' Mehr Muhammad respondent herein brought a suit against Shahbaz and others for a declaration to the effect that he alongwith pro forma defendants Nos.7 to 12 was the owner of the suit land described in the head-note of the plaint as legal heirs of one Mst. Sabhai and the other defendants had nothing to do therewith and mutation No,1950 dated 19-5-1971 in respect of her inheritance in favour of Malik son of Gullan, had been attested against law and facts and was, therefore, not binding upon them. As a consequential relief he requested for the possession of this land.
2. It was alleged in the plaint that the suit property originally belonged to Mst. Sabhai, daughter of Sikandar wife of Shera who died issueless about 6/7 years prior to the institution of this suit and her property was wrongfully transferred in the name of Malik son of Gullan vide inheritance mutation No,1950 attested on 19-5-1971 in spite of the fact that Malik had no relationship whatsoever with Mst.
Sabhai and it was the plaintiff and defendants Nos.7 to 12 only who were entitled to inherit the same as her legal heirs. It was further alleged that after the death of Malik the land was wrongfully inherited by his successors who were asked by the plaintiff to acknowledge his rights, get the mutation cancelled and hand over the possession of the land but on their refusal, he had to take resort to this civil action.
3. Defendants Nos.1 to 4 controverted the claim of the plaintiff in their written statement contending inter alia that the plaintiff had no locus standi to bring this suit and he and defendants Nos.7 to 12 were not the legal heirs of Mst. Sabhai. In their separate written statement defendants Nos.5 and 6 also made similar claim and alleged further that the suit of the plaintiff was barred by time because Mst. Sabhai had died 14/15 years ago; that the plaintiff was present at the time of the attestation of the mutation and was, therefore, estopped from agitating the matter at this late stage and that Malik deceased had transferred 1/3rd of the property in dispute to defendant No,6 through will. The valuation of the suit was also questioned. Defendants Nos.7 to 12, however, did not turn up in spite of service and were, therefore, proceeded against ex parte.
4. The learned Civil Judge then seized of the matter put the parties to the following issues, allegedly arising out of their pleadings:--
(1) Whether the plaintiff is entitled to inherit the property of Mst. Sabhai as her decendant? OPP
(2) Whether the plaintiff is entitled to possession of the suit property?OPP
(3) Whether mutation No,1950 dated 19-5-1971 was illegal and inoperative upon the rights of the plaintiff? OPP
(4) Whether the suit is time-barred? OPD
(5) Whether the plaintiff has no locus standi to bring this suit?OPD
(6) Whether the plaintiff is estopped by his conduct to bring this suit? OPD
(7) Whether the proforma defendants are entitled to the relief prayed for in the plaint? OPD 7 to 12
(8) Whether the suit is under valued for purposes of court-fee? OPD
(9) Relief.
5. After recording the evidence and hearing the arguments addressed at the Bar Mr. Safdar Hussain, the then learned Civil Judge, Mianwali proceeded to give his findings on the issues. On issue No,1 he came to the conclusion that Mst. Sabhai was the full owner of the property in question and the plaintiff and defendants Nos.7 to 12 were her legal heirs and, as such, entitled to inherit her property. This issue was answered accordingly in favour of the plaintiff. He took up issues Nos.2 and 4 together and came to the conclusion that in view of what has been laid down in PLD 1964 Supreme Court 329 the suit was governed by Article 120 and not by Article 142 or 144 of the Limitation Act and the suit was, therefore, barred by time and the plaintiff was not entitled to claim its possession. Both these issues were answered accordingly. On issue No,3 he held that the plaintiff had lost the remedy to challenge the operation of mutation in question, by laches and, therefore, he answered this issue against the plaintiff. Issues Nos.5 and 6 were also taken up together and were answered in favour of the defendants. On issue No,7 he came to the conclusion that defendants Nos.7 to 12 were also not entitled to the relief prayed for in view of his findings on issues Nos.2 and 4. The onus to prove issue No,6 being on the defendants and they having failed to lead any evidence to establish estoppel it was answered against the contesting defendants.
Consequently he dismissed the plaintiff's suit, as barred by time but left the parties to bear their own costs, by means of his judgment dated 4-1-1981.
6. Feeling aggrieved, the plaintiff preferred an appeal which was accepted by the then learned District Judge, Mianwali after upsetting the findings of the learned Civil Judge with regard to limitation. He observed that the mutation wa not a deed of title and was only for fiscal purposes and, as such, could have been just ignored, being contrary to law. While upholding the findings of the learned Civil Judge on issue No,1 he concluded that after the death of Mst. Sabhai her collaterals i.e,, the plaintiff and defendants Nos.7 to 12 succeeded her, under the Muslim law and Malik being the brother of her husband was not entitled to any share therein. He observed further that the plaintiff could get declaration within 12 years of the death of Mst. Sabhai who died on 18-3- 1971 as per Exh.P-2 and, as such, the suit was well within time. He, therefore, reversed all the findings of the learned Civil Judge, recorded against the plaintiff and resultantly accepted the appeal, set aside the decree of the learned Civil Judge and granted the declaration with consequential relief, as prayed for, in the plaint by means of his detailed judgment and decree dated 28-1-1982. The cross-objections were also dismissed and it was observed further that the costs would follow the event.
6-A. This judgment and decree passed by the learned District Judge has been assailed in this civil revision by Shahbaz and five others asserting in the grounds of revision inter alia (i) that the judgment and decree of the learned District Judge was based on misreading of evidence and it had been wrongly held that Mst. Sabhai was the full owner of the property in question; (ii) that the learned District Judge failed to give his findings issuewise and also on the cross objections filed by defendants Nos.1 to 6 and he failed to give any reason for setting aside the findings of the learned Civil Judge on issues Nos.2 to 7 in favour of the defendants; and (iii) that since the plaintiff or the pro forma defendants were not in possession of the suit property a suit for declaration was not maintainable. It was also claimed that the property in question was held by Mst. Sabhai as a widow of Shera and Malik son of Gullan being his brother was entitled to inherit the same and on his death Mukhtar Ali would get 1/3rd on the basis of will while the remaining 2/3rd was rightly inherited by defendants Nos.1 to 4. The civil revision was admitted to regular hearing in view of the contention of the learned counsel for the petitioner that the learned appellate Court should have given findings on all the issues which were decided against the defendants/petitioners.
7. I have today heard the learned counsel for the parties at some considerable length. The fact that the correctness of the pedigree-table given by the plaintiff in his plaint was not controverted by the contesting defendants, has been taken note of by both the learned Courts below. The plaintiff claimed that his father, Habib (Ghulam Habib) was a first cousin of Mst. Sabhai and was the son of one Langar. Defendants Nos.7 to 12 are the sons and daughter of Ghulam Ahmad a brother of Habib while Mst. Sabhai deceased was daughter of Sikandar, a real brother of the said Langar. The claim of the plaintiff who appeared as P.W.2 was fully supported by Muhammad Siddique P.W.1 who belonged to their tribe. Mst. Sabhai was, as per the entry in the Revenue Record, recorded as the full owner of the property. The plaintiff and defendants Nos.7 to 12 are, thus, entitled to inherit the same.
The defendants could not produce any evidence to successfully rebut the evidence produced by the plaintiff and what the D.Ws. Deposed has been discussed at length by the learned Civil Judge while giving his findings on issue No,1 and he rightly conceded that the plaintiff and the pro forma defendants were the legal heirs of Mst. Sabhai. A detailed discussion of the same evidence would he nothing but a repetition of the findings of the learned Civil Judge and would amount to burdening this judgment with unnecessary details. The learned counsel for the revision petitioners has not been able to dislodge these conclusions arrived at by the learned Civil Judge and confirmed by the learned District Judge.
8. As regards the question of limitation for bringing the suit, suffice shall it to say that after establishing that the plaintiff and defendants Nos.7 to 12 were the legal heirs of Mst. Sabhai and were entitled to a declaration in respect there of the learned Civil Judge was totally in error in holding that the suit was barred by time or that the claim of the plaintiff was hit by laches. It was held in Allah Wasaya and 3 others v. Rahim Bakhash and another (1991 SCM R 1369) that, title or remedy of an heir is not lost by efflux of time. The learned counsel for the revision petitioners has not been able to show that the finding of the learned District Judge in this behalf suffers from any illegality or infirmity. The plaintiff could very well bring a suit within a period of 12 years from the date of the death of Mst. Sabhai. It is a well-established principle of law that as soon as a Muslim owner dies succession of estate left by him/her immediately opens and title passes to the heirs. It has been so held in Muhammad Hussain alias Muhammad Yar v. Sardar Khan and 11 others (PLD 1993 Lahore 575) wherein it is also added that no principle of limitation can be used to defeat the visible right of inheritance. The finding of the learned District Judge in this behalf is, therefore, unassailable and is confirmed.
9. As regards the claim of the petitioners that the learned District Judge failed to give findings issuewise I find that it is without force. If the judgment of the learned District judge is read as a whole, reading between the lines would make it abundantly clear that findings have been recorded on all the issues. The findings of the learned Civil Judge on issues Nos.1 and 8 were confirmed. It was also held that mutation No,1950 dated 19-5-1971 was illegal and inoperative upon the rights of the plaintiff and the suit was well within time and the plaintiff was, therefore, entitled to the consequential relief of possession. Issues Nos.2, 3 CI and 4, thus, stood answered in favour of the plaintiff and against the defendants. No evidence was led with regard to estoppel and the findings on issue No,6 also, therefore, had to be confirmed. Since the plaintiff has been able to establish that he is entitled to inherit the property of Mst. Sabhai as her collateral alongwith defendants Nos.7 to 12 issues Nos.5 and 7 were also in effect answered against the defendants. The plaintiff had locus standi to bring the suit and the pro forma defendants are entitled to inherit the property with the plaintiff.
10. This being the position, I find nothing wrong with the judgment and decree passed by the learned District Judge in appeal, for interference in exercise of the limited jurisdiction under section 115 of the Civil Procedure Code. This revision petition is, therefore, without merit and is accordingly dismissed with costs throughout.