The petitioners herein who are the legal heirs of Mst. Jaggo, daughter of Ghulam Muhammad alias Ghulama instituted suit for declaration to the effect that she and Mst. Janatan, the predecessor-in- interest of the pro forma-respondents being daughters of Ghulam Muhammad alias Ghulama were entitled to inherit the property comprised in the occupancy tenancy left by him and that the Mutation No,1527 attested on 11-5-1941 omitting their (sic) against their rights and so A are the mutation attested subsequent thereto. The learned trial Court after recording evidence and hearing the parties decreed the suit of the plaintiffs vide its judgment dated 19-5-1996 while appeal there against was allowed and in consequence thereof their suit was dismissed by the learned appellate Court vide its judgment dated 11-10-1999, hence this petition.
2. The only point canvassed at the bar by the learned counsel for the petitioners is that the occupancy tenancy was an inheritable right on the demise of Ghulam Muhammad alias Ghulama an occupancy tenant; that as the rights comprised in the tenancy were to be distributed amongst his legal heirs according to the Islamic Law of Inheritance and the omission of the names of the daughters from the mutation was an act against law and as such void ab initio.
3. As against that the learned counsel for the respondents contended that occupancy tenancy was not inheritable right and that, in the case of its conversion into ownership only those persons could make a claim in respect thereof who had been recorded occupancy tenants at the relevant time.
He next contended that the predecessor-in-interest of the petitioners were not recorded as occupancy tenants at the relevant time, therefore, they cannot make any claim in respect there by instituting a civil suit without getting the relevant record corrected. The learned counsel to support hik contention placed reliance on the judgment of the Honourable Supreme Court rendered in the case of Missri through legal heirs and others v. Muhammad Sharif and others (1997 SCM R 338).
4. I have perused the record of the case and considered the submissions of the learned counsel for the parties.
5. It is admitted on the record that Mst. Jagoo and Mst. Janatan were the daughters of late Ghulam Muhammad alias Ghulama, the porosities of the parties who was an occupancy tenant of the property forming subject-matter of dispute in this case. On the demise of the propositus Which took place somewhere in the year 1941 the occupancy tenancy was to devolve on his four sons, namely, Sohana, Bakhsha Muhamda and ,Ahmad and two daughters Mst. Janatan and Mst. Jaggo.
The omission of the names of the daughters of the aforesaid ladies was without any legal or moral justification, especially when the rule of inheritance at the relevant time was Mohammdan law.
Even if they were not in possession of the property, the possession of the other legal heirs who happen to be the co-sharers shall- be deemed to be the possession on their behalf as well. It has been settled by the Honourable Supreme Court in the case of Ghulam Ali and two others v. Ghulam Sarwar Naqvi (PLD 1990 SC 1) that as soon as an owner dies succession to his property opens and that there is no need of state intervention or the intervention of clergy for passing the title to the legal heirs. Similarly it is also settled that an heir in possession has to be considered to be in constructive possession of the property on behalf of the heirs in spite of his exclusive possession.
The possession of the brothers would thus be taken to be the possession of their sisters as well.
6. The learned appellate Court while sitting in judgment on this case failed to have taken notice of the law laid down by the Honourable Supreme Court in the case of Ghulam Ali and two others v.
Ghulam Sarwar Naqvi (supra).
7. As far as the judgment rendered in the case of Missri through legal heirs and others v.
Muhammad Sharif and others (supra) so- relied upon by the learned counsel for the respondent is concerned I do not think that has any relevance to the instant case because in that case the names of the predecessors-in-interest of the petitioners therein were omitted as co-occupancy tenant at the time of the preparation of the record of rights of 1904-05, while in the case before this Court though the name of the occupancy tenant, the propositus of the parties, was recorded in the periodical records but on his demise the names of his daughters were omitted from the inheritance mutation without any legal and moral justification, more so when the rule of inheritance was the Mohammadah rather than the customary law. Moreover, the dispute herein is not between the owners and the occupancy tenants or between the occupancy tenants inter se, it is, rather a dispute amongst the legal heirs of a occupancy to which can squarely be taken straightaway to the Civil Court, without having recourse to any other proceedings.
' For the foregoing reasons the judgment and decree of the learned appellate Court are set aside and those of the learned trial Court are restored. However, in the circumstances of the case I would make no order as to costs.