' This revision petition by Asghar Ali, defendant, is directed against the judgment and decree of District Judge Swabi dated 17-7-1991 whereby the plaintiff's appeal was accepted, the judgment and decree of the trial Judge dimissing the plaintiff/respondent's suit was set aside and the plaintiff's suit decreed as prayed for in the plaint.
2. It may be briefly stated that Shahzullah respondent No,1 herein, brought the suit, of which the present revision petition has arisen, against Mst. Mehr Jan and four others in the Court of Civil Judge Swabi for declaration to the effect that he was the owner in possession of land measuring 2 Kanals 18/15-16 Marlas out of land measuring 4 Kanal 2 Marlas bearing Khasra Nos,1665 and 1666 situated in Pabeni, Tehsil Swabi through sale and inheritance and that the entries in the Revenue Record made against the plaintiff's interest and that the subsequent Mutation No,5366 dated 8-6- 1972, Mutation No,5367 dated 21-7-1992, the registered sale-deed dated 16-9-1980 and the entry of Mutation No,5994 are all illegal and ineffective on his rights. It was alleged that Khairullah, the plaintiffs father was the owner in Mouza Pabeni on whose death in the year 1972 his inheritance devolved on the plaintiff as Mst. Gulab Jan, his wife, Mst. Musalmano and Taj Mahala, his daughters, all had pre-deceased him. Although his father died in the year 1972 the inheritance mutation was attested on 26-8-1981. Cause of action accrued to the plaintiff when defendant No,3 started collecting building material on the suit land for raising construction over it and when questioned, claimed to have purchased the land from its owner. On perusal of the Revenue Record, it transpired that defendants 1 to 3 had got attested the inheritance Mutation No,5366 on 8-6-1972 of Khairullah deceased to the extent of 2/3 share in the name of the plaintiff and remaining 1/3 in the name of defendants 1 and 2. Through Mutation No,5367 attested on 21-7-1972, part of the said land was shown to have been sold on behalf of the plaintiff in favour of defendant No,3. That through a registered sale-deed rest of the defendants are shown to have sold their share in his favour.
3. Defendants 2, 3 and 5 in their separate written statements resisted the plaintiffs suit. It was stated by defendant No,2 that she was joint owner with Khairullah in the suit land and on the death of Khairullah his inheritance mutation was correctly attested in favour of all his legal heiRs, She denied that her predecessor-in-interest has sold any land in favour of defendant No,3 and denied the receipt of sale consideration for the same. She challenged the correctness of Mutation Nos, 4902, 5367 and 5366. Defendant No,3 stated that on the death of Khairullah in the year 1972 his inheritance mutation was attested in favour of the plaintiff and defendants 1 and 2. A part of the land was inadvertently left out from the inheritance mutation, therefore, regarding it another Mutation No,6049 was entered on 26-8-1981 and collusively the names of defendants 1 and 2 were omitted from the inheritance. That he purchased 2 Kanals 5 Marlas of land vide mutation No,5367 attested on 21-7-1972 for Rs,1,700. That Mutation No,5367 was correctly attested and duly incorporated in the Revenue Record. That the plaintiff's appeal and revision against the attestation of the same mutation were dismissed. Defendant No,1 sold 7 Marlas of land in his favour through registered sale-deed dated 16-9-1980 and on its basis Mutation No,5994 was entered which is pending attestation. Defendant No,5 has stated that Khairullah was owner of the land which devolved on plaintiff and defendants 1 and 2. Mutation No,6049 attested on 26-8-1981 was challenged to be collusive, fraudulent and ineffective on her rights. She admitted her having sold her share in favour of defendant No,3 for consideration.
4. On the pleadings of the parties, the learned trial Judge framed as many as eleven issues on which both the parties led their evidence. The learned Civil Judge Swabi on appraisal of the parties' evidence held plaintiff and defendants 1 and 2 to be the legal heirs of Khairullah deceased. Sale Mutation No,5367 dated 21-7-1972 on behalf of the plaintiff and in favour of defendant. No,3 was found valid and binding and correctly incorporated in the Jamabandi. The transfers made by defendants 1, 2 and 5 in favour of defendant No,3 were also held genuine and proved. The issues regarding limitation, adverse possession and estoppel were decided against the plaintiff and in favour of the defendants. The plaintiff's suit was accordingly dismissed with special costs of Rs,10,000. Aggrieved by the judgment and decree, the plaintiff went in appeal in the Court of District Judge who on re-appraisal of the entire evidence reversed the finding of the trial Court and held that Mst. Taj Mahala had predeceased her father, therefore, defendants 1 and 2, who are her daughters, were not to inherit the suit property, therefore Mutation No,5366 was attested against the injunctions of Islam and Shariah. Sale Mutation No,5367, referred to above, was also declared illegal as it was attested at the place other than the Mahal in which the land was situated and payment of sale considei ation was also not proved. On such finding the judgment and decree of the trial Judge were set aside and the plaintiff's suit for declaration and possession decreed as prayed for in the plaint on 17-7-1991. The judgment and decree in appeal are challenged in the present revision petition.
5. Learned counsel for the parties have been heard and record of the case perused.
' Admittedly the property in dispute belonged to Khairullah whose pedigree-table is as under:-- ' Khairullah Shahzullah Mst. Musalmano Mst. Taj Mahala Mst. Gulab Jan
(son) (daughter) (daughter) (widow)
' Mst. Musalmano and Mst. Taj Mahala, daughters and Mst. Gulab Jan wife of Khairullah had predeceased him, therefore, his inheritance Mutation No,5366 was attested in favour of Shahzullah, his son, and Mst. Mehr Jan and Mst. Shamim, his grand-daughters on 8-6-1972. It transpired from the record that some of his landed property was omitted from the inheritance mutation, therefore, in respect thereof Mutation No,6049 was attested on 26-8-1981 but by mistake exclusively in the name of Shahzullah omitting the names of the aforementioned grand-daughteRs,
6. According to the plaintiff, his father died somewhere in the year 1972 and his inheritance mutation No,5366 was attested on 8-6-1972 but Mst. Mehr Jan and Mst. Shamim, his grand- daughters' names were wrongly entered therein as his heiRs, It was further stated that Mutation No,6049 was correctly attested on 26-8-1981 exclusively in his name. Copy of the mutation is Exh.PW 2/5. Reliance was also placed on inheritance mutation No,5902 of Mst. Gulab Jan which was exclusively attested in his favour and in favour of Khairullah. Mst. Musalmano and Mst. Taj Mahala did not inherit Mst. Gulab Jan. He also challenged the sale made by his father in favour of defendant No,3 in his lifetime to be of no effect on his rights.
7. The question whether defendants 1 and 2 were entitled to inherit Khairullah is not difficult to be resolved. Section 4 of the Muslim Family Law Ordinance of 1961 on the subject is reproduced as follows:-- "In the event of death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent of the share which such son or daughter, as the case may be, would have received if alive."
8. The learned trial Judge was, therefore, perfectly justified in holding that on the death of Khairullah, Mst. Mehr Jan and Mst. Shamim, being the children of Mst. Taj Mahala, the predeceased daughter of Khairullah, were entitled to the share which Mst. Taj Mahala would have received if she had survived on the death of Khairullah. The finding of the learned trial Judge was,. Therefore, in consonance of the law governing the inheritance in question for the present. The learned District Judge had no jurisdiction to declare section 4 of the Ordinance null, void, inoperative and against the injunctions of Islam. Such finding is, therefore, liable to be set aside and that of the trial Court to be restored.
9. Regarding the sales in favour of defendant No,3, the learned trial Judge has elaborately dealt with the entire evidence led by the parties and on its basis has correctly arrived at the conclusion that these were validly made and have been correctly incorporated in the Revenue Record through various mutations in accordance with law. Sufficient evidence has been led to prove the sales by the plaintiff which evidence has been ignored by the learned District Judge on wrong assumption that the thumb-impressions and signatures of the vendor have not been obtained at the time of attestation of mutation under section 42 of the West Pakistan Land Revenue Act, 1967 which provides for taking thumbimpression/signature of the identifying witnesses. Abdul Wadood (D.W.2)
Office Kanungo examined in connection with Mutation No,5367 of sale stated that Dilbar Shah, Said Rauf and Tajbar Khan, Lambardars had identified the vendor at the time of attestation of the mutations. Shah Jamal (D.W.5) stated that he was in possession of the suit land on behalf of defendant No,3 since it was sold in his favour. Such being the case, there was overwhelming evidence on the record in support of the findings given by the trial Judge on the issue pertaining to the sales challenged by the plaintiff. As already pointed out, these findings have erroneously been set aside in appeal, accordingly, this revision petition is accepted, the judgment and order of the learned District Judge is set D aside and those of the trial Court restored. Parties are left to bear their own costs.