MUJAHID MUST AQEEM AHMED, J.:- Through instant revision petition filed in terms of Section 115 C.P.C. successors-in-interest of Allah Bukhsh, defendant (hereinafter to be called, the petitioners) have assailed judgments and decrees dated 29.2.2012 passed by learned Civil Judge, Taunsa Sharif, Distt. D.G. Khan whereby suit of respondent No.1 was decreed and dated 25.1.2016 passed by learned Addl. Distt. Judge, Taunsa Sharif whereby appeal of the petitioners was dismissed af firming the decision of learned trial Court.
2. Brief but admitted facts of the case are that Sardar , predecessor-in- interest/father of Allah Bukhsh (predecessor- in-interest of present petitioners), Mst. Bakhtawar , (respondent No.1) and Mst. Jannatan (predecessor-in-interest of respondents No. 2 to 4) (who are brother and sisters inter se), owned agriculture land in two Mauzas i.e. Bohar (21 kanals and 1 marla, subject-matter of present litigation) and Mauza Mepal of Tehsil Taunsa Sharif of Distt. D.G.
Khan. On the death of said Sardar muta tion of inheritance No. 2581 (Ex.P .5) with regard to the land situated in Mauza Bohar was attested on 21.3.1940 in favour of Allah Bukhsh, defendant (since dead and represented by legal heirs) excluding his sisters Mst. Bakhtawar (plaintif f/here-in-after to be called the respondent) and Mst. Jannatan (predecessor-in-interest of proforma respondents No. 2 to 4). It may be mentioned here that by another mutation No. 349 (Ex.P .6) attested on 20.6.2007 revenue estate of said Sardar situated in Mauza Mepal devolved upon all the legal heirs (referred supra). In this backdrop on 2.7.2005 the respondent filed suit for declaration to the effect that she and her real sister Mst. Jannata n were entitled to inherit revenue estate of their father Sardar situated in "Mauza Bohar " and impugned mutation of inheritance No. 2581 attested on 21.3.1940 was against facts and law and ineffective upon their rights. The suit was vehemently contested by Allah Bukhsh, defendant by submitting written statement and divergent pleadings of the parties led the trial Court to frame following issues:
1. Whether the plaintiff is owner in possession of the suit property and the defendants have no concern with the same? OPP .
2. Whether the entries in the revenue record are against the facts, void, false and ineffective upon the rights of the plaintiff? OPP .
3. Whether the suit is time barred? OPD.
4. Whether the defendant No.1 has incurred Rs.two lacs on development and as such he is entitled to receive the same in case the suit is decreed against him? OPD.
5. Whether the plaintiff has no cause of action to bring this suit? OPD.
6. Whether the plaintiff is stopped by her words and conduct to bring this suit? OPD.
7. Whether the value of suit for the purposes of court fee and jurisdiction has wrongly been fixed? OPD.
8. Relief.
3. In order to prove their case, both parties led their respective oral as well as documentary evidence. At the conclusion of trial, after recording evidence and hearing arguments on behalf of the parties, learned Civil Judge decreed the suit of the respondent. Feeling dissatisfied with the judgment and decree of learned trial Court, the petitioners assailed the same by way of appeal which was dismissed by a learned Addl. Distt. Judge Taunsa Sharif, affirming the judgment of learned trial Court, as noted above. Hence this petition.
4. Learned counsel for the petitioners has vehemently contended that the suit filed by the respondent was badly time barred but this legal aspect was not properly appreciated by the Courts below . Further contends that impugned mutation was sanctioned on 21.3.1940 i.e. 65 years ago and as such presumption of truth is attached to the said document under the law. Learned counsel further contends that at the time of attestation of mutation, mother and paternal uncle of the plaintif f/respondent were present on her behalf and with their consent impugned mutation had been sanctioned but the impugned judgments have been passed by both the learned courts below on the basis of mis-reading and non-read ing of evidence. Learned counsel further contended that learned Ist. appellate Court did not decide appeal issue-wise as such the impugned judgment of learned Addl. Distt. Judge is liable to be set aside. Lastly learned coun sel has argued that the petitioners have spent a huge amount for levelling the suit land to convert it in cultivable condition and are thus entitled for compensation for such improvement.
5. Learned counsel for respondent No. 1 has supported the impugned judgments.
6. Arguments heard and record gone through with the assistance of learned counsel for the parties.
7. Perusal of record shows that case of the respondent/plaintif f was that she was owner in possession of suit land being successor-in-interest of Sardar and that she had not relinquished her right to inherit and that the defendant/petitioner has deprived the plaintiff of inheritance in collusion with revenue staff. The plaintiff claimed that she was minor at the time of attestation of mutation, as such was not competent to enter into any transaction/contract or relinquish her right in inheritance and thus the whole affair was manoeuvred. Defence of the petitioners through written statement and subsequent evidence was that at the time of opening of succession of late Sardar, predecessor-in-interest of the parties, the respondent/plaintiff had relinquished her right in favour of her brother Allah Bukhsh, upon which mutation No. 2581 was attested in his favour, as such she subsequently cannot claim her right in inheritance which she had already validly surrendered. Thus pleadings of the parties depict that whole case of the respondent hinges on the point that at the time of attestation of mutation No. 2581 dated 21.3.1940 she was minor as such under the law she was not competent/capable to relinquish her right in favour of Allah Bukhsh and that the impugned mutation has been obtained on the basis of fraud. Learned trial Court has framed Issues No. 1 and 2 to resolve this controversy and onus to prove these issues was on the plaintiff. The plaintiff produced her husband Ahmad Bukhsh as her special attorney as P.W.1 and also produced documents Exs. P.1 to P.6 including impugned mutation Ex.P.5. From perusal of impugned mutation (Ex.P.5) it was very much established, vide note of Revenue Patwari, that when inheritance of Sardar was devolved upon his legal heirs, Mst. Bakhtawar was minor. It was never case of the petitioners that Mst. Bakhtawar was not daughter of Sardar nor it was even remotely suggested to P.W.1 that Mst. Bakhtawar was not minor at the time of attestation of impugned mutation. Contrary to this, Ghulam Ilyas, one of the petitioners while appearing as DW.1 conceded it correct that Bakhtawar plaintiff and Mst. Jannatan are the daughters of Sardar Khan. A careful analysis of impugned mutation (Ex.P.5) reveals that it was incorporated by the Patwari in Column of Remarks that Mst. Bukhtawar was a minor at that time. This note of the Patwari was never challenged by the petitioners/defendant as being incorrect. Perusal of whole record shows that it was never defence of the defendant/petitioners that Mst. Bakhtawar was not minor at the time of attestation of impugned mutation. Thus the plaintiff has succeeded to prove that at the time of opening of succession of Sardar/attestation of impugned mutation, she was minor and that being successor-in-interest of Sardar, was legally entitled to inherit his legacy and as such was co-owner/co-sharer of the suit land. Having thus established she was, under the law, not competent to make any transaction or enter into an agreement or even to make consent for relinquishment of her right and thus any transaction made by her or on her behalf against her interest is liable to be declared void ab initio and struck down. Thus question of limitation does not arise in case of setting aside a void order for having no legal worth in eye of law. Impugned mutation was void ab initio for having been fraudulently entered and attested on behalf of minor during her minority. She alongwith her other sister Mst. Jannatan was deprived from the revenue estate of the deceased on the ground that they have relinquished their right of inheritance in favour of the petitioners. Admittedly the respondent did not appear before the Revenue Officer at the time of attestation of impugned mutation. Therefore, even if her mother or paternal uncle had made any consenting statement on her behalf, the same has no binding effect upon rights of the respondent. The Hon'ble Supreme Court while dealing with the matter of inheritance under Mohammadan Law vide celebrated judgment reported as Ghulam Ali and two others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) laid down the following principle.
"As soon as an owner dies, succession to his property opens. There is no State intervention or clergy's intervention needed for the passing of the title immediately, to the heirs. Thus it is obvious, that a Muslim's estate legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the estate by an intermediary is unknown to Islamic Law of Inheritance as compared to other systems. Thus there being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction. It is so notwithstanding whether they (the heirs) like it, want it, abhor it, or shun it. It is the public policy of Islamic law. It is only when the property has thus vested in the heir after the succession opens, that he or she can alienate it in lawful manner ."
It was further observed as under: "Recognition and enforcement of law of inheritance by the State agencies including the Courts, vis--vis, the female heirs, is a matter of public policy in Islam.
Dealing with the relinquishment of right of inheritance by female heirs, it was held in the said salutary judgment as under: "Relinquishment of her inheritance by a female co-sharer without consideration-- Such relinquishment having been declared void being against public policy under Section 23 of the Contract Act cannot be revived and given life merely because it suffered from another serious infirmity and such infirmity could not be overcome by a resort to exceptions given in S.25 of the Act. Presumption would be that relinquishment was not on account of natural love but on account of social constraints."
Dictum has thus been set up that: "Relinquishment of right of inheritance is against public policy and that scope of right of inheritance of females is so wide and their thrust so strong that it is duty of courts to protect and enforce them even if the legislative action for this purpose of protection in accordance with Islamic jurisprudence is yet to take its own time."
8. While elaborating the question of limitation, the Apex Court in a recent precedent reported as Khan Muhammad through L.Rs. and others v . Mst. Khatoon Bibi and others (2017 SCMR 1476 ) observed as under: "Where a right of inheritance was claimed, the claimant became co-owner/co-sharer of the property left by the predecessor alongwith others the moment the predecessor died. Entry of mutations of inheritance was only meant for updating the revenue record and for fiscal purposes. No limitation would run against the co-sharer .
Keeping in view the above dictum it can safely be held that Mst. Bakhtawar being minor at the time of attestation of impugned mutation was not competent to relinquish her share in favour of the predecessor in interest of petitioners and thus was admittedly a co-owner/co-sharer and impugned mutation of inheritance being ineffective qua her right of inheritance, no limitation runs for filing a suit for declaration by her and the courts below have rightly held so. In view of above noticed facts coupled with the fact that respondent alongwith others has inherited revenue estate of deceased in other Mauza vide mutation Ex.P.6 and the case law, the contention of learned counsel for the petitioners that the suit is time barred, is devoid of merits and is discarded.
9. Learned counsel for the petitioner has further maintained that predecessor-in-inte rest of the petitioners has spent Rs.2,00,000/- to level and make the suit land cultivable but this plea of the petitio ners was not attended to by the courts below . In this context he has referred statement of Ghulam Ilyas, DW.1. This witness was not even born at the time of opening succession of Sardar , predecessor of the parties and as such his version regarding improvement of status of suit property and their entitlement to recover the same is just hearsay not supported by any independent witness. Even otherwise Allah Bukhsh, has cultivated the suit property and as such received its usufruct for such a long period. As such claim for improvement is unjustified and the petitioners are not entitled for any such compensation particularly when the respondents had not been given their "Shari" share of inheritance in revenue estate of their father .
10. Contention of learned counsel for the petitioners that the impugned judgments and decrees are based on misreading and non-reading of evidence or that the findings of learned appellate Court have not been recorded issue-wise are devoid of merits and no valid ground whatsoever has been shown for interference in the concurrent judgments and decrees passed by learned courts below which are based on proper appreciation of evidence. While dealing with the revisional jurisdiction of the High Court under Section 115 of the C.P.C. the Hon'ble Supreme Court in case reported as Ghulam Qadir and others v. Sh. Abdul Wadood and others (PLD 2016 SC 712 ) held as under: "The jurisdiction of an appellate court can be invoked by a person who believes that the subordinate court has erred in law or in fact whilst passing the judgment/order under appeal. On the other hand a revision also involves an exercise of reconsideration/re-examination of the judgment/ order of a subordinate court but only to the extent that it falls squarely within the parameters of Section 115 of the C.P.C. Although the matter of revision is not a mere privilege afforded to the aggrieved person but also a right this revisional power remains discretionary.
The function of the revisional court is to ensure the proper administration of justice through the proper exercise of jurisdiction, procedural accuracy, correctness of the decision and legality thereof by the subordinate Court. If the revisional court is satisfied that the subordinate court has not erred in this regard and the decision is sound in law, then it will not reverse or modify the decision solely on the basis that the subordinate court could have reached a different conclusion on merits."
In this regard principle declared in Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469 ) may also be referred.
11. In view of what has been notice and discussed above, in the light of case law referred supra I find that the impugned judgments passed by learned Court below are advancing cause of justice and do not suffer from mis- reading or non-reading of evidence resulting in material illegality or irregularity .
12. In sequel to above discussion, I do not find any justification to interfere in the impugned judgments of the Courts below . Resultantly , this petition being devoid of merits is dismissed with costs.