SYED ARSHAD ALI, J.----Through the instant revision petition, the petitioners have challenged the consolidated judgment and decree dated 11.11.2013 of the learned Additional District Judge-II/ Izafi Zila Qazi Buner at Dagger , whereby the appeal of the petitioners and cross objection of the respondent against the judgment and decree of the trial Court dated 15.6.2013 were dismissed.
2. Brief but essential facts of the case are that respondent Ayaat Shah had filed a Suit No. 168/1 on 31.10.201 1 whereby he claimed to be owner and in possession of 1/4th share in the suit properties mentioned in the plaint and had also challenged fard-badr' dated 11.12.2009 whereby his share was reduced to 18th in the suit property .
Similarly , the present petitioners through Suit No. 32/1 filed on 01.12.201 1 had challenged the entries in the revenue record on the basis of title Deeds No.488/2 dated 06.03.1945, title deed No. 193 dated 04.8.1956, title deed No. 384 dated 05.02.1963 and a decision of the Ex-Ruler No.324 dated 18.6.1964. On the basis of these deeds the petitioners claimed exclusive ownership of the property measuring 53 kanals 18 marlas comprised of khasra Nos. 5013 to 5016 and 5017 to 5063. Both the suits were consolidated and the parties were provided the opportunity to produce their respective evidence. On closure of evidence, the learned trial Court decreed the suit of the respondent Ayaat Shah, whereas the suit of the present petitioners was partially decreed to the extent of Deed No.193 dated 04.08.1956 and Deed No.3 84 dated 05.02.1963. The petitioners had challenged the said judgment and decree through appeal whereas the respondent had also preferred cross objection, both the appeal and cross objection were dismissed by the appeal Court through impugned judgment and decree dated 11.11.2013, hence the present petition.
3. Arguments heard and record of the case was perused with valuable assistance of the learned counsel for the parties.
4. All the parties to the proceedings inter se are related and the descendants of a common predecessor namely Dewan Shah. The said Dewan Shah had three (3) sons Yaqoob Shah, Mamoot Shah and Bahader Shah. Bahader Shah had died in 1945 leaving behind Ayaat Shah as the only legal heir. Yaqoob Shah, predecessor-in-interest of the present petitioners died in the year 1987 whereas the 3rd son was Mamoot Shah, who died in the year 7002.
The dispute essentially relates to the legacy of Mamoot Shah because he was issueless and both the parties claim to be entitled to his legacy .
5. The inheritance mutation of Mamoot Shah bearing No. 1965 was attested on 22.11.2002, whereby Ali Haider Shah, Yadad Shah, Laiq Shah sons of Yaqoob Shah and Ayaat Shah son of Bahad er Shah were succeeded to his legacy in equal shares. The shares allotted through this inheritance mutation has not been disputed by any party , therefore, according to this mutation all the petitioners have inherited 3/4th shares in the legacy of Mamoot Shah whereas the respondent had inherited 1/4th shares in the said legacy of Mamoot Shah in Khata Nos.204, 824, 833, 834, 835, 916, 917 and 918. However , the grievances of the parties started when according to the present petitioners the said shares were not truly reflected in the revenue record and the shares of the respondent Ayaat Shah was incorrectly mentioned as 1/7th in the record of rights/periodical record for the year 2006-07. This issue was raised by the petitioners before the revenue hierarchy and the revenue hierarchy accepted the said claim by preparing the fard-badr' dated 11.12.2009, however , the same was not finally attested by the revenue officer. These entries in the fard-badr' were challenged by the respondent, whereas the present petitioners had challenged entries in the revenue record on the basis of some title deeds, as stated above.
6. It is also worth mentioning that the legacy of Dewan Shah also remained disputed in earlier round of litigation under the erstwhile PATA Regulation betw een the same parties i.e. predecessor of the petitioners, Mamoot Shah and respondent. The said dispute ended on a compromise between the parties, according to which, the respondent Ayaat Shah had surrendered his shares in the suit property comprised of Khasra Nos. 472, 473, 475, 476, 477, 478, 479, 480, 699, 4099, 5012, 5013, 5014, 5015 and 5016 land measuring 96 kanals 7 marlas in favour of Yaqoob Shah, the predecessor of the petitioners and Mamoot Shah in equal shares. Similarly , the predecessor of the present petitioners Yaqoob Shah and Mamoot Shah had surrendered their shares in favour of the respondent Ayaat Shah in the suit property comprised of Khasra Nos.715, 834, 718 and 720 land measuring 17 kanals 16 marlas. The said compromise was accepted by the then learned trial Court vide dated 24.4.1983.
7. The claim of the present petitioners before the trial Court was that on the basis of deed No. 488/2 dated 06.3.1945, deed No. 193 dated 04.8 1956, deed No. 384 dated 05.2.1963 and a decision of the Ex-Ruler of Swat No. 324 dated 18.6.1964 land measuring 53 kanals 18 marlas comprised of khasra Nos. 5013 to 5016 and 5017 to 5063 was exclusively owned of their predecessor Yaqoob Shah and as such the entries in the revenue record in the name of deceased Mamoot Shah were illegal. However , the said claim of the present petitioners was rightly discarded by both the Courts below because the predecessor of the present petitioners and Mamoot Shah deceased had jointly filed a suit before the civil Court/Deputy Commissioner wherein they both had claimed the title of the suit property on the basis of aforesaid deeds No.488/2 dated 06.03.1945, 581 dated 29.9.1964 and 377 dated 05.01.1966 and it was specifically mentioned in the plaint that both the partie s i.e. Yaqoob Shah and Mamoot Shah are owners and in possession of the suit property measuring 96 kanals 7 marlas in equal shares. The said suit was contested by the respondents and during the proceedings a compromise was effected between the parties, wherein certain khasra numbers as stated above were allotted exclusively to Yaqoob Shah and Mamoot Shah, whereas the other khasra numbers as stated above were allotted/surrendered in favour of Ayaat Shah and the said compromise was approved by the competent forum vide order dated 24.4.1983.
8. Therefore, when the predecessor of the plaintif fs/petitioners had admitted before a competent Court of law that suit property was jointly owned by them then his legal heirs cannot subsequently turn around by saying that the suit property was exclusively owned by his/their predecessor under the principles of estoppel and acquiescence.
This principle was elaborately affirmed by the august Supreme Court of Pakistan in "Nazim-ud-Din's case reported as 2016 SCMR 24":- "This latter document having been executed by Mst. Jano has all along been in her knowledge and obviously the appellants being her successors would have had knowledge of the same and it is not disputed that the document was a result of any fraud and misrepresentation. Still this document was never assailed by the appellants by seeking its cancellation in terms of section 39 of the Specific Relief Act, 1877. They are now estopped from claiming any share in the property over and above 7/124. It may be reiterated that as the document was in their knowledge throughout and was left outstanding, thus for all intents and purposes, the rule of acquiescence, waiver and estoppel shall be attracted to their position and they are precluded from denying the co- ownership of the respondents to the extent of 17/24 in the property in question."
9. However , the respondent Ayaat Shah had admitted the claim of the present petitioners in khasra No. 480, which was purchased by their predecessor Yaqoob Shah through deed No. 193 dated 04.8.1956 and deed No. 384 dated 05.02.1963, hence, the claim of the plaintif fs/petitioners stands admitted to the extent of khasra No. 480 in respect of land measuring 13 kanals 18 marlas.
10. Therefore, the only issue left for determination of this Court is the legacy of deceased Mamoot Shah. In this regard, the inheritance Mutation No.1965 was attested on 22.11.2002, whereby the legacy of Mamoot Shah deceased had devolved upon the presen t petitioners to the extent of 3/4th shares, whereas to the extent of 1/4th shares had devolved upon the respondent Ayaat Shah. However , the perusal of the fard-jamabandi for the year 2006/2007 reflects that Ayaat Shah has been allotted 1/7th shares in Khata No. 266 whereas 1/4th shares in Khata 'Nos. 1035 and 452 etc.
11. Needless to mention that Ayaat Shah is only entitled to 1/4th shares in the legacy of Mamoot Shah and not in entire khata because upon the death of Mamoot Shah the khatajaat under dispute were jointly owned by Yaqoob Shah, the predecessor of the present petitioners and Mamoot Shah equally and as stated above the shares of Ayaat Shah were already bifurcated and he did not own any share in the disputed khataas where Yaqoob Shah and Mamoot Shah were recorded as owners of the property in equal shares. Thus, the 1/4th share of Ayaat Shah will be only in the legacy of Mamoot Shah and not in entire khata, therefore, in the entire khata the shares of Ayaat Shah have thus become 1/8 and not 1/7. This anomaly was recommended to be removed through fard-badr' dated 11.12.2009, however , both the Courts below have overlooked this issue. Therefore, by partly allowing this petition, the judgments and decrees of both the lower courts are modified as following:-
1. Khasra No. 480 to the extent of land measuring 13 kanals 18 marlas shall remain in exclusive ownership of the present petitioners on the basis of deeds No. 384 dated 05.02.1963 and 193 dated 04.8.1956, which was admitted by the respondent.
2. The disputed khatajaat, which are reflected in mutation. No. 165 the petitioners are declared to be entitled to the legacy of Mamoot Shah to the extent of 3/4th share whereas the respondent shall be entitled to 1/4th share, hence in the entire joint Khatajaat where Yaqoob Shah and Mamoot Shah are recorded owners, the share of the petitioners shall be 7/8th and the share of the respondent shall be 1/8th. The revenue record be corrected accordingly .
11. With these observations this petition is disposed of accordingly .