MIRZA VIQAS RAUF , J. This civil revision arises out of judgment and decree dated 10 of June, 2009, whereby the learned District Judge, Nankana Sahib, while allowing the appeal filed by the respondents set aside the judgment and decree dated 11 of December , 2008 passed by the learned Senior Civil Judge, Nankana Sahib.
2. Precisely the facts necessary for adjudication of instant petition are that the respondents instituted a suit for declaration and permanent injunction asserting therein that Barkat Ali son of Nabi Bakhash was owner of suit land who died in the year 1952, being issueless. As per averments contained in the plaint, Barkat Ali survived his brother namely Imam Din, who was predecessor-in-interest of the respondents/plaintif fs. It is asserted that on death of Barkat Ali, inheritance mutation No.1 dated 28 of March, 1954 was sanctioned in favour of Imam Din to the extent of half share and remaining half share was given to the petitioner (defendant), being son of Babu i.e. pre deceased brother of Barkat Ali, which is illegal and ineffective upon their rights. The suit was contested by the petitioner as well as Province of Punjab, respondent No.9.
From the divergent pleadings of the parties, following issues were framed :- ISSUES
1. Whether at the time of death of Barkat Ali deceased, the father of the defendant Ghulam Rasool namely one Babu was not alive so defendant Ghulam Rasool as nephew of the deceased could not inherit the property of deceased Barkat Ali?
OPP
2. Whether the inheritance mutations of deceased Barkat Ali are illegal and void and are of no legal effects qua the rights of the plaintif fs in the suit property? OPP
3. Whether Ghulam Rasool is not and entitled legal heir of the said deceased? OPP
4. Whether the plaintif fs are owners in possession of the suit property? OPP
5. If the above issues are proved, then whether the plaintif f are entitled to the decree for declaration and permanent injunction as prayed for by them in the prayer of plaint? OPP
6. Whether this court has no jurisdiction to try this suit? OPDth th th
7. Whether the suit is bad for mis joinder of parties? OPD
8. Whether suit is time barred? OPD
9. Whether the suit is not maintainable in its present form? OPD
10. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? If so, what is its correct valuation for both the purposes? OPD
11. Whether the plaintif fs have no cause of action and locus standi to file this suit? OPD
12. Whether the plaintif fs are estopped by their words and conduct from filing this suit? OPD
13. Whether the suit is malafide? OPD
14. Whether the disputed mutations cannot be challenged in the civil court? OPD
15. Whether the defendants are entitled to get special costs? If so, to what extent? OPD
16. Relief.
After framing of issues, the learned trial court recorded the evidence of both the sides and finally dismissed the suit with costs vide judgment and decree dated 11 of December , 2008. The respondents No.1 to 8, being dissatisfied from the judgment and decree passed by the learned Senior Civil Judge preferred an appeal before the learned District Judge, Nankana Sahib. The appeal was allowed vide judgment and decree dated 10 of June, 2009 and resultantly suit filed by the respondents was decreed, hence this petition.
3. Learned counsel for the petitioner submitted that suit at its inception was barred by time and it was rightly dismissed by the learned trial court. He added that a well-reasoned judgment passed by the learned Senior Civil Judge was interfered with by the learned lower Appellate Court in an illegal and unlawful manner. Learned counsel contended that impugned judgment and decree is the result of gross misreading and non-reading of evidence. He maintained that mutation of inheritance was rightly sanctioned in favour of the petitioner , being the son of Babu. In support of his contentions, learned counsel relied upon "ATTA MUHAMMAD versus MAULA BAKHSH and others" (2007 SCMR 1446 ) and CIVIL APPEALS NO.972 AND 1060 OF 2009 and CIVIL PETITION NO.1523 OF 2009 "UNITED BANK LIMITED and others versus NOOR-UN-NISA and others" ( 2015 SCMR 380 ).
4. Conversely , learned counsel for the respondents, while defending the impugned judgment submitted that the learned trial court, while non-suiting the respondent s had erred in law. He added that appeal was rightly allowed by the learned District Judge, while exercising its appellate jurisdiction and duly appraising the evidence. It is contended that limitation cannot be pleaded in the instant matter , as the respondents were deprived of their due share in inheritance.
5. I have heard learned counsels for both the sides at considerable length and also perused the record with their assistance.
6. The matter in issue pertains to the legacy left by Barkat Ali son of Nabi Bakhash. It is an admitted fact that Nabi Bakhash survived three sons namely Imam Din, Babu and Barkat Ali. The petitioner is son of Babu whereas respondents are successors-in-interest of Imam Din. There is no dispute interse parties with regard to relationship. It is also an admitted position that Barkat Ali died issueless. The stance of the respondents (plaintif fs) is that Barkat Ali died in the year 1952, leaving behind Imam Din his brother , who died in the year 1986, whereas Babu, father of the petitioner (defendant) died at the time of partition of sub-continent and prior to the death of Barkat Ali. The moot question thus before this Court is as to "whether Babu was alive at the time of death of Barkat Ali or not."
7. When record is examined in this perspec tive, it appears that though the petitioner (defendant) asserted in his written statement that mutation of inheritance was incorporated in accordance with law but while perusing corresponding reply of para No.3 of the plaint, it becomes clear that there is only an evasive denial on behalf of the petitioner (defendant) with regard to date of death of Babu. As there was specific assertion in the plaint that father of petitioner died during partition of sub-continent and prior to the death of Barkat Ali, so it was incumbent upon the petitioner/defendant to deny this fact specifically in his written statement but only an evasive denial was made in the following manner :- {{URDU TEXT}} Law is well established that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted as envisaged under Order VIII Rule 5 of The Code of Civil Procedure (V of 1908). Guidance in this respect, if needed can be sought from "GHULAMth th RASOOL through L.Rs. and others versus MUHAMMAD HUSSAIN and others" (PLD 2011 Supreme Court 119) and "BASHIR AHMED and 3 others versus MUHAMMAD ASLAM and 6 others" (2003 SCMR 1864) .
8. There is yet another important aspect, it is by now well recognized principle of civil dispensation of justice that evidence can only be led with regard to a fact which is specially asserted in the pleadings and no such evidence is admissible which is beyond the pleadings. When in response to a specific assertion in the plaint, the petitioner did not plead the material fact with regard to date of death of Babu, he is precluded to lead any evidence to this effect. Reference in this context, if needed, can be made to "COMBINED INVESTMENT (PVT.) LTD. versus WALI BHAI and others" (PLD 2016 Supreme Court 730), "MUHAMMAD IQBAL versus MEHBOOB ALAM" (2015 SCMR 21) and "MUHAMMAD NAWAZ alias NA WAZA and others versus MEMBER JUDICIAL BOARD OF REVENUE and others" (2014 SCMR 914).
9. It is established on the record that Barkat Ali died in the year 1952, whereas as per own statement of the petitioner (DW3), Babu died in the year 1947, so no doubt left that Barkat Ali survived only Imam Din. Mutation of inheritance was tendered in evidence as Exhibit-P1 which shows that it was sanctioned in equal shares in favour of Imam Din and petitioner .
Had Babu being alive at the time of death of Barkat Ali, the inheritance mutation would have been sanctioned in his favour alongwith Imam Din. The petitioner is the nephew of Barkat Ali and is remote in relation s to the deceased as compared to Imam Din, who was his brother thus on the principle of exclusion, the petitioner was not entitled to any share in the estate left by the deceased as nearer in degree excludes the more remote. Reliance in this regard can be placed on "SAADULLAH and others versus Mst. GULBANDA and others" (2014 SCMR 1205 ) and "WARIS ALI and others versus RASOOLAN BIBI" (PLD 2014 Supreme Court 779) .
10. Now while adverting to the question of limitation, it is observed that there is no cavil that it is the bounden duty of every court of law to take notice of the question of limitation even if it is not raised by any of the party as held in CIVIL APPEALS NO.972 AND 1060 OF 2009 and CIVIL PETITION NO.1523 OF 2009 "UNITED BANK LIMITED and others versus NOOR-UN-NISA and others" (2015 SCMR 380) but record reveals that question of limitation was adverted to by both the courts below and to this effect issue No.8 was framed which has been concurrently decided against the petitioner .
Learned counsel though, while reiterating his contentions to this effect relied upon "ATTA MUHAMMAD versus MAULA BAKHSH and others" (2007 SCMR 1446 ) but in my humble view the principles laid down by the Hon'ble Apex Court in the said case are founded on different facts. In the instant case, the mutation of inheritance was wrongly sanctioned depriving the respondents from their legal share and in such an eventuality , the respondents being co-sharers would be deemed to be in constructive possession of the property and their rights arising out of inheritance cannot be defeated on account of limitation. While forming this view, I am fortified with the judgments of Hon'ble Supreme Court of Pakistan in the cases of "KHAIR DIN versus Mst. SALAMAN and others" (PLD 2002 Supreme Court 677) and "MUHAMMAD ANW AR and 2 others versus KHUDA YAR and 25 others" ( 2008 SCMR 905 ).
11. The above principles were further reiterated by the Hon'ble Apex Court in the case of "BAJA through L.Rs. and others versus Mst. BAKHAN and others" (2015 SCMR 1704). Even this Court in the case of "MOHSIN KHAN and 3 others versus AHMAD ALI and 2 others" (PLD 2004 Lahore 1), while dealing with the preposition held that the limitation would not apply to enforcement of right of inheritance in estate of deceased predecessor .
12. Through there are conflicting views of both the Courts below and this Court while exercising revisional jurisdiction is supposed to make comparative analysis of both the judgments in order to determine their validity on the touchstones of Section 115 of The Code of Civil Procedure (V of 1908) but in the matter of giving preference to the judgments of learned lower Courts while analyzing the same in exercise of revisional jurisdiction, the preference and regard is always given to the findings of the leaned lower Appellate Court, if those are not suffering from any legal infirmity . Reference in this respect can safely be made to the case of "MUHAMMAD NAWAZ through L.Rs versus Haji MUHAMMAD BARAN KHAN through L.Rs. and others" ( 2013 SCMR 1300 ). Relevant extract from the same is reproduced herein below:- "12........... We have also taken into consideration the judgment of the Appellate Court which is based on proper appraisal of evidence on record and the findings of the Appellate Court are to be preferred as it has been held by this Court in the cases of MadanGopal and others vsMaranBepari and others (PLD 1969 SC 617) that if the findings of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding." This view also finds support from the cases ofMuhammad Shafi and others vs. Sultan Mahmood and others (2010 SCMR 827)
The above view also finds support from the cases of "AMJAD IKRAM versus Mst. ASIY A KAUSAR and 2 others" (2015 SCMR 1),"MUHAMMAD HAFEEZ and another versus DISTRICT JUDGE, KARACHI EAST and another" (2008 SCMR 398) and "Mst. SAEEDA through her son Muhammad Abid versus MUHAMMAD NAEEM and 3 others" (PLD 2013 Sindh 39 ).
13. As a sequel of above discussion it can safely be held that the learned District Judge, Nankana Sahib has rightly interfered with the judgment passed by the learned Senior Civil Judge, Nankana Sahib. The petitioner has failed to point out any illegality or material irregularity in the judgment passed by the learned District Judge, Nankana Sahib, warranting interference by this Court in exercise of revisional jurisdiction. The instant petition thus fails and is dismissed with no order as to costs.