1. Through the appeal in hand the validity of judgment and decree of the District Judge dated 29.03.2017, has been called in question, whereby, appeal against the judgment and decree of the trial Court dated 18.03.2016 has been dismissed.
2. Succinctly, the facts giving rise to the appeal in hand are that the plaintiffs-respondents herein filed a suit for declaration alongwith perpetual injunction against the defendants-appellants herein in the Court of Civil Judge Bagh for cancellation of Mutation No. 25 dated 03.03.1999, claiming therein that on the demise of grandfather of Plaintiffs No. 1 to 10 and paternal grandfather of Plaintiffs No. 11 & 12 Bahadur Khan his legacy was inherited to his legal heirs, whereas the plaintiffs are legal heirs of aforesaid legal. Bahadur Khan. It is averred that after the demise of Bahadur Khan, Gulzara Begum got married with Atta Muhammad from the said wedlock, Sher Akbar Khan was born and mother of Plaintiffs No. 11, 12 Gulzara Begum was died on 03.12.1991, whereas Bahadur Bi was died on 14.12.1975. It is claimed that after the death of Bahadur Khan his legacy was to be inherited in favour of Gulzara Begum, Sher Akbar Khan and Sikandar Khan, whereas, the same was fraudulently and secretly got registered the Mutation No. 25 out of Khewat No. 16, 17 in their favour which being against the law and fact is liable to be quashed, hence, the decree be issued in favour of the plaintiffs as prayed for.
3. Suit was resisted through filing written statement, whereby, claim of the plaintiffs-respondents herein was refuted on factual and legal grounds.
4. Learned trial Court out of pleadings of the parties framed issues and after recording the evidence of the parties and hearing the counsel for the parties decreed the suit vide judgment and decree dated 18.03.2016.
5. Dissatisfied from the aforesaid judgment and decree of the trial Judge, the defendants-appellants herein challenged the same before the District Judge. Learned District. Judge after due proceedings dismissed the appeal of the appellants herein vide judgment and decree impugned herein.
6. Arguments heard.
7. Both the counsel for the parties almost reiterated the version taken in their pleadings before the trial Court, hence for the sake of brevity the same needs not to be reproduced.
8. From the perusal of judgment and decree of both the Courts below, it depicts that though both the Courts below are unanimous that initially Bahadar Bi was wedded with Bahadar Khan and out of this wedlock Sikandar Khan and Gulzara Begum, the predecessor of plaintiffs-respondents herein were born and subsequently, after demise of Bahadur Khan, Behadur Bi was wedded with Mahad and out of this wedlock single son Sher Akbar Khan was born and Sher Akbar Khan was not entitled to record mutation of Bahadur Khan an Bandar Bi in his favour but the main claim of the appellants herein is that the mutation which was mutated in favour of Sher Akbar Khan was of legacy of Atta Muhammad and the same was not of Bahadur Khan, the said question in the light of revenue record has not been addressed. Moreover, this observation of learned Civil Judge that "howsoever, inheritance was, the same may be devoted to Bahadur Bi and after her demise, that must be devoted to her sons and daughters" appears to be recorded without evaluating the evidence of the parties.
9. It is an admitted position that initially Bahadur Bi was wedded with Bahadur Khan and out of this wedlock Sikandar Khan and Gulzara Begum were born and after the demise of Bahadur Khan, Bahadur Bi came within the Nikaha of Atte Muhammad and out of this wedlock Sher Akbar was born, son question of devotion of legacy of the father of offspring of both sets was of prime importance as offspring of Bahadur Khan though obtained the share of their mother coming from the legacy of Bahadur Bi but under law, they do not claim the same of legacy of Atta Muhammad, similarly. Sher Akbar cannot claim the share from the legacy of Bahadur Khan and it is the question which has not been addressed in the light of reasons recorded by the civil Judge and learned District Judge has also tried to get rid of entering into roots of the lis and observation has been recorded telegraphically.
10. In view of above, it can safely be observed that learned trial Court, while deciding the lis has not addressed the main claim of the parties regarding devolution of inheritance in their favour and without diving deep has recorded his finding, hence, the judgment and decrees of both the Courts.
11. Below are hereby, set aside and the matter is remanded to the learned trial Judge with the direction to decide the Us in the Light of observation recorded hereinabove.