' This is a revision petition against the order dated 23-2-1971 passed by the Additional Commissioner, Khairpur, whereby he accepted the appeal of the respondents in respect of the landed property left by deceased Khera Jat in Taluka Moro, District Nawabshah.
2. The facts of the case are that Mukhtiarkar, Moro, decided the Fatikhatabadal of deceased Khera Jat vide entry No, 56 of the disputed cases register Deh Sann and attested entry No, 112, dated 12-8- 1965 in V. F. VII according to which the landed property held by the deceased was mutated in the names of the following heirs :-
(1) Siddik son of the deceased. 0-4-8
(2) Muhammad Arif son of deceased. 0-4-8
(3) Ashiq Hussain. Do 0-4-8
(4) Mst. Bhagan widow. Do 0-2-0
4. The respondents preferred an appeal to the Deputy Collector, Naushero Feroze, claiming to be the heirs, which was upheld by the Deputy Collector, vide his order dated 20-6-1969 and fresh mutation was entered in the names of the following legal heirs :- {{TABLE}}
(1) Mst. Bhagan Wife. 0-1-0
(ii) Mst. Mehran Wife. 0-1-0 Subho Sadiq
(iv) Muhammad Arif
(v) Ashiq Hussain
(vi) Manzoor Ahmad Shakoor Ahmad - All 5 sons to get equal shares.
4. Mst. Bhagan and her sons preferred an appeal to the Commissioner, Khairpur, who vide his order dated 30-9-1969 remanded the case to the Deputy Collector, Naushahro Feroze, for fresh decision after hearing both the parties as they had not been given personal hearing last time.
5. The Assistant Commissioner heard the parties and vide his order dated 9-10-1970 held that it was not established that the respondent Mst. Mehrunnisa was wife and Manzoor Ahmed and Shakoor Ahmed sons of deccased Khera Jat. The respondents preferred second appeal to the Additional Commissioner, Khairpur, who vide the impugned order, held that the respondents were also heirs of the deceased.
6. I beard the counsels for the parties on 19-5-1971. They argued the following points :- A-Counsel for the petitioners :
(i) Khera Jat had landed property in Deh Sann Taluka Moro. He died in the year 1964. The Khata of the land was mutated in favour of the petitioners in the year 1965, but the respondents preferred an appeal against the Fotikhatabadal in 1967.
Mst. Mehrunnisa claimed to be the wedded wife of Khera. She has claimed the property left by Khera in Sind only although he had property in Punjab area as well. The authorities of Punjab in District Lahore had held that Mst. Mehrunnisa was not the wedded wife of Khera and she was only his keep (The copy of Dakhil Kharij in respect of the landed property held by the deceased in District Lahore bearing order dated 6-4-1965 of the A C.
0. Lahore produced by counsel). According to the statements of the Lambardars and the order of A.
C.
0., Mst. Mehrunnisa was alreadymarried to one Ahmed Din, who was confined in Jail and Mst.
Mehrunnisa was abducted by one Rustam Rind. Her husband Ahmed Din had applied to the Chairman of Town Committee, Raja Jang, Tehsil Kasur, for restoration of his wife and the Chairman had written a letter to that effect to the Chairman of the Union Council, Habiri, Taluka Moro, for getting him his wife back, (copy of the application and letter produced by the counsel). Since her husband Ahmed Din was alive, question of her getting married to Khera did not arise.
(iii) The entries in birth register indicating that the sons of Mst. Mehrunnisa were sons of Khera were false and fabricated entries as was evident from page 4 of the order, dated 9-10-1970 of the Assistant Commissioner, Moro.
E-Counsel for the respondents :
(1) Mst. Mehrunnisa was wedded wife of Khera and she had two sons from him. The entries in the birth register were genuine and supported the claim that the two sons were from Khera. The birth registers were to be maintained by the Union. Councils according to rules and genuineness of the entries could not be doubted. This fact was supported by paragraph 7 of the order dated 23-2-1971 of the Additional Commissioner, Khairpur.
(ii) According to the entries in Dakhal Kharij (copies produced) Mst. Mehrunnisa was real wife and her two sons were real sons of Khera.
' Mst. Mehrunnisa was not a party before the Punjab authorities where the question of inheritance of the deceased Khera was decided in her absence and that decision did not bind her."
7. Lastly the counsels, for both the parties conceded that the question of determination of inheritance was the question to be decided by the civil Court and could not be decided in summary proceeding by the revenue authorities. The counsel for the petitioners urged that the respondents should go to the civil Court to get the question of the legitimacy of being a wife of deceased and her two sons being his children decided in the civil Court while the counsel for the respondents contended that the impugned order was in their favour and that petitioners should go to the civil Court to get declaration that Mst. Mehrunnisa was not the legitimate wife of the deceased and her two sons were not legitimate sons of the deceased.
8. I have considered the arguments of the parties. According to original Fotikhatabadal decided by the Mukhtiarkar, Mst. Mehrunnisa was not allowed any share in the property. The Fotikhatabadal was decided on the basis of statements recorded by the Mukhtiarlcar but later on change in mutation was ordered by the Deputy Collector on the basis report No, 1005, dated 20-5-1969 of Mukhtiarkar More, in which he said that the statements of two persons, Mubarik Ali son of Abdullah Jat and Ghulam Rasool son of Muhammad Islam Shaikh had been recorded from Village Pabjo, according to which Khera had two wives named Mst. Bhagan and Mst. Mehrunnisa. It is not reflected in the report whether the report was made on the basis of the spot enquiry or it was based merely on the statements of the two persons mentioned above. It is not proper to take decision on the statements of just any two persons as it can result in serious mis-. Carriage of justice. The Additional Commissioner, Khairpur, had set aside order dated 9-10-1970 of the Assistant Commissioner, Moro also on the basis of report No, 1005, dated 20-5-1969 of Mukhtiarkar Moro. Mr. Sain Bux, Assistant Commissioner, Moro, bad held on the spot enquiry and taken pains to go on into the question thoroughly on the spot after visiting site and he came to the conclusion that the marriage of Mst. Mehrunnisa with deceased Khera was not proved. It appears from the order of the Additional Commissioner, Khairpur, that he has given more weight to the report of the Mukhtiarkar and has not given sufficient consideration to the enquiry and on the site interrogation of both the parties done by the superior officer of the rank of Assistant Commissioner and has set aside his order on that account. There is no doubt that it is a complicated matter to determine as to whether Mst. Mehrunnisa is legally wedded wife or at all a wife of Khera deceased and in view of the facts A mentioned by the Assistant Commissioner, Moro, in his order dated! 9-10-1970 it is not advisable to set aside his order. The proper course' would have been to leave the aggrieved party for going to the civil Court to seek redress.
9. In view of the above, I accept the revision petition and set aside the order dated 23-2-1971 passed by the Additional Commissioner, Khairpur in the case, with the result that the order dated 9-10-1970 passed by the Assistant Commissioner, Moro, is restored. The aggrieved party, may, if it likes, seek remedy in civil Court.