' Predecessor of the petitioners herein had filed a suit for declaration to the effect that he and defendants Nos.2 to 35 in the suit were owners possession through inheritance of the estate left by his father Haji Doctor Allah Yar Khan. The description of property was sufficiently disclosed in the heading of the plaint. The inheritance mutation No,7341 attested on 6-8-1962, wherein apart from plaintiffs/defendants Nos.21 to 35, one Mst. Allah Wasai was also entered as owner through inheritance, was also challenged. The land entered in the name of Allah Wasai was subsequently mutated in the name of defendant No,1 which was also made sub judice in the suit. Suit of the plaintiff bearing No,285/1 of 1991 was decreed by the trial Court of Civil Judge, D.I., Khan, but on appeal the District Judge, Tank Camp at D.I. Khan reversed the finding of the trial Court and dismissed the suit of the plaintiffs/petitioners vide his impugned judgment and decree dated 20- 11-1994. Hence this revision petition.
2. The disputed property was originally owned by Doctor Haji Allah Yar Khan who had married three wives. His first wife was Mst. Allah Wasai who died issueless after the death of Haji Allah Yar. Khan.
His second wife was Mst. Haleema Bibi who had died in the lifetime of her husband doctor Allah Yar Khan leaving behind four sons, namely Anwarul Haq, Mazharul Haq, Haji Muhammad Hayat, Haji Nvorul Haq and two daughters named Mst. Mehrunnisa and Mst. Qamarunnisa. His third wife was Mst. Taj Bibi who died after the death of her husband Haji Doctor Allah Yar Khan, leaving behind two daughters, namely Mst. Iftikhar-un-Nisa and Tahira-un-Nisa. Doctor Allah Yu Khan died somewhere in the year 1962 when the Inheritance Mutation No,7341 was entered and attested on 8-6-1962, whereby estate left by Doctor Allah Yar Khan was devolved upon his two wives, namely, Mst. Allah Wasai (issueless) and Mst. Taj Bibi including his sons and daughters. Mst. Allah Wasai subsequently sold away her share to defendant No,1 vide Mutation No,10009 attested on 16-11-1978. Anwarul Haq, the real brother of the plaintiffs (predecessors of the petitioner) instituted a suit challenging the aforesaid inheritance mutation and sale mutation in favour of defendant No,2, wherein the predecessor of the present petitioners was arrayed as pro forma defendant. The said Anwarul Haq died during pendency of the suit as issueless.
3. It was alleged in the plaint that Mst. Allah Wasai, the Ist wife of Doctor Allah Yar Khan, was divorced and defendant No,1 being her real nephew and an in fluencies person of the area serving as an Officer in the Police Department and in connivance with the officials of the. Settlement Department entered Inheritance Mutation No,7341 attested on 6-1-1962 wherein Mst. Allah Wasai, the divorced wife of Allah Year Khan, was also shown as one of his widow and thereafter, vide Sale Mutation No,10009 attested on 16-11-1978, transferred the same in his favour, although, she was divorced by her husband in his lifetime and she was not his legal heir as a widow at the time of his death. The suit was contested by defendant No,1 wherein the averments made in the plaint were categorically denied. The trial Court framed 10 issues including the relief arising out of the pleading of the parties.
4. The main controversy between the parties has been struck in Issue No,7. The burden to prove this issue was lying on the shoulder of the plaintiff. In order to discharge that burden, he produced six witnesses in all and exhibited certain documents (Exh.P.W.3/1 to Exh.P.W.3/3) together with a writing of doctor Allah Yar Khan as Exh.P.A. The -oral evidence produced by the plaintiff/petitioners does not establish that Mst. Allah Wasai was divorced by her husband Allah Yar Khan. None of the witnesses has deposed that in their presence she was divorced by her husband. The gist of oral evidence is that Mst. Allah Wasai shifted her residence to the house of her brother-in-law (brother of her husband namely Sarfaraz). The document (registered deeds Exh.PW.3/1 to Exh.P.W.3/2) are gift deed whereby doctor Haji Allah Yar Khan had gifted certain property to two of his sons. It is alleged that both these documents mentioned the names of wives, sons and daughters of Allah Yar Khan, but the name of Mst. Allah Wasai was not metnioned therein and the learned counsel for the petitioners is of the view that omission of her name in these two documents would be presumed that the said Mst. Allah Wasai was not recognized at the time of execution of those deeds. However, his this presumption is baseless, as divorce is to be specifically proved to oust a legally-wedded wife of the deceased from getting share in inheritance. Her name is missing in the two deeds, because she was issueless and the donor, i,e, Haji Doctor Allah Yar Khan, was transferring the land by way of gift to his sons. Since his two wives having issues were mentioned in the deeds, Mst. Allah Wasai was omitted to mention being issueless. The right of inheritance is provided in the "Holy Qur'an" and a wife cannot lightly be deprived of her share in inheritance merely on presumption or hearsay evidence.
5. There is yet another aspect of the case. The inheritance mutation was entered and attested in 1962, but none of the heirs of Haji Doctor Allah Yar Khan who all are party to the present litigation objected to the grant of share in inheritance to Mst. Allah Wasai vide mutation ibid till 1986. The silence and conduct of the plaintiffs/petitioners and the pro forma defendants estopped them to object the said inheritance. Above all the said Mst. Allah Wasai was also not sued in her lifetime.
6. For the reasons narrated above, the petitioners have miserably failed at the trial to prove the factum of divorce between Haji Doctor Allah Yar. Khan and Mst. Allah Wasai and, therefore, their suit has rightly been dismissed by the District Judge. The instant revision petition being devoid of any meritable consideration and without any substance is hereby dismissed leaving the parties to bear their own costs.