD
3. Whether the plaintiffs are estopped to file this suit by their words and conduct?OPD
4. Whether the suit of the plaintiffs is not maintainable in its present form?OPD
5. Whether the plaintiffs have not fixed the correct valuation of the court fee? If so, its effects?OPD
6. Whether the defendants No. 1 to 5 are entitled to recover special costs u/s 35-A CPC?OPD
7. Relief.
5. Muhammad Nawaz one of the plaintiffs/present respondents appeared as PW-1, Muhammad Saleem appeared as PW-2 and produced in documentary evidence documents Ex.P1 & Ex.P2.
6. On the other hand, Muhammad Sharif one of the defendants/present petitioners appeared as DW-1, Muhammad Akbar appeared as DW-2 and produced in documentary evidence documents Ex.D1 to Ex.D5.
7. Learned trial court after hearing the arguments of the learned counsel for the parties dismissed the suit of the present respondents vide judgment and decree dated 25.6.2005. Appeal filed by the present respondents was accepted by Additional District Judge, Haroonabad vide judgment and decree dated 06.1.2007 hence this civil revision filed by the present petitioners.
8. Learned counsel for the petitioners submitted that impugned judgment and decree of the lower appellant court are against law and facts on the file and are liable to be set-aside. It is further submitted that impugned judgment and decrees of lower appellate court are the result of misreading and non-reading of evidence.
9. On the other hand, learned counsel for the respondents has vehemently opposed this civil revision and supported the impugned judgments and decrees of the lower appellate court.
10. I have heard the learned counsel for the parties and perused the record.
11. Ahmad Yar predecessor of the parties was owner of the suit land. Present respondents/plaintiffs stated in para 2 of the plaint as under: - {{URDU TEXT}}
12. The claim of the plaintiffs/present respondents is that they are sons and daughters of Mst.
Maryam Bibi daughter of Ahmad Yar deceased. Mst. Maryam Bibi had died in the life time of Ahmad Yar deceased (her father). Plaintiffs/respondents being sons and daughters of Mst.
Maryam Bibi predeceased daughter of Ahmad Yar were entitled to get their 'Sharie' share from the property left by Ahmad Yar deceased being sons and daughters of predeceased daughter of Ahmad Yar and inheritance Mutation No. 121 dated 13.1.1966 Ex.P2 was illegally sanctioned in favour of present petitioners by excluding sons and daughters (present respondents/plaintiffs) of Mst.
Maryam Bibi predeceased daughter of Ahmad Yar deceased. Present petitioners in para 2 of their written statement have initially denied the relationship between Mst. Maryam Bibi and Ahmad Yar deceased and stated as under: - {{URDU TEXT}}
13. However, Muhammad Sharif one of the present petitioners (son of Ahmad Yar deceased) while appearing as DW-1 admitted in cross-examination that Mst. Maryam Bibi was his sister. The relevant para is hereby reproduced: - {{URDU TEXT}}
14. Further present petitioners being defendants have stated in para 3 of their written statement that Ahmad Yar had died in the year 1951 but have failed to prove the same. Defendant No.1 Muhammad Sharif son of Ahmad Yar deceased stated in cross-examination as under: -
15. I have perused disputed inheritance mutation No. 121 (Ex.P2) which was sanctioned on 13.1.1961.
On the other hand, plaintiffs/present respondents stated in para 3 of the plaint as under- {{URDU TEXT}}
16. Relevant section 4 of Muslim Family Laws Ordinance 1961 is hereby reproduced: - "4. Succession- 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".
17. Considering above, I am of the opinion that Mst. Maryam Bibi was the real daughter of Ahmad Yar deceased and had died in the life time of Ahmad Yar deceased and present respondents/plaintiffs are sons and daughters of above mentioned Maryam Bibi predeceased daughter of Ahmad Yar deceased and are entitled to get their shares from the inheritance of Ahmad Yar deceased being sons and daughters of Mst. Maryam Bibi predeceased daughter of Ahmad Yar deceased. Inheritance mutation No. 121 (Ex.P2) was wrongly sanctioned on 13.1.1966 in favour of present petitioners by depriving plaintiffs/present respondents from their legal shares.
Reliance is placed on case Mst. Bhaggay Bibi and others v. Mst. Razia Bibi and others (2005 SCMR 1595) in which Hon'ble Supreme Court of Pakistan has observed at page 1597 as under: - "This section does not override the law of Shariah and consequently the parties will not get more than their share in the property in accordance with law of Shariah and the widows and daughters of Maula Dad would get to which they would have been entitled on the death of Maula Dad, after opening of succession of Mughla. The purpose of enacting section 4 (ibid) was to cater the need of grandchildren to remove their sufferings but their provision cannot be interpreted in a manner effecting the shares of other descendants in the property in accordance with law of Shariah. This Court in Zainab v. Kamal Khan PLD 1990 SC 1051 resolving the controversy arising out of the provision of section 4 of Muslim Family Laws Ordinance, 1961, held that according to law of Shariah, the heirs of predeceased children would inherit what their father or mother would have inherited during their life time on the opening of succession"
18. The argument of the learned counsel for the petitioners that disputed Mutation No. 121 (Ex.P2) was sanctioned on 13.1.1966 whereas present respondents/plaintiffs has filed suit on 13.11.1999 out of the limitation period has no substance because limitation would not apply to enforcement of right of inheritance in a estate of deceased predecessor. Suit by co-owner seeking share of inheritance has no limitation. Reliance is placed on case "Mohsin Khan and 3 others v. Ahmad Ali and 2 others (PLD 2004 Lahore 1) in which it is held as under:- "As regards the question, whether the suit is within limitation, it is settled law that there is no limitation for a co-owner of the property, particularly in possession and seeks the share of inheritance. Besides, as per view enunciated in PLD 1990 SC SC 1, limitation would not apply where the person seeks to enforce a right of inheritance in the estate of a deceased predecessor.
Now attending to the question, whether the petitioners were barred to file the suit, as earlier they did challenging the Mutation No.6 dated 06.08.1959 and withdrew their claim, suffice it to say that onus to prove issue No.7- A was on the shoulder of the respondents, but they have not adduced any evidence to strictly establish if the earlier suit was based upon the same cause of action and was withdrawn without the permission of the Court.
The argument of learned counsel for the respondent that because Mohsin had admitted in his cross-examination that earlier the suit was filed and withdrawn, it may be held that no further question was put to him if such withdrawal was with or without permission of the Court, therefore, it cannot in the absence of the plaint of the earlier suit and the order of the Court be safely and definitely held that the suit was hit by Order 23, rule 1.
It may be pertinent to state here that the counsel for the parties have in writing (Mark-A), duly signed by them placed on record the proportion in which the legal heirs of Shahmand shall be entitled to inherit. Allah Jowayee 1/8, Nawab Bibi 7/16 + Ahmad Ali 7/64, Dara (the other nephew of Shahmand) 7/64, Muhammad Nawaz and Shahnawaz 7/64 each. It may further be added that though Dera was not a party and Muhammad Nawaz and Shah Nawaz did not contest the suit, yet the counsel for the parties have stated that they have no objection, if the estate of Shahmand is distributed on the basis of the shares specified by them in writing Mark-A. And further that as Allah Jawayee and Dara had died, therefore, their respective shares shall be given to their legal heirs.
In the light of above, I set aside the findings of the Courts below on Issues No.5 and 7-A and finding of the Court of appeal on Issue No.1, the judgments and decrees of the Courts below are set aside and the suit of the petitioners is decreed in the share proportion as specified in paragraph No.8 of this judgment. The petition is according allowed."
Further reliance is placed on case "Muhammad Shamim through legal heirs v. Mst. Nisar Fatima through legal heirs and others" (2010 SCMR 18).
19. Considering above, I am of the view that learned lower appellate court rightly by accepting the appeal of the present respondents/plaintiffs decreed their suit through the impugned judgment and decree which are not result of misreading and non-reading of evidence. Learned counsel or the petitioners could not point of any illegality in the impugned judgment and decree of lower