' MUHAMMAD ALAM, J.---This civil second appeal has been filed by the appellants against judgment/order dated 27-09-2014, passed by the learned District Judge Skardu. Through impugned judgment/ order, the learned first appellate court accepted the appeal, CFA No,(38/2012 ADJ) CFA No,11/2014, DSJ.
2. Mr. Akbar Khan, who was then living, filed Civil Suit No,219/2008 in the trial court of Civil Judge First Class Shigar Camp at Skardu, for seeking declaration that he is owner of the suit land as heir of his deceased mother, Mst. Hajira. The learned Civil Judge, through his judgment/decree 'dated 15-11- 2012, decreed the said suit. Then respondents/defendants filed appeal in the first appeal court. The learned District Judge Skardu, through his judgment/order dated 27-09-2014, accepted the said appeal and set aside the judgment/decree dated 15-11-2012 of the learned trial court. By then, Mr. Akbar Khan died, so his legal heirs filed the appeal in hand as Civil Second Regular Appeal, feeling aggrieved from the said order of the learned District Judge. So, hereunder, appellants/plaintiffs mean the legal heirs of the deceased Akbar Khan.
3. From plain perusal of order sheet dated 25-11-2015, it is evident that the learned counsel for parties were directed for advancing arguments positively on the adjourned dated, i.e,, 17-05-2016.
On 17-05-2016, attorney for appellants appeared while respondents absented themselves, therefore, respondents were proceeded ex parte and attorney for appellants was directed to Come with counsel on 19-05-201 fully prepared for advancing ex-parte arguments. On 19-05-2016, attorney for appellants engaged and produced another counsel, who requested for adjournment.
Request refused. Respondent No,1 also appeared, but respondents were proceeded ex-parte on the previous date, i.e,, on 17-05-2016. So, I had to go through the file on my own.
4. It is not disputed that the suit is for suit property on the ground of inheritance. It is also not disputed that plaintiff Akbar Khan is son of Mst. Hajira and Mst. Hajira is daughter of Ghulam Mohammad. The table showing pedigree of appellants/plaintiffs clearly shows that Mr. Ghulam, the ancestor of appellants/plaintiffs, had two sons, Khedo and Noormad. Khedo had his son Ghulam Mohammad, father of Mst. Hajira, while Noormad had his son Mirmad. Mirmad had a son Rozimad and Rozimad died issueless. Respondents/defendants are also descendants of Mr. Ghulam Mohammad. Once it is admitted that parties to the case are legal heirs of Mr. Ghulam Mohammad.
The question arises that how the suit property went in the possession of respondents/defendants instead of proper partition between the parties. So, in my opinion, the defense of respondents/defendants attains the real importance. It is also not disputed that the suit property is inclusive of share of Mr. Rozimad, as he died issueless, and his property naturally came in possession of Mr. Ghulam Mohammad or the defendants, who are admittedly co-sharers of appellants/plaintiffs and Mr. Ghulam Mohammad is admittedly grandfather of the parties. In this connection, para No,5 of parawise written statement is very important, wherein, respondents/defendants have embodied their defense. Respondents/defendants .Have averred that Ghulam Mohammad, admitted grandfather of the parties, transferred his properties in the name of respondents/defendants Nos.1 and 2. Endorsement to that effect was made in the revenue papers. In these circumstances, I am of the confirmed view that title of appellants/ plaintiffs to the suit property is not disputed and burden of proof has shifted to respondents/defendants to prove that Mr. Ghulam Mohammad, grandfather of the parties, correctly transferred suit properties to respondents/defendants Nos.1 and 2. There is no evidence showing any such transfer except the revenue record which is never admissible in evidence.
5. The second aspect of the case is that learned District Judge has based his findings on the question that Mr. Rozimad died after the death of Mst. Hajira. In the opinion of learned District Judge, Mst. Hajira cannot be accepted as a legal heir of Rozimad. In this connection, the learned District Judge has omitted to describe that defendants are heirs of Ali Mohammad, Mst. Fatimbi and Mst. Banu, son and daughters of Ghulam Mohammad. So, the question for determination before the learned District Judge was not of death of Mst. Hajira or death of B Rozimad, but was the only question of transfer of 'suit property to respondents/defendants Nos.1 and 2. Record does not show that whether Ali Mohammad son of Ghulam Mohammad, Mst. Fatimbi daughter of Ghulam Mohammad and Mst. Banu daughter of Ghulam Mohammad also died before or after Mr. Rozimad.
In the case in hand, in view of its peculiar circumstances, the only question for determination is transfer of properties of Ghulam Mohammad, inclusive of property of Mr. Rozimad. Yet another very important aspect of the case is that B appellants/plaintiffs seek their shari share in the suit properties and not beyond that. The shari share of the appellants/plaintiffs has correctly been determined as 1/5th which comes 8 kanals.
6. I, therefore, allow this appeal throughout, set aside impugned judgment/order of learned District Judge and uphold the judgment/decree dated 15-11-2012 of the learned Civil Judge, but with slight modification described in para No,5 above. Accordingly. This file be consigned to record.