' The relevant facts for the decision of this revision petitiion are that respondents filed a suit for declaration to the effect that they are entitled to I/8th and 1/3rd of 7/8 share being widow and daughter of the last owner. It was pleaded that one Fattu owned land measuring 86 Kanals and he died leaving behind Mst. Sharifan, widow, Mst. Manghti, daughter and Abdul Ghaffar, son. It was added that Abdul Ghaffar, son secretly and without the knowledge of the plaintiffs got mutation of inheritance No,1702 attested on 9-12-1965 in his favour. The widow and the daughter of Fattu were excluded from inheritance. The said Abdul Ghaffar proceeded to sell 12 Kanals of land through Mutation No,1686 attested on 17-11-1965 to the petitioners. Thereafter he sold another piece of land measuring 44 Kanals vide Mutation No,1707 attested on 9-12-1965 in favour of the petitioners and respondents No,3 to 5. The suit was contested by the defendants. The Trial Court framed, issued, recorded evidence and after hearing the arguments decreed the suit vide judgment dated 25-6- 1975, which was assailed by the defendants through an appeal before the District Judge, Muzafargarh, 'who dismissed the same vide judgment and decree dated 13-7-1976. The petitioners thereafter, filed the present revision petition, which was admitted to hearing and notices were issued to the respondents, who have appeared'.
2. The learned counsel for the petitioners argued that admittedly their vendor Abdul, Ghaffar was entitled to 17/24 share of land left by his father. The same in terms of area came to 53 Kanals whereas he in all sold 56 Kanals. It is argued that the vendees from him would not claim the land sold by Abdul Ghaffar over and above his entitlement, therefore, the revision may be accepted with the above clarification.
3. On the other hand, the learned counsel for respondents Nos.1 and 2 argued that since respondents Nos.2 to 5 did not file an appeal, therefore, they cannot be allowed any benefit as a result of acceptance of this revision. The learned counsel in this behalf has wferred to the judgments reported as Syed Abdul Jalil Shah v. Government of Punjab (1981 Law Notes (SC) 688) and Allah Bux v. Shirimati Assudi Bai (NLR 1985 UC 542). It is added that since the land has not been mutated in the name of Abdul Ghaffar, therefore, he could not have sold the same.
4. The learned counsel for the petitioners while summing up the arguments submitted that in view of provision of Order XLI, Rule 33, C.P.C., the respondents, who have not filed an appeal would be entitled to benefit of the decree.
5. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provision of C.P.C. And Muhammadan Law as well as the precedent cases. The rule of Muslim Law of inheritance is that it opens immediately on the death of last owner. The attestation of mutation and entries in other official record are mere formalities.
Therefore, Abdul Ghaffar owner as son immediately after the death of his father, therefore, the date of attestation of mutation is immaterial.
6. Now coming to the objection that since respondents Nos.3 to 5 neither filed an appeal nor revision, therefore, the judgment and decree of the two Courts below to their extent may be left as it is. It is not possible to accept this argument in view of provision of Order XLI, Rules 4 and 33, C.P.C.
The rule 4 applies where the decree appealed from proceeds on ground common to all the plaintiffs or the defendants while the Rule 33 is wider in scope and applies even where the decree does not proceed on any ground common to all persons against whom it was passed. I am conscious of the fact that the provision is not mandatory but discretionary and has to be applied, if necessary in the ends of justice, with due care and caution. The powers are available in revision also. In this behalf reference can be made to the case of Hamidan Bibi v. Sheikh Darog Ali and others (PLD 1964 Dacca 119) and Nawab Din v. Settlement Commissioner (Land), Nawab Shah and 6 others (PLD 1977 Karachi 929). This is not all. The petitioners and respondents Nos.3 to 5 purchased land through Mutation No,1707, now if it is to be held valid then it would be valid for all the vendees.
Moreover, the reasons given by the two Courts below for setting aside the mutation of sale in their favour are superficial and against the basic principle of Personal Law governing inheritance of a Muslim.
7. Now coming to the cases of 'Syed Abdul Jalil Shah' and 'Allah Bux' (supra). Suffice it is to observe here that in the case Syed Abdul Jalil the parties wanted to take benefit after remand and did not file an appeal against the original order while in the case of Allah Bux the parties have filed independent appeal and it was held that the occupants, who have not filed appeal against the order of the District Judge cannot take benefit of Rule 4, Order XLI, C.P.C. Both the judgments are clearly distinguishable.
8. The upshot of the above discussion is that the judgments of the Trial Court dated 25-6-1975 and the District Judge dated 13-7-1976 are partially set aside by accepting this revision. The result is that the decrees are valid only to the extent of share of Mst. Sharifan and Manghti and for the remaining part the sale in favour of the petitioners and respondents Nos.3 to 5 is held valid.