' ALI AKBAR QURESHI, J.---This single judgment will dispose of two cases i.e, C.R.Nos.1705 and 1706 of 2005, being arisen out of the same judgment and decree.
2. This civil revision is directed against the judgment and decree dated 28.04.2005 and 16.12.2000, whereby through a consolidated judgment, suit titled as Muhammad Ilyas etc. v. Khursheed Bibi etc. Filed by the petitioners was dismissed, whereas the suit titled Khursheed Bibi etc. v.
Muhammad Ilyas etc. Filed by the respondents was decreed.
3. This case has a long history and question of inheritance is 'involved, therefore, it is necessary to give brief facts of the case. The petitioners Muhammad Ilyas, Muhammad Siddique, sons of Jannatay Bibi and Bahishfan, daughters of Dina, filed a suit for possession Malkana titled as Muhammad Ilyas etc. v Khushi Muhammad etc. Regarding the suit land measuring 324 Kanal 5 Marla on the ground, that predecessor of the parties namely Hasal was the original owner of the suit land and on his death, inheritance mutation No,797 dated 09.08.1951, was sanctioned in favour of Baksha for half share and remaining half share in favour at' Jannatay and Bahishtan, daughters of Dina, who was son of Balaki; when Baksha died, his inheritance mutation No,846 dated 17.03.1952 was sanctioned in favour of Jannatay and Bahishtan; when Jannatay died, her property was devolved upon her sons Muhammad Ilyas and Muhammad .Siddique; that the land in question is common and is being cultivated by the tenants who are paying the share of produce to defendants/respondents Nos.1 to 12 and by this way, the petitioners are being deprived of their share out of the suit land and lastly submitted, that they time and again asked the respondents Nos.1 to 12 to admit the petitioners as owners of the suit land to the extent of their shares and hand over the possession, which was refused.
' Muhammad Din, Muhammad Shafi and Jamal Din alias Jamala also filed a rival suit for possession Malkana qua the suit land measuring 258 Kanal 17-1/2 Marla contendings therein, that Hasal son of Yousaf 'was owner of the suit land measuring 161 Marla 7-1/2 Marla and on his demise, inheritance mutation No,797 dated 09.08.1951 was sanctioned in favour of one Baksha son of Balaki and Mst. Jannatay and Bahishtan in equal share. Lastly prayed, that the afore-referred inheritance mutation was wrongly entered, as Dina, the father of defendants Nos.1 and 2, had already died and by this way, Baksha son of Balaki was only legal heir of Hasal son of Yousaf and respondents Nos.1 and 2 are not entitled to get anything from the legacy of Hasal (deceased). Further submitted, that Baksha who was himself owner of the land measuring 258 Kanal 7-1/2 Marla when died, his inheritance mutation No,846 dated 17.03.1952 was sanctioned in favour of respondents Nos.1 and 2 which was in fact against the law, because Dina, the father of defendants Nos.1 and 2, had already died. Lastly prayed, that respondents Nos.1 and 2 have been asked many a times to give possession Malkana of the suit land to the rival petitioners being co-sharer but the respondents Nos.1 and 2 refused to accede the genuine demand of the petitioners.
4. As per the record, the controversy involved in this matter is regarding the inheritance of one Hasal, predecessor of the parties and owner of suit land. The respondents are claiming themselves owner of the suit property on the basis of two inheritance mutations Nos.797 and 846 of suit land entered on the demise of Hasal son of Yousaf and Baksha son of Balaki, respectively, whereas the plaintiffs of rival suit being collaterals have claimed the inheritance of aforesaid deceased persons and prayed, that the aforementioned inheritance mutations be declared against the law.
' Both the suits were consolidated in compliance of the order passed by the learned Additional District Judge, who remanded the matter to the learned trial court. The learned trial court framed consolidated issues, recorded the evidence of the parties and finally dismissed the suit titled Muhammad Ryas etc. v. Khursheed Bibi etc. And decreed the suit titled Khursheed Bibi etc. v.
Muhammad Ilyas etc. ' Being. Aggrieved with the judgment and decree passed by the learned trial court, two appeals were filed by the petitioners, which were dismissed by the learned appellate court after hearing arguments of both the parties, hence, this revision petition.
5. Heard. Record perused.
6. The parties to the case filed two suits claiming themselves the legal heirs of Hasal son of Yousaf, predecessor of the parties and status of the inheritance Mutation No,797 dated 09.08.1951 and Mutation No,846 dated 17.03.1952. Both the parties while filing the suit submitted pedigree table and details of the suit land which have not been disputed by any of the parties, therefore, it is to be seen who is entitled to inherit the suit land.
7. It would be appropriate to firstly deal with the inheritance of Hasal son of Yousaf who as per the death certificate (Exh.P.7) died on 15.12.1950. This fact was stated by Bahishtan, who appeared as witness and stated that Hasal died about two years prior to the partition of the subcontinent whereas Baksha died 5/6 years after the death of Hasal son of Yousaf, therefore, it is clear, that Baksha died after Hasal son of Yousaf and this fact is also supported by the death certificate (Exh.P.9), which is available in the record, wherein the date of death of Baksha son of Balaki is entered as 15.11.1951.
8. Admittedly, Hasal son of Yousaf died issueless and at the time of death of Hasal, Baksha son of Balaki, one of the collaterals of Hasal, was alive whereas Dina son of Balaki had died in the year 1916, this fact is mentioned in his inheritance mutation. Bahishtan while appearing as witness also stated, that she was 60 years old when her father Dina, son of Balaki, was died.
9. Jannatay and Bahishtan Bibi, the predecessor of the petitioners Muhammad Ilyas etc. Were the daughters of said Dina son of Balaki as recorded by the learned courts below and admittedly Jannatay and Bahishtan Bibi are not the lineal female descendants of Kamal, who was the common great ancestral of them and that of Baksha son of Balaki as well as Nasal son of Yousaf.
Baksha son of Balaki was only alive lineal male descendant of Kamal son of Amin at the time of death of Hasal son of Yousaf.
10. The learned courts below and especially the learned appellate court, after putting great efforts and analyzing the provisions of Muhammadan Law, has reached to the conclusion, that Baksha was the only male descendant at the time of death of Hasal.
11. Law of inheritance gives three classes of legal heirs i.e, sharer, residuaries and distant kindred..
The pedigree table is admitted by the parties, therefore, according to the pedigree table, none of the petitioners, being sharer are entitled to anything out the legacy of Hasal or Baksha because they do not fall in the category of sharer.
12. As regard the residuaries, which has been defined in Muhammadan Law; that full paternal uncles, full paternal uncles's sons sons and their remote male descendants in the like order how low so ever comes in the class pertaining to descendants of true grandfather how high so ever of the deceased and by this way, the petitioners fall in the category of residuaries of legal heirs of deceased Hasal son of Yousaf.
13. The learned appellate court, after consulting the record and the law applicable on the case, finally came to the conclusion, that the plaintiffs of the suit titled Muhammad Din etc. v. Jannatay Bibi etc. Are the residuaries whereas Jannatay and Bahishtan, the predecessors of plaintiffs in a suit titled Muhammad Ilyas etc. v. Khusi Muhammad etc. Are the distant kindred of both the deceased i.e, Hasal son of Yousaf and Baksha son of Balaki.
14. According to the mandate of Muhammadan Law, in the presence of residuaries, distant kindred cannot inherit anything. Even otherwise it is settled principle of Islamic Law, that nearer in decree excludes the more remote, therefore, as .Per the pedigree table and the law, Jannatay Bibi and Bahisthan Bibi are not only distant kindred of Baksha son of Balaki but also remoter in decree.
15. In these circumstances, 'Bahishtan and Jannatay being distant kindred were not entitled anything from the legacy of Hasal son of Yousaf being distant kindred in the presence of residuary, deceased Baksha son of Balaki, the inheritance mutation No,797 dated 09.08.1951 of deceased Hasal son of Yousaf which was sanctioned in favour of Baksha son of Balaki and Bahishtan and Jannatay but as per law Jannatay and Bahisthan being distant kindred are not entitled to inherit anything from the property left by deceased Hasal, as whole of the property left by Hasal son of Yousaf is to be inherited by Baksha son of Balaki being residuaries.
' In the same manners and principle, the property left by Baksha son of Balaki was to be inherited by Muhammad Din, Qaim Din and Jamal Din alias Jamala and inheritance mutation No,846 dated .17.03.1952 was not correctly entered in the names of Bahishtan and Jannatay, being distant kindred.
16. Even otherwise, it is well established principle of Muhammadan Law, the moment Muslim owner dies, succession of estate left by Muslim owner immediately opens and devolves upon the legal heirs, meaning thereby when Hasal died, his inheritance was immediately devolved upon Baksha being sole residuary and when Baksha son of Balaki died, in the same manner, his succession opened and devolved upon the heirs i.e, Muhammad Din, Qaim Din and Jamal Din and by this way all the above persons became owners of the property left by deceased predecessor, to the extent of their shares. Both the impugned mutations Nos.797 and 846 were not attested and sanctioned in accordance with law, therefore, both mutations would not affect the rights of the heirs who inherited the property.
17. Learned counsel for the petitioners vehemently argued, that the respondents while filing the suit did not claim the declaration and by this way, the suit is hopelessly barred by time.
18. It has already been observed, that the moment Muslim owner of the property dies, immediately succession opens and devolves upon the heirs and the Muslim heirs become the owner of the property to the .Extent of their share. Admittedly, in this case, the property was cultivated by the tenants and they were giving the share of produce to the respondents, therefore, the arguments advanced by learned counsel for the petitioners have no substance or force.
19. As regard the limitation, the Hon'ble Supreme Court of Pakistan in plethora of judgments, has observed, that in the matter of inheritance, no length of' time would extinguish the right of inheritance and bar of limitation is not applicable. Reliance is placed on Mst. Bushra Bibi and 2 others v. Muhammad Sharif and 23 others [2002 CLC 587 (Lahore)], Muhammad lqbal and others v.
Allah- Bachaya and 18 others (2005 SCM R 1447), Atta Muhammad v. Maula Baksh and others (2007 SCM R 1446), Allah .Yar v. Mst. Zahoor Elahi and 5 others [2011 YLR 2099 (Lahore)], Mst. Gohar Khanum and others v. Mst. Jamila Jan and others (2014 SCM R 801) and Mahmood Shah v Syed Khalid Hussain Shah and others (2015 SCM R 869).
20. To rebut the arguments of learned counsel for the respondents, the learned counsel for the petitioners has relied upon Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others (PLD 2014 SC 167), but the facts of the aforesaid case are entirely different, therefore, the same is not applicable in the instant case.
21. Although the learned counsel for the petitioners argued the case at length but could not point out any jurisdictional defect, legal infirmity, illegality or irregularity with the judgment questioned .Herein, therefore, there is hardly any chance to interfere with the well worded concurrent findings of the learned courts below. I am fortified by the esteemed judgments of the Hon'ble Supreme Court of Pakistan, in the case of Cantonment Board through Executive Officer Cantt. Board Rawalpindi v. Ikhlag Ahmed and others (2014 SCM R 161), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCM R 1469) and Noor Muhammad and others v. Mst. Azmat-e-Bibi (2012 SCM R 1373).
22. Resultantly, this revision petition, having no force, is dismissed with no order as to costs.