' This is a revision petition against the order, dated 8-4-1971 passed by the Additional Commissioner. Hyderabad Division whereby he had upheld revision petition of the respondent regarding inheritance of property left by deceased Faqir Muhammad.
2. The facts of the case briefly stated are Faqir Muhammad grandfather of the respondent owned agriculture S. Nos.. 129 and 145 in Deb 269 Taluka Jamesabad. It it stated that on his death, he left behind the following heirs:-
(1) Mehtabuddin Sons
(2) Nawabdin J
(3) Mst. Noor Bibi Daughter
(4) Mst. Bakbtawar Bibi Wife.
' Out of the above heirs, the entire land held by deceased Faqir Muhammad was mutated exclusively in the name of Mehtabuddin in the year 1914-15. On the death of' Mehtabuddin the same land was mutated in favour of his heirs. The respondent Allahditta preferred an appeal to the Collector somewhere in the year 1961/62 against the mutation of property of Faqir Muhammad exclusively in favour of Mehtabuddin but his appeal was rejected by the Collector, vide his order, dated 18-7-1962. He preferred a revision petition to the Additional Commissioner, Hyderabad, which was dismissed by him, vide his order, dated 4-6-1964. Then he preferred a second revision petition to the B. d. R. And the case was remanded to the Additional Commissioner. Hyderabad, for fresh decision by then Member (Judicial and L. R.) W. P. B.
0. R., vide his order, dated 11-7-1967. Consequently the Additional Commissioner, Hyderabad heard the parties and upheld the appeal of respondent, vide the impugned order on the ground that father of Allahditta had not predeceased Faqir Muhammad and as such he and through him Allahditta were entitled to get share from the land left by deceased Faqir Muhammad. The petitioner has now preferred the present petition against that order.
3. The counsel for the parties were heard at full length and their arguments are reproduced below:-
(a) Counsel for the petitioner :
(1) Fakir Muhammad died in 1915. He was succeeded by Bashir Ahmed. In 1936, Bashir Ahmed died.
Property devolved on female heirs. The present respondent filed a civil suit challenging that after death of Bashir Ahmed the land should have gone to collaterals and females were to get life interests only according to the customs of Jats. His suit was dismissed. The matter is, therefore, res.
Judicata. The same land and the same parties are involved. The civil Court held that the respondent has no right in the land.
(ii) No application for condonation of delay was ever given. The delay is not condoned even on the ground of minority of legal heirs vide PLD 1966 (W. P.) Rev.
114.
(iii) Factual side should not have been gone into by the Revenue Court, vide the following rulings: -
(I) PLD 1963 (W. P.) Rev.
16.
(2) PLD 1963 (W. P.) Rev.
67.
(3) P I., D 1965 (W. P.) Rev.
66.
(4) PLD 1971 Rev.
31.
(iv) The Member, B.O.R. Had, vide the remand order, dated 11-74967 directed the Additional Commissioner to probe thoroughly into the matter and decide the case after determining the fact about the date of death of the father of the petitioner and also his grand-father. The Member, B. O.
R. Did not decide the point in issue. These were mere observations of the Member, B.
0. R. The Additional Commissioner was, therefore, competent to decide the case on any other point urged before him.
(v) The suit of the respondent for possession which included the question of entitlement of the land in dispute in the present petition was dismissed by the civil Court in 1944 and the matter was now res judicata, vide section II of the Civil Procedure Code and no Court is competent to re-open the issue.
(vi) If the respondent was heir of Faqira, he should have filed the suit in 1916 where the inheritance opened. He had to put up all his claims before the civil Court in 1944 on the basis of which he had claimed the land and he is not competent to raise the point that he had not urged one of his claims in respect of the disputed land before the civil Court.
(vii) The land was given to ancestor to the present parties under Act 111 of 1899. Elder son had already 32 Acres of land and he was not allowed any other land. The Mukhtiarkar recommended that the other son may be given 32 acres. From 1915 to 1962 entry was not challenged.
(b) Counsel for the respondent :
(i) The point of limitation could not be considered at this stage. The presumption is that delay had been when the revision was remanded.
(ii) The petitioner admits that father of the respondent was son of Fakir Muhammad and how can son be excluded from inheritance.
(iii) All the points were considered by the Member, B.
0. R. The suit was for possession and it was not for declaration of rights. It was for two blocks only and this revision is for 8 blocks. The Suit has no relevancy in the present case.
(iv) The respondent Is son and has been in continuous possession of the land. The possession of one co-sharer can be the possession of all the sharers.
(v) Fraud had taken place and fraud vitiates the proceedings, vide PLD 1970 Lah.
614.
(vi) The points that the claim of the respondent was time-barred and there was a decree against him were considered by the Member, B.
0. R. But he remanded the case which shows that the delay had been condoned and the decree had been ignored.
(vii) The decree is not relevant to the present case. The suit was not for declaration. The suit adjudicated only the custom of the parties about inheritance. It was in respect of property left by Mehtab.
(viii) The only point on which the case was remanded was whether Nawab Din had pre-deceased his father or otherwise. Nawab Din was son of Faqira and he could not be excluded from inheritance by any authority.
(ix) The counsel for the petitioner had gone beyond the points raised in the petition.
(x) The case was agitated upto the level of B.
0. R. The Member, B.
0. R. Had remanded the case for consideration of specific point whether deceased Fakir Muhammad, father of Nawabdin and Mehtab Din, had died earlier or Nawabdin had died earlier than Fakir Muhammad. The petitioner did not prefer any appeal against that order of the Member, B.
0. R. Nawabdin died 2 years after Fakir Muhammad and he was therefore, entitled to inheritance from the property left by his father. The issue of suit in the civil Court was not raised earlier. The case of the petitioners earlier was that Nawabdin had died earlier than Fakir Muhammad.
4. I have considered the case. Foti Khatabadal of deceased Faqir Muhammad was decided by the Mukhtiarkar, Jamesabad, vide his order, dated 4-1-1915. Allahditta agitated against it in the year 1961-62. He did not agitate the issue of inheritance of his father in the property left by Faqir Munammad in Civil Suit No, 226 of 1943 filed by him in the Court of Sub-Judge, Mirpurkhas in respect of the same property but had put forward his claim over the property as an heir of Bashir Ahmed son of Mehtabdin. Nothing prevented him from agitating claim of his father in the property at that time. The revenue authorities are not expected to go into the cases of inheritance of property after a lapse of 47 years in this case and involve themselves in complicated questions of facts and law in summary proceedings on record-of-right side. Such a question can be agitated in civil Court. There was absolutely no justification for re-opening the inheritance case of Faqir Muhammad after laps of such a long period. The counsel for the respondent argued that the impugned order had to be examined only in the light of the order, dated 11-7-1967 passed by the then Member (Judl. And L. R.) W. P. B.
0. R. And the questions dealt with by the Member, W. P. B 0 R could not be A touched at this stage. I, however, do not agree with his arguments as th order passed by the then Member, B.
0. R. Did not give any specific findings about the point of limitation which question could be raised at any time. It is against the principles of revenue law to open such cases after the period of limitation without proper justification. In view of this position, I uphold the revision petition of Mushtaq Ahmed etc. And direct that the order, dated 4-1-1915 of Mukhtiarkar, Jamesabad in respect of Foti Khatabadal should not be disturbed at this late stage by the Revenue Authorities.
The party aggrieved with that entry can have recourse to civil Court for redress of its grievance, if so advised.
Revision 'accepted.