This is a revision petition against the order dated 26-12-1970 of the Additional Commissioner, Hyderabad, whereby he accepted the appeal of the respondent Khan Muhammad and directed that the photi khatebadal of the landed property left by deceased Chhutto may be made in favour of Khan Muhammad.
2. The facts of the case are that Chhutto son of Ghazi had purchased S. Nos, 28/1, 2 and 54/1 to 4 (10-34 acres) dell Wangi, Taluka Tando Allahyar from the Barrage Department. He was stated to have died in 1964. In 1966, the khata of the land was mutated in favour of Khan Muhammad as his only heir vide order of the Mukhtiarkar at entry No, 51 of the Disputed Cases Register. Mst. Banakh preferred an appeal to the Deputy Collector, Hala, who accepted the same vide his order dated 28-3-1967, and mutated the land in favour of Mst. Banakh only. Khan Muhammad preferred a revision petition to the Additional Commissioner, Hyderabad, which was rejected by him vide his order dated 8-12-1967. He then preferred a second revison petition to the Board of Revenue and the case was remanded back to the Mukhtiarkar by the Member, Board of Revenue, West Pakistan vide this order dated 2-3-1968 for fresh decision after on the spot inquiries. Mukhtiarkar recorded the statements of the parties and passed order dated 20-7-1968 whereby the khata of the land was mutated in favour of Mst. Banakh. The case was again remanded to the Mukhtiarkar by the Additional Deputy Commissioner, Hyderabad, vide his order dated 17-12-1968 for fresh decision as it was observed that Mst. Rani mother of Mst. Banakh was alive and her position may be determined. The Mukhtiarkar reconfirmed his previous order vide his order dated 12-4-1969 and allowed the khata in the name of Mst. Banakh only and held that Mst. Rani was not entitled to any share, Khan Muhammad preferred an appeal to the Extra Assistant Settlement Officer. Hyderabad, which was rejected by him vide his order dated 20-12-1969. He preferred a second appeal to the Additional Commissioner, Hyderabad, which was accepted by him vide the impugned order on the ground that Khan Muhammad come under class of `Residuaries' and Mst. Banakh under the class of 'Distant Kindred' and that residuary would be entitled to inheritance in preference to distant kindred vide section 67 of the Muhammadan Law.
3. The counsel for the petitioners urged the following points:-- (i)The disputed land belonged to Chhutto son of Ghazi. After his death his property devolved upon his son Murad Ali and daughter Mst. Siani and as such his cousin could not get it.
(ii)Mst. Zainab also died. Her share was distributed among his brother Murad AU and sister Siani.
(iii)Mst. Siani died. Siani had one son Ghazi and her share went to Ghazi. Khan Muhammad could not get it as her son was there.
(iv)On death of Murad All his share went to his son Chhutto and Khan Muhammad could not get it.
(v)After death of Chhutto son of Murad Ali his share went to Ghazi.
(vi)Ghazi left behind Mst. Banakh as daughter and Mst. Rani as widow and after death of Ghazi the share of Chhutto son of Murad Ali and Ghazi went to Mst. Banakh and Mst. Rani, and as such Khan Muhammad was not entitled to get the land. The jurisdiction of the civil Court was ousted by section 172 of the Land Revenue Act, 1967 and the Revenue Officer had to decide the issue vide subsection (6) of section 42 of the Act.
4. The counsel for the respondent urged the following points :-- (i)Mst. Rani was not party before the Extra Assistant Settlement Officer or Commissioner and she could not agitate the question now vide PLD 1958 W P (Rev.) 77.
(ii)Legal opinion had been sought by the Additional Commissioner from the Government Pleader who had opined in favour of the respondent. The Extra Assistant Settlement Officer had also taken up the revised stand in his comments to the Additional Commissioner.
(iii) Interference is called for in the revisional stage only if there is any illegality or material irregularity in the case vide PLD 1958 W P (Rev.) 96 and PLD 1959 W P (Rev.) 41.
(v) Mst. Siani, Mst. Zainab were dead during life time of Chhutto son of Ghazi and as such his property was inherited by Murad Ali only. In a proceedings under section 145, Cr. P. C. before Sub- Judge Tando Allahyar, there was admission from Muhammad Saleh Attorney of the petitioners that the entire property of Chhutto had gone to Murad Ali and had Mst. Siani been alive then she would have also been shown as party in the proceedings. On 8-12-67 it was proved before the Additional Commissioner that Mst. Siani had died during lifetime of her father and she could not inherit the property. Family Laws Ordinance came into force in 1961 and the heirs of Mst. Siani would not get benefit of the Ordinance vide PLD 1964 W P (Rev.) 94.
5. I have considered the arguments put forth by the parties and seen the record. The fadts of the case and the position of the inheritance as it stood from time to time has amply been discussed by the Additional Commissioner, Hyderabad in the impugned order. The parties had accepted the geneological tree given by witnesses Bachal and Manik before the Mukhtiarkar, Tando Allahyar.
The claim of Mst. Rani had been rejected by Mukhtiarkar Tando Allahyar vide his order dated 12- 4.1969 and she did not prefer any appeal/revision petition against that order to the Collector or Commissioner. According to the findings of the Additional Commissioner petitioner Mst. Banakh falls under the sixth category of class 4 of distant kindreds and Khan Muhammad falls in the class of residuaries and as such residuary would exclude the distant kindred, vide section 67 of Muhammadan Law. No fresh fact has been brought against the findings. As held in PLD 1958 W P (Rev.) 96 and PLD 1959 W P (Rev.)
41. I do not find any material irregularity or illegality in the impugned order calling for interference A at the revisional stage. Besides it is not the function of the Revenue authorities to go into the complicated questions of inheritance in summary way while deciding mutations and such questions can best be left for determination by the civil Court. In the circumstances. I hold that there is no good ground to interfere with the order pissed by the Additional Commissioner and that there is no force in the revision petition, which is, therefore, dismissed accordingly.
6. The aggrieved party may, if it likes, go to the civil Court and get his inheritance rights determined through that Court.
7. Announced.