MIAN SAQIB NISAR, J.- One Babu Khan son of Amanat, resident of Mauza Jajoki, Tehsil and District Gujranwala, died issueless leaving behind no parents or wife. He had 57 Kanals 13 marlas of land comprising in various khasra numbers, situated in the estate of Mauza Jajoki.
2. Babu Khan was survived by the petitioners and respondents, who were the children of his two brothers, namely, Noor Muhammad and Ibrahim Khan. As per Mutation No. 172, sanctioned on 6.9.1961, the petitioners were allowed 5/6 shares, whereas respondent No.1 was allowed 1/6 share.
However, respondent No.2, the sister of the petitioners, was excluded from the inheritance in view of the Islamic Law.
3. It was claimed by the petitioners that they were all alone in possession of the whole property and were distributing 1/6 share to respondent No.1 from the produce, In 1979 respondent No.1 started claiming that he is the owner to the extent of 1/2 share in the land and similarly respondent No.2 also claimed 1/22 share.
4. In view of the above, the petitioners filed a suit against the respondents that they were owners in possession of 5/6- share out of inheritance of Babu Khan and respondent No.1 was only entitled to 1/6 share, whereas respondent No.2 had no entitlement.
5'. This suit was contested by the respondents and nine issues were framed. The parties led evidence and the learned trial Court vide judgment and decree dated 8.10.1981, dismissed the suit of the petitioners by giving findings on issues Nos.1, 2, 7 and 8 against them whereas Nos.3, 4 and 5 were decided against the respondents and Issue No.6 was not pressed. Against the above, the petitioners preferred an appeal which was dismissed on 8.10.1984. Both the judgments and decrees of the Courts below have been assailed through this petition.
6. The learned counsel for the petitioners has contended that the findings of the Courts below on Issues Nos.1, 2, 7 and 8 are illegal and unlawful. He has primarily made submissions on Issues Nos.7 and 8 which according to the counsel for the both the parties are the most crucial and would decide the fate of the case. These issues are reproduced as under Issue No.7. Whether the plaintiffs and defendant No.1, are entitled to l/6th share each in the property in dispute ?OPP.
Issue No.8. Whether the entries in the records of rights prepared subsequent to the attestation of mutation No. 172, dated 6.9.1969 are incorrect, illegal and ineffective, qua the rights of the plaintiffs ?
OPP.
7. The learned counsel for the petitioners has argued that as the petitioners are sons of Noor Muhammad, brother of Babu Khan and respondent No. 1 is the son of Ibrahim Khan, another brother of Babu Khan, therefore, according to the Islamic Law of Inheritance they are entitled to 1/6 share each in the property mentioned above. The findings of both the Courts below in this behalf are erroneous and illegal.
8. On the other hand, the learned counsel for respondent No.1 has stated that as a matter of fact Mutation No. 172, dated 6.9.1961 was erroneous and on the application moved by the said respondent it was amended and as a consequence thereof respondent No.1 is the owner to the extent of 1/2 share of the total land mentioned above, whereas the other half share was to be distributed the petitioners this is reflected in the jamabandis. It is argued that respondent No.1 is entitled to one-half share because he has to inherit that share of the property which was inheritable by his late father (Ibrahim Khan). In this behalf the learned counsel has referred to section 104 of Mulla's Mahomedan Law, 1981 Edition. On the other hand, the learned counsel for the petitioners has relied upon Syed Ameer Ali on Mohammedan Law and a Digest of Mohammudan Law by Neil B.E.Baillie. In the Book of Syed Ameer Ali in Chapter II, Page 50 it is stated that: "When there are several residuaries in the same degree, the property is divided between them "by bodies,. Not by families" (i.e., per capita and not per stripes). As, for instance', when there is a son of one brother and ten sons of another, or the son of-the one paternal uncle and ten sons of another, the property is to be divided into eleven parts, of which each takes one part."
Similarly at page 702 of Book by Baillie the same principle has been laid down. From the abstracts of above two books it is clear that the petitioners and the respondent No.1 were entitled to 1/6 share each in the property left by Babu Khan whereas respondent No.2 was not entitled to any inheritance. Section 104 quoted by the learned counsel for respondent No.1, in fact, does not pertain to Hanfi Fiqah, rather it is regarding Shia Law of Inheritance. Admittedly, the parties in this case or even Babu Khan was not a Shia and Consequently matter would not be governed by the inheritance law applicable to the Shia Sect. Both the Courts below, have positively erred on the above issues in holding that respondent No.1 was entitled to 1/2 share. The findings of the Courts below on Issue No.7 are set aside.
9. The learned counsel for respondent No.1 has argued that as the effect to 1/2 share of respondent No.1 had been given in the jamabandis and the suit had been filed after the lapse of limitation, therefore, the suit is barred by time. I may state that no objection as to limitation was raised by the respondents and consequently no issue was framed. Even otherwise I agree with the learned counsel for the petitioners that every wrong entry in jamabandi would give a fresh cause of action for a suit for declaration and for the correction of the wrong entries. Suit can be filed within six years from the date when the right to sue has occurred. In this regard the learned counsel has placed reliance upon Atta Muhammad Versus Nasir- ud-Din (P.L.D. 1993 Peshawar 127). As the suit had been admittedly filed within six years from the latest jamabandi, therefore, the same, is within time
10. As I have held that the petitioners and respondent No.1 are entitled to. 1/6 share each in the property, consequently any entry in the subsequent jamabandi contrary to Mutation No. 172 is illegal and ineffective qua the rights of the petitioners, therefore, the findings of the Courts below on Issue No.8 are also set aside.
11. In view of my findings on Issues Nos.7 and 8, the findings of both the Courts below on Issues Nos.1 and 2 are also reversed. Consequently, I accept this revision petition, set aside the judgments and decrees of both the Courts below and decree the suit in favour of the petitioners and against the respondents. No order as to costs.