1. ' CH. MUHAMMAD ARIF, J.---Leave to appeal is sought against judgment dated 8-7-1998 passed by a learned Judge in Chambers of the Lahore High Court, Lahore whereby respondents' Civil Revision No.1832 of 1984 was allowed with the result that the findings of the Courts below on Issues Nos.1 and 2 were reversed, their judgments and decrees respectively dated 8-10-1998 and 8-10-1984 set aside and the suit of the respondents/plaintiffs was decreed.
2. Briefly put, the case of plaintiffs/respondents herein in the suit was that Babu Khan son of Amanat resident of Jajuki, Tehsil and Disctrict Gujrawala died issueless leaving behind none of the parents or wife. He had 57 .Kanals, 13 Marlas of land comprising in various Khasra Nos in the revenue estate of Mauza Jajuki, Tehsil and District Gujranwala. He was survived by the parties in this litigation who are the progeny of his two brothers namely, Noor Muhammad and Ibrahim Khan. As per Mutation No.172 sanctioned on 6-9-1961, respondents Nos.1 to 5 were allowed 5/6th shares whereas petitoner-Abdul Sattar was allowed 1/6th share. However, respondent No:6/Mst. Salah Bibi daughter of Noor Muhammad, was excluded from the inheritance in view of the Islamic law. It was claimed by the plaintiffs that they were all along in possession of the entire property and were distributing 1/6 share to petitioner-Abdul Sattar Khan from the produce. In 1979 petitioner-Abdul Sattar Khan started claiming that he is the owner to the extent of 1/2 share in the land. Similarly, respondent Mst. Salah Bibi also claimed 1/22 shares. It was claimed by plaintiffs that they were owners in possession of 5/6th shares and petitioner-Abdul Sattar Khan was entitled to only 1/6 shares whereas respondent-Mst. Salah Bib had no entitlement at all.
3. The leaned trial Court framed as many as 9 issues, including the issue of Relief, which read thus: "(1) Whether the plaintiffs had no cause of action? OPD.
4. Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction? OPD.
5. Whether the suit is not maintainable in its present form? OPD If Issue No.3 is proved in the affirmative then what is the correct valuation? OPP Whether the plaint has not been properly verified, if so, its effect? OPD Whether the suit is based on mala fide? if so, its effect? OPD Whether the plaintiffs and defendant No.1 are entitled to 1/6 share each in the property in dispute?
6. OPD Whether the entries in the records of rights prepared subsequent to the attestation of Mutation No.172 dated 6-9-1979; are incorrect, illegal land ineffective, qua the rights of the plaintiffs? OPP
9. Relief."
7. ' After trial and after hearing the parties through their respective counsel, the trial Court dismissed the suit vide its judgment and decree dated 8-10-1981 by giving findings on Issues Nos.l, 2, 7 and 8 against the plaintiffs whereas Issues Nos.3, 4 and 5 were decided against defendants and Issue No.6 was not pressed.
4. The plaintiffs remained unsuccessful in their appeal against the judgment and decree of the trial Court dated 8-10-1981 before the 1st Appellate Court through latter's judgment dated 8-10-1984. It would be advantageous to reproduce the last five paragraphs of the judgment of the 1st Appellate Court dated 8-10-1981 which make the following reading at pp:27-29 of the Paper Book: "Issue No.1 whether the plaintiff has no cause of action and Issue No.7 whether the plaintiffs and defendant No.1 are entitled to 1/6th share each in the property in dispute were pressed into service.
8. "The learned counsel for the appellant has mainly stressed that the appellants stand on equal footing with respondent and related to Babu Khan in equal degree, so mutation Exh.P1 was correctly sanctioned by the revenue authorities and that jamabandies P-2 to P-6 were later on prepared in connivance with the respondent, so cause of action accrues to the appellants and that they challenged these Jamabandis by way of present suit.
9. "On the other hand, the learned counsel for the respondents have maintained that mutation Exh.P-1 no where indicates that the appellants are entitled to 5/6 share while respondent is entitled to 1/6 share. While Jamabandi for the year 1962-63 indicates that the respondent is entitled to 1/2 share of the disputed land abandoned by Babu Khan deceased as he is representing his father. Similarly the appellants represent their father who is also connected with Babu deceased, and as such, the respondent is entitled to 1/2 share being the representative of his father and the appellants are entitled to equal share. The learned counsel for the respondents has argued that the appellant kept silent for full 18 years and they have not given specific date when they came to know about the entries made in favour of the respondent. I do not agree with the arguments of the appellant as it was their duty to check up the entries in the Jamabandies and get the correction from the Revenue Authorities by filing the appeal or revision against the said mutation. Their remaining silent for 18 years indicates that they have accepted the claim of the respondent to the extent of 1/2 share of the suit land. Presumption of truth is attached to the Revenue Record duly maintained in this connection. The learned counsel for the respondent has cited PLD 1960 Lah. page 181 in which it has been held that under sections 101 and 104 of Evidence Act enteries in the Jamabandies-initial presumption in favour of person in whose favour such entries exist--burden of proofs The onus was on the appellant but they have not done so. He has also cited 1979 SCM R 625, in which it has been held that under section 52 of Land Revenue Act entries in the Jamabandies carries statutory presumption of truth.
10. ' On the other hand the learned counsel for the appellant has not produced any authority in support of his contention. He has only maintained that as per Mutation No.172 Exh.P-1, appellant is entitled to 5/6 share of the land in dispute but his remaining silent of 18 years as stated above and not challenging the Jamabandies disentitled him to come up with the plea that they are entitled to 5/6 share of the disputed land. I hold that the learned trial Court has rightly decided Issue No.1 in favour of respondent No.1 which is hereby affirmed. As discussed above, I need not to discuss other issues except Issue No.7 which also has rightly been decided against the appellant as per documentary proof produced by the appellant himself i.e. Jamabandies P-2 to P-6 for the year 1962-63 to year 1967-68, 1971-72 and 1975-76 which fully support the case of the respondents.
11. ' In view of the above discussion, I see no force in the appeal which is hereby dismissed."
5. Respondents' Civil Revision No.1832 of 1994 was allowed by the learned Judge in Chambers, after taking into consideration the joint submission on behalf of the learned counsel for both the parties that Issues Nos.7 and 8 are the most crucial and would decide the fate of the case, as below: "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.
12. 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 amongst 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 Mehomedan 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 Mohummadun Law by Meil B. E. Baillie. In the book of Syed Ameer Ali in Chapter 11, 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 stirpes). As, for instance, when there is a son of one brother and ten sons of another, or the son of one paternal uncle and ten sons of another, the property is to be divided into eleven parts, of which each takes one part."
13. ' 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 Inheritatice. 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.
14. The learned counsel for respondent No.1 has argued that in fact 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 v. Nasir-ud-Din (PLD 1993 Peshawar 127). As the suit had been admittedly filed within six years from the latest Jamabandi, therefore, the same is within time.
15. 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."
16. 6 Hence this petition.
17. Mr. Ejaz Ahmad Khan, learned, Advocate-on-Record appearing in support of this petition, has reiterated the stand taken by the petitioner in the memo. of this petition that (1) he correctly held 1/2 share in the land left by Babu Khan who had died issueless and left none of the parents and no wife; (2) the suit land was inherited by the petitioner and the respondents 'per stirpes and not per capita', and (3) in view of the admitted fact that the petitioner was recorded as sharer to the extent of 1/2 share in the suit land in the jamabandies for the year 1962-63 onward, the respondents had no right to challenge the same through this suit dated 11-7-1979 and for, that reason alone he could not be non-suited as above.
18. We are afraid the sum total of the case of the petitioner was duly considered by the learned Judge in Chambers to reach the conclusion that as admittedly none of them belongs to Shia Sect, therefore, the Courts below were in error in holding that the petitioner was entitled to 1/2 share.
19. When the attention of the learned counsel was drawn to the fact that Noor Muhammad, Ibrahim and Babu Khan being real brothers inter se the question of inheritance in the instant case was to be resolved by keeping in view the position/status of the progeny of Ibrahim and Noor Muhammad i.e. as residuaries being at equal distance from the deceased-Babu Khan, therefore, they will inherit not as representing their respective fathers as a group but equally being placed in scenario for the purposes of inheritance to the estate of the deceased, he had nothing to urge in support of his client's case.
20. We find that the learned Judge in Chambers was quite right in holding that: "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.
21. The findings of the Courts below on Issue No.7 are set aside." (Underling is for emphasis).
22. Moreover, it is not the case of the petitioner that his father and father of respondents Nos. 1 to 5 were alive at the time of opening of succession to the estate of deceased-Babu Khan to entitle them respectively.
23. As regards the plea that the entries in Jamabandies for the year 1962-63 onwards could not be challenged after 18 years through this suit dated 11-7-1979, we are of the view that the learned Judge in Chambers did not fall in any error whatsoever to come to the conclusion that: "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 v.
24. Nasir-ud-Din (PLD 1993 Peshawar 127). As the suit had been admittedly filed within six years from the latest Jamabandi, therefore, the same is within time." (Underlining is for emphasis).
25. Looked at from whatever angle, there is no merit in this petition which is dismissed and leave refused.