HAIDER ALI KHAN, J. This single judgment shall dispose of the instant revision petition as well as the connected revision petition bearing C.R No. 827-P/2005 as both the revisions arise from one judgment dated 01.4.2005 of the learned Additional District Judge/Izafi Zilla Qazi, Dir Upper at Wari whereby appeal of the present petitioners against the judgment and decree dated 01.4.2004 of the learned Civil Judge/Illaqa Qazi, Wari has been partially accepted.
2. Precise and relevant facts of the case are that the present petitioners/plaintiffs filed a suit for declaration, possession and perpetual injunction on the basis of inheritance against the respondents/defendants in respect of the suit property, detail given in separate list attached with the plaint.
' In response to the plaint of the petitioners/plaintiffs respondents Nos.1 to 5, 9/defendants filed their joint written statement whereas respondent No.10 contested the suit by filing his separate written statement. The trial Court framed necessary issues on the basis of divergent pleadings on which the parties adduced their respective. Evidence. Thereafter, vide judgment and decree dated 01.4.2004, the trial Court dismissed the suit of the petitioners with costs. Being aggrieved, the petitioners/plaintiffs preferred appeal before the appellate Court which was partially allowed and suit of the petitioners/plaintiffs was partially decreed to the extent of 2/12 share against the respondents Nps.1 to 5 and 8 to 10 whereas rest of the suit was dismissed. Feeling discontent, the present petitioners/plaintiffs have filed the instant revision petition whereas the respondents No.1 to 5 have filed the connected -C.R No.827-P/2005, which are being disposed of through this single judgment.
3. Arguments heard and record perused.
4. According to pleadings and facts on the record, stance of the petitioners/plaintiffs is that the petitioners/plaintiffs and respondents Nos.1 to 7/defendants are cousins inter se and are legal heirs of their common predecessor-in-interest namely Naimatullah Khan (late); the suit property and the property in possession of respondents Nos.6 and 7/defendants were the ownership of late Naimatullah Khan, which on his death, devolved upon his three sons namely Shehzada (father of the petitioners/plaintiffs), Amroz Khan (father of respondents Nos.1 to 5) and Munda Khan (predecessor of respondents Nos. 6, 7). During, family settlement, three shares were made of the entire inherited property out of which two shares were jointly given to fathers of the petitioners/ plaintiffs and respondents Nos.1 to 5/ defendants whereas the third share was given to Munda Khan, predecessor of respondents Nos.6 and 7. The petitioners/plaintiffs have averred that they are entitled to their half/shari share in the inherited property jointly owned by them and respondents Nos.1 to 5.
' Conversely, stance of the respondents/defendants Nos.1 to 5 is that the suit property devolved upon them 60/61 years back as inheritance of their father and they sold out a pail thereof to respondent No.9 some 30 years ago whereas 19 paces property remained in their possession. The respondents Nos.1 to 5 and 9 have further averred that they have made improvements in their respective lands and the petitioners/plaintiffs have no concern therewith.
' Respondent No.10/defendant has filed his separate written statement and averred that he is bona fide purchaser of 1-1/2 Paisa Shamilat land which sale transaction was carried out in the year 1982 and since then no one including the petitioners/plaintiffs made any objection in respect of the property in his possession.
' Perusal of the record shows that the plaintiffs/petitioners have mentioned three sons of the common predecessor Naimatullah Khan namely Shehzada, Amroz Khan and Munda Khan but according to the evidence available on the record, late Naimatullah Khan had a fourth son as well namely Ghorija who died issueless. Record also shows that Amroz Khan and Ghorija were real brothers inter se whereas Shehzada and Munda Khan were their step-brothers. It is evident from the statements of the PWs especially of PW-2 that late Naimatullah Khan had partitioned his lands during his lifetime among his four sons named above. The petitioners/plaintiffs have averred in the plaint that the respondents Nos.1 to 5 have carried out transactions with respondents Nos.9 and 10 and PW-2 has admitted in his statement that the land namely Jabba, which was sold out to respondent No.9, was previously mire in nature and the same was later on made cultivable by making improvements therein. Similarly, the respondents/defendants produced Muhammad Rehman (DW-3) who stated that they had purchased most of the disputed property from respondents Nos.1 to 5 some 30 years back. In light of the above referred evidence available on the record, it is 'evident that late Naimatullah Khan had partitioned his lands among his four sons and as such there is not any property to be jointly owned by petitioners and respondents Nos.1 to 5. It is also evident from the statements of the aforementioned witnesses that most of the disputed property had been sold out by the respondents as sole owners thereof to respondents Nos.9 and 10 who have improved the same at their own expense. There is no evidence on the record'to show that father of the petitioners/plaintiffs raised any objection to the partition carried out by their father nor the petitioners have objected to sale and improvements carried out in the disputed property. Thus, the petitioners/plaintiffs have failed to prove through convincing evidence that there is any joint share of their late father in the suit property.
5. Admittedly, Ghorija, who died issueless, was one of the sons of late Naimatullah Khan, common predecessor of the parties but the petitioners/plaintiffs have not mentioned his name in the plaint.
It means that the petitioners/plaintiffs have no knowledge of LRs of their common predecessor and similarly they are unaware of the detail of the entire inherited property. No doubt, late Ghorija was real brother of Amroz Khan, father of respondents Nos.1 to 5, and in case of any inheritance left by late Ghorija, only Amroz Khan, being his real brother, is entitled to his inheritance under Sharia law and Munda Khan and Shehzada, being step brothers, are not entitled to the same. Hence, the petitioners/ plaintiffs are not entitled to any shari share in the inheritance of Ghorija, if any.
6. Record also shows that attorney of the plaintiffs appeared before the Court as PW-1 and stated that his age at the time of recording his statement was 40 years whereas according to his statement fathers of the parties had died prior to his birth. There is no doubt that the parties are the 3rd generation of the predecessor-in-interest namely Naimatullah Khan and according to the evidence partition amongst his sons was carried out 40/50 years ago. The predecessors of the parties did not challenge the said partition during their lifetime meaning thereby that sons of late Naimatullah Khan were satisfied with the partition carried out by their late father. It is also on the record that some of the shares were alienated by the respondents in favour of respondents Nos.9 and 10 about 25/30 years ago who have improved upon their purchased lands which fact has been admitted by the petitioners/plaintiffs in their evidence. From the conduct of the petitioners/plaintiffs it can be inferred that they were fully aware of the above development but they intentionally remained silent the same and did not assert themselves at the proper time.
Similarly, law of limitation is not to be brushed aside in case of claim on the basis of inheritance.
The petitioners/plaintiffs by their own conduct have shown their acquiescence in the respondents/ defendants title to the suit property and by their own conduct allowed them to deal with the same as exclusive owners. Hence, suit of the petitioners/plaintiffs is hopelessly time-barred. Reliance in this regard can be placed on PLD 2011 SC 657 and PLD 2014 SC 167.
7. Record also shows that the .Petitioners/plaintiffs have claimed their share in Shamilat land falling in 36 villages but owners in possession of those lands have not been impleaded as party in the suit.
Thus, on this ground too, suit of the petitioners/plaintiffs is bad and no decree can be passed in their favour in respect of the disputed Shamilat property. Reliance is placed on PLD 2013 (Lahore)
234.
8. In view of what has been discussed above, the learned trial Court has properly scrutinized the evidence and rightly non-suited the petitioners/plaintiffs through a well reasoned judgment.
Therefore, the instant revision petition, being devoid of merits, is dismissed whereas the connected revision petition bearing C.R No.827-P/2005 is allowed. Consequently, judgment and decree dated 01.4.2005 of the learned appellate Court is set aside and judgment and decree of the learned trial Court dated 01.4.2004 is maintained with no order as to costs.