' This judgment will decide Civil Revision No,1076 of 1982, wherein judgment of the learned Additional District Judge, dated 26-4-1982, dismissing the appeal of petitioners against judgment and decree, dated 22-4-1980 has been called in question.
2. Iqbal Khan and others, petitioners herein (now represented by legal heirs), filed a suit for declaration to the effect, that they were owners in possession of land measuring 89 Kanals and that the order of Collector, dated 5-5-1977 and Mutation No,2461, attested on 22-6-1977 were void and inoperative against their rights. In the alternative, a decree for declaration of ownership on the plea of adverse possession was claimed with permanent injunction to restrain the respondents from seeking correction of the Revenue Record or from making interference in the ownership and possession of petitioners.
3. The facts leading to the filing of the suit are, that land measuring 89 Kanals, subject-matter of suit, was owned by one Akbar Ali alias Muhammad Akbar son of Muhammad. He died on 6-f2-1961.
On his demise, Mutation No,1597 was attested on 19-9-1962 and in consequence, the land was mutated, in favour of Iqbal Khan, Mst. Hakam Bibi (plaintiffs 1 and 2 in the suit) and Sardar Khan, father of Manzoor Hussain (plaintiff No,3 in the suit). On the death of Sardar Khan, his share was inherited by his daughters Mst. Ghulam Zohra, Mst. Ghulam Sughra and son Manzoor Hussain.
Mutation No,2310, dated 26-2-1974 was attested for the inheritance of Sardar Khan. Mst. Ghulam Zohra and Ghulam Sughra daughters of Sardar Khan transferred their share in favour of their brother Manzoor Hussain (plaintiff No,3) vide mutation of gift No .2359, dated 31-7-1974.
4. At the time of attestation of mutation of inheritance, of Akbar Ali, his daughter Mst. Khurshid Begum (predecessor of respondents), was ignored and was not given any share. On 5-5-1997, the Collector Gujrat, passed an order, permitting review of mutation of inheritance of Akbar Ali deceased, i,e,, Mutation No,1597. The review of mutation was allowed, as it was established, that Mst.
Khurshid Begum was daughter of Akbar Ali who had died during the life time of Akbar Ali and in terms of section 4 of Muslim Family Laws Ordinance, 1961, her children were entitled to receive her share, being children of the pre-deceased daughter. In this view of the order of the Collector, the Revenue Officer attested Mutation No,2461, dated 27-6-1977, whereby the share of Khurshid Begum from the estate of her father (Akbar Ali) was mutated in favour of Muhammad Riaz, Muhammad Younis, Abdur Razzaq, Mst. Sofia Begum, sons and daughter of Khurshid Begum, respondents herein. To challenge the order of Collector, sanctioning review of mutation of inheritance No,1597 and subsequent attestation of Mutation No,2461, dated 27-6-1977, in implementation of the said order, suit for declaration with consequential relief was filed by Iqbal Khan and others, petitioners herein. After issues, and evidence, the suit was dismissed by the learned Civil Judge, on 22-4-1980 which judgment was also affirmed in appeal by the learned Additional District Judge Gujrat, by his judgment, dated 26-4-1982. In this revision, the two judgments of the learned Courts below have now been challenged.
5. Learned counsel for the petitioners, argued, that A.C. And Tehsildar did not recommend the review of the mutation, in view of the subsequent changes, due to long standing entries, the Collector did not have any authority to grant sanction for review; the Collector having himself considered the necessity of review, could not effect any review of mutation without the permission of Commissioner; the Collector did not allow any opportunity of hearing to the petitioners before permitting review of mutation of inheritance; and that application of wrong law while sanctioning the mutation, could not in itself be a ground for review of the mutation. It was further argued, that continuous and long standing entries after the sanction of mutation, could not be allowed to be changed, in the exercise of power of review; no issue was framed on the plea of adverse possession and that the judgment of the learned Civil Judge do not satisfy the requirement of Order 20, Rule 5 of C.P.C., while the judgment in appeal violate the provisions of Order 41, Rule 31 of C.P.C.
6. Conversely, learned counsel for the respondents, submitted, that the relief under section 42 of Specific Relief Act being discretionary in nature, could not be extended at the instance of the petitioners, who had failed to approach the Courts with clean hands and who had attempted to usurp the share of lawful heirs of late Akbar Ali, by making concealment of the true particulars of legal heirs; the discretionary relief could not be extended for the purposes of giving any person unfair advantage; the objections, pertaining to the absence of sanction by the Commissioner for review of mutation or denial of opportunity of hearing were never raised specifically, in the pleadings nor any evidence lead and such questions cannot be raised for the first time in revisional jurisdiction; the Revenue Authorities are bound to maintain the record according to true factual position and possess suo motu jurisdiction to correct the illegal entries, which denied the rights to the lawful heirs. Lastly, it was contended, that both the Courts below, concurrently held that Khurshid Begum was daughter of late Akbar Ali, who had died before opening of succession and that the succession having opened after the enforcement of section 4 of Muslim Family Laws Ordinance, right of inheritance, from the estate of late Akbar Ali, could not be denied, to the respondents, who were children from the pre- deceased daughter of Akbar Ali.
7. The points raised by learned counsel for the parties, have been given due consideration and the evidence led by two sides, has been reviewed with their assistance.
8. Admittedly, land in issue, was initially owned by late Akbar Ali alias Muhammad Akbar son of Muhammad, who died on 6-12-1961, at the age of 70. Copy of his death entry, has been produced as Exh.D-1. Mutation of his inheritance No,1597, Exh.P-3, was attested on 19-9-1962, in favour of Iqbal Khan and Mst. Hakam Bibi (Plaintiffs Nos.1 and 2), and Sardar Khan (Father of Manzoor Hussain- plaintiff No,3). At the time of attestation of mutation this fact was not disclosed, that the deceased Akbar Ali, had any sister, in the name of Khurshid Begum. The evidence led in the suit, proved beyond doubt that Mst. Khurshid Begum was daughter of Akbar Ali. Copy of her birth register entry, was produced as Exh.D-3 which indicates her date of birth as 4-8-1916. This entry shows that a daughter was born to Akbar Ali. Muhammad Bashir, produced by the petitioners, as a witness did not deny, that Mst. Khurshid Begum was a daughter of Muhammad Akbar and that she was a married woman. He also admitted, that Mst. Khurshid Begum died six years before the demise of late Akbar Ali and that she had three sons and a daughter. Iqbal Khan, one of the petitioners appearing as P.W.2 also did not deny that Khurshid Begum was daughter of Akbar Ali and that she had children. It has been proved by the oral and documentary evidence on record, that Khurshid Begum was married to Muhammad Aslam and out of this marriage, Muhammad Ilyas, Muhammad Younis, Abdur Razzaq and Mst. Sofia Begum, respondents herein were born. Copies of their birth entries, were produced as Exhs.P-9 to P-12. It is also in the evidence that Mst. Khurshid Begum died at the age of 40 on 12-8-1960. Her death entry has been produced as Exh.D-2. The two Courts below, after taking in view the entire documentary as well as oral evidence, led by the parties, also concluded, that Mst. Khurshid Begum, mother of respondents, was the daughter of late Akbar Ali and that she had died, before the death of late Akbar Ali. Even in the course of hearing of this petition, this fact was not controverted that Khurshid Begum was real daughter of the deceased and that predecessor of respondents, had died, during the life time of her father Akbar Ali. ##TSE# She died on 12-8-1960 while the date of death as per Exh.D-2 is 12-9-1960. Whatever may the case, the death of Khurshid Begum preceded the death of late Akbar Ali, who died on 6- 12-1961. The provisions of section 4 of Muslim Family Laws Ordinance were enforced, with effect from 15-7-1961 and the same was applicable in the present case. Being children of pre-deceased daughter, the share of Khurshid Begum had automatically devolved upon the respondents who were her children. This being so, the mutation of inheritance, No,1597 Exh.P-3, dated 19-9-1962, ignoring the children from pre-deceased daughter of late Akbar Ali, was ab initio void and result of fraud. It cannot be said, that the petitioners, who were so closely related to the deceased, could be ignorant of the fact, that Khurshid Begum was entitled to a share in the estate of her father which had devolved upon her children, being children of pre-deceased daughter. Notwithstanding the fact, that being children of pre-deceased daughter, the respondents were entitled to inheritance of Akbar Ali, they were neither heard at the time of attestation of mutation of inheritance nor their rights were considered and by concealment of facts, misrepresentation and in violation of law, the mutation of inheritance was attested to illegally exclude the lawful heirs of their share from the estate of Akbar Ali. It was in this back-drop, that the Collector, permitted review of the mutation which was duly implemented and consequently, Mutation No,2461, dated 27-6-1977 was attested, to enter the names of respondents, as co-heirs of late Akbar Ali, and co-sharers in the suit property.
9. The points raised by learned counsel for the petitioners, though prima facie, looked to be attractive but on careful consideration of the matter in issue, in the light of the evidence, as has come on the record, it is observed, that the objections raised are without substance. Reliance was placed on Abad Muhammad v. Mst. Sakina and another (PLD 1987 (Revenue) page 27), Mst.
Shamim Akhtar and others ,v. Ghafoor Ahmad and others (PLD 1988 Revenue page 56), to argue, that the long standing entries in the Revenue Record could not be allowed to be altered after considerable delay. These are the cases, decided by the Member Board of Revenue, which can hardly be referred, before this Court for making reliance to canvass a legal proposition. Even otherwise, as noted supra that the mutation in issue was void ab initio as the same offend the provsions of section 4 of Muslim Family Laws Ordinance and the purport of the mutation was to deprive of a lawful heir from his legal due from the estate of propositus, which could not be justified, on any principle of equity or law and, therefore, such like entries, which were based on fraud and concealment of facts, could be ignored, and be corrected, at any stage, with a view to give effect to the rights, of the lawful heirs, which had already devolved upon them, by operation of law.
10. There is a considerable force, in the submission of learned counsel for the respondents, that the order of Collector, and the subsequent mutation recognizing the rights of respondents, was never challenged, on the grounds, as are being urged, at revisional stage, and in fact, the order was challenged on general grounds. Be that as it may, there is no substance, in these submissions. The Collector was competent, to sanction review and it was not binding upon him, to follow, the reports of his subordinates, particularly, when he found, that the mutation was attested in violation of law and that the rights of respondents were illegally ignored, therefore, there was no question of delay, as the respondents were not party in the proceedings for mutation of inheritance, and they had not been heard. Any order, obtained in their absence, being violative of law and otherwise violative of rule of natural justice, could be challenged by them, at any stage, on acquiring knowledge of the adverse entries, and this C right, could not be denied, on the ground, that the petitioners having been successful in reaping the fruits of fraud, should not be deprived therefrom. It is a settled rule that the mutation by itself does not convey any title. The mere attestation of mutation of inheritance would not mean, that a title had accrued in favour of the petitioners. These entries are made, for fiscal purposes. Rights flow either under the contract or by operation of law. Revenue Authorities attest mutations, to up date their record, on the basis of alienations made, through registered instruments or by devolution of rights through inheritance. In this case, the rights automatically devolved upon the respondents, who became owner to the extent of the share of their mother Khurshid Begum in the estate of late Akbar Ali, on the opening of succession and by operation of law. It is obvious that a Muslim estate legally and juridically vests immediately, on his death, in his or her heirs and their rights respectively come into existence forthwith. The theory of representation of estate by a intermediary is unknown to Islamic law of inheritance as compared to the other systems. There being no vesting of estate, of the deceased for an interregnum in any one like an Executor or Administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction. If at the time of attention of mutation, their names have not been mentioned, as heirs of the deceased, it would not mean, that their right of inheritance had vanished or relinquished. It will at best be a case of insertion of incorrect and false entries in the Revenue Record. The errors, which have appeared due to accidently slip, or on account of concealment of facts, can be corrected by the Revenue Authorities, at any stage and any such illegal and fraudulent entry cannot create any vested right in favour of the person, who is guilty of securing the same by concealment of facts.
11. Even otherwise, it is a settled rule,that the decree of the Civil Court is binding upon the Revenue Authorities. The Revenue Authorities are duty bound to give effect to the decrees of the Courts, in the Revenue Record and to make entries accordingly. In Ali Ahmad and another v. Muhammad Fazal and another (PLD 1973 Lahore 207), it was held that the Revenue Authorities are under obligations to give effect to the decree of Civil Court and change entries in the Revenue Record, in accordance with rights determined thereby. This view was also approved by the Honourable Supreme Court, in 1972 SCM R 322, where it was held, that even if the decree had not been put into execution within the prescribed period of limitation and has become ineffective, the Revenue Authorities are under obligation to sanction mutation on the basis thereof. In this case, both the Courts below, on consideration of the evidence led by the parties, have concurrently held, that Khurshid Begum was the pre-deceased daughter of Akbar Ali, who was entitled to her share from the estate of Akbar Ali and that the respondents being her children had legally inherited the said share from the estate of Akbar Ali. The finding of fact was not seriously challenged and as a matter of fact; it was not denied in the course of hearing of this petition that Khurshid Begum was pre- deceased daughter of late Akbar Ali. Even on re-consideration of the evidence, in the course of hearing of this revision, it was observed, that the finding of fact, recorded by the two Courts below, did not suffer from any legal infirmity or misreading of the record. This being so, the decree now granted by the Civil Court, will have to be given effect in the Revenue Record. Even if, there was some objections to the proceedings for review of mutation of inheritance, still, the petitioners cannot succeed, as the Courts below have concurrently found that Mst. Khurshid Begum was the pre-deceased daughter of late Akbar Ali, her share had devolved upon the respondents, as children of the pre-deceased daughter, and, therefore, the Revenue Authorities will be bound to effect the mutation on the basis of the findings so recorded by the Civil Courts.
12. As regard the objections, to the framing of the issues, the same is devoid of any, force. No such objection was raised during the trial of the case or in the proceedings of appeal. No application for amendment of issues was filed. Both the parties, being conscious of the real controversy, led evidence, for and against the respective plea, the two Courts below did record findings do all the questions raised in the pleadings, no prejudice can be said to have been caused by any non- framing of the issues. Even otherwise, Issue No,1, was comprehensive and enough to cover the total claim of ownership raised by the petitioners in the plaint.
13. As regard plea of adverse possession, the same is without substance. On the opening of inheritance of late Akbar Ali, the share of pre-deceased daughter, fell to the lot of respondents, who became co-sharers, in the property. There being no evidence of ouster, the plea of adverse possession was not well-founded and was rightly repelled by the two Courts below. It is a settled rule that express repudiation and ouster must be proved and mere omission to pay profits does not in itself constitute ouster. Apart therefrom, the male members of the family are ordinarily considered to be the representative of the females in the matter of administration of joint properties and the male members cannot set up a claim of adverse possession against the female co-sharers particularly, when there was no evidence of complete ouster.
14. In so far as the argument, that the two judgments, did not decide all the issues or did not record independent findings, in terms of Order 20, Rule 5 of C.P.C. And Order 41, Rule 31 of C.P.C., the same is without substance. The perusal of judgments of the Courts below do indicate that all the material issues were duly attended in the light of evidence led by the two sides and conclusive findings were recorded with independent reasons. The learned Trial Court decided all the issues through a detailed judgment, and the findings recorded by him are supported by solid reasons. In appeal, the learned Additional District Judge was not required to record issue-wise findings. All that judgment has to show, was that the points raised in appeal, were duly attended, the evidence on record was re-appraised and that the decision was supported by independent reasoning. The review of the judgment in appeal makes it obvious that the learned Additional District Judge did take note of all the points raised in appeal, considered the entire oral and documentary evidence on record and recorded findings, duly supported by independent reasons. The reasons recorded by the learned Additional District Judge are insufficient detail which do satisfy the requirement of Rule 31 of Order 41, C.P.C. The vires of two judgments cannot be assailed on such plea.
15. Apart from the reasons noted (supra), the suit of the petitioners was liable to be dismissed, on the ground, that in the discretionary and equitable jurisdiction, the petitioners were not entitled to seek any indulgence. It is a settled rule that one who seeks equity, must do equity. It is also a settled rule, that a person seeking indulgence in equitable and discretionary jurisdiction cannot claim any undue advantage. In this case, the petitioners intended to deprive the lawful heirs of their share in the estate of their propositus. The objective behind the suit, was to deny the respondents, what were their due in law. The petitioners, therefore, intended to gain undue advantage as against respondents. n Muhammad Amin etc. v. Mian Muhammad (PLD 1970 B.J. 5) it was held, that sections 42 and 56 of the Specific Relief Act deal with suit for declaration and injunction and both being discretionary and equitable relief cannot be granted to give undue benefit. It was further held, that the provisions which have been made applicable to the suit for injunction, in the judicial pronouncements, are equally applicable to the declaratory suits. The petitioners, through the declaratory suit, intend to usurp the Islamic share of respondents, and thus, the real intention was to gain undue advantage and to act in an unfair and inequitable manner. In this view of the matter, no indulgence can be made in the discretionary jurisdiction as the petitioners had not approached the Court with clean hands. Even otherwise, their conduct was highly objectionable, inasmuch as, they deliberately concealed the relationship of Khurshid Begum from the Revenue Officer at the time of attestation of mutation of inheritance and secured a mutation by concealment of facts and misrepresentation. For this reason also, equity did not favour the petitioners. For the reasons above, this revision being without substance and devoid of merit, is dismissed, leaving the parties to share their own costs.