' This revision petition arises out of the judgment and decree, dated 15-12-1990 passed by the District Judge, Sargodha whereby the judgment/decree, dated 16-2-1983 was reversed and the suit of the plaintiffs/respondents was decreed.
2. Brief facts of the case are that one Samad Khan son of Sarfraz Khan was owner of land in Khata No,254, Sq. No,6, Killas Nos. 1 to 15, 16/2 measuring 138 Kanals situated in Chak No,48 NB, Tehsil and District Sargodha. He died on 11-3-1960. Samad Khan, deceased had two sons namely Ali Muhammad and Atta Muhammad. Ali Muhammad died during the lifetime of the deceased while Ata Muhammad died issueless without marriage after the death of Samad Khan. A Mutation of Inheritance was entered on 26-2-1961. This mutation was statedly based on a will dated 8-3-1960 of Samad Khan, deceased. The property of the deceased was mutated in favour of two sons and two daughters of Ali Muhammad as grandsons and granddaughters of Samad Khan. On 16-7-1979 the two sons of Ali Muhammad, and grandsons of Samad Khan filed a suit for declaration that they be declared as the sole heirs and owners in possession of the property left by Samad Khan and that the defendants are not entitled to any inheritance. The case set up by the plaintiffs- respondents was that defendants-petitioners are not their real sisters. The plea taken in the plaint was that they were born from the previous marriage of Muhammad Bibi who subsequently married with Ali Muhammad father of the plaintiffs-respondents. The suit was resisted by the defendants- petitioners and it was inter alia contended that they are the real daughters of Ali Muhammad and they had inherited the property as granddaughters of Samad Khan. The pleadings of the parties led to the framing of six issues. Both the parties led their evidence. After completing the hearing of the case the trial Court vide its judgment and decree, dated 16-3-1983 dismissed the suit filed by the plaintiffs-respondents. The trial Court held that the plaintiffs-respondents and defendants- petitioners are sons and daughters of Ali Muhammad therefore the plaintiffs-respondents were not the sole heirs of Samad Khan, deceased. It was also held that mutation dated 26-2-1961 was validly and properly entered and sanctioned.
3. The plaintiffs-respondents filed an appeal assailing the judgment and decree of the trial Court.
The District Judge, Sargodha accepting the appeal decreed the suit of the plaintiffs-respondents and reversed the judgment/decree of the trial Court. The Appellate Court held that defendants- petitioners were the real daughters of Ali Muhammad but mutation dated 26-2-1961 was not validly entered. It was observed by the Appellate Court that the mutation was entered into on the basis of a will dated 8-3-1960 but that will was not available and the same was not produced in evidence by any of the parties. According to the District Judge in the matter of inheritance of Samad Khan, deceased was not properly considered and Ata Muhammad who was the only survival sons 'of the deceased was illegally ignored and the mutation was sanctioned in favour of the children of predeceased son of Ali Muhammad, on the basis of inheritance or in the alternative on the basis of some alleged will. It was also noticed by the Appellate Court that Ata Muhammad, had challenged the mutation claiming himself to be the sole heir after the death of Samad Khan and from this he inferred that he had not consented to the will after the death of Samad Khan therefore, no property could have devolved on any person on the basis of said will.
4. Through the present revision petition the granddaughters of Samand Khan, deceaed called in question the judgment and decree of the Appellate Court. The learned counsel appearing for the petitioners argued that Samand Khan was a refugee right-holder and under paragraph 46 of Rehabilitation Scheme framed under Displaced Persons (Land Settlement) Act, 1958 the plaintiffs and defendants as children of the pre-deceased son of Ali Muhammad had to inherit to the extent of their shares as the children of predeceased son Ali Muhammad. It was further argued that the Civil Court lacked jurisdiction to judicially review the mutation in view of the expressed mandatory provisions of sections 22 and 25 of the Displaced Persons (Land Settlement) Act, 1958. According to the learned counsel the question of inheritance was required to be determined under para.46 of the Rehabilitation Scheme and not under principle of Muslim law prevalent at that time. It was next argued that the sole ground pleaded by the plaintiffs-respondents in their plaints was that they are not the real daughters of Ali Muhammad, deceased. In reply the learned counsel for the respondent argued that the question of jurisdiction was neither raised nor pleaded therefore the same cannot be taken up in the revisional jurisdiction. It was further argued that paragraph 46 was not relevant and the inheritance of Samand Khan was required to be determined according to the principle of Islamic Law of Inheritance prevalent at that time. The case-law cited by the learned counsel for the respondent was case titled Umar Draz Ali v. Khurshid Ali and others (PLD 1960 Lahore 834), Muhammad Siddique and others v. Muhammad Sharif and others (1992 SCMR 2260), Syed Abdur Rashid v. Pakistan through Secretary, Ministry of Refugees etc. (PLD 1962 SC 42). Mst.
Jameela Khatoon and others v. Sattar Baig and others (1997 CLC 1691).
5. I have considered the arguments of learned counsel for the parties and perused the record.
Firstly I will take up the question of jurisdiction. Although the question of jurisdiction was not raised at the initial stage but in the facts and circumstances of the case it being a question of law is allowed to be raised. I do not find any substance in the plea raised by the learned counsel for the petitioner that the jurisdiction of the trial Court was barred under section 22 read with section 25 of Displaced Persons (Land Settlement) Act, 1958. After the repeal of settlement laws through Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 the bar of jurisdiction of the Civil Court is no more available. Even otherwise Civil Court being a Court of plenary jurisdiction had the necessary jurisdiction to entertain and try the suit. It is clear from the plaint that the controversy between parties did not relate to any question falling within the ambit of Settlement Authorities. It was a suit for declaration and permanent injunction simpliciter whereby the status of the defendants-petitioners as real daughters of Ali Muhammad was challenged. The substantial question for determination was about the paternity of defendants-petitioners. This controversy could only be determined by the Civil Court. Accordingly I do not find any merit in the plea of the petitioners that Civil Court lacked jurisdiction.
6. The question as to the inheritance of defendants-petitioners was assailed on the sole ground that they were not the daughters of Ali Muhammad but they were borne to Mst. Muhammad Bibi from her previous husband. Both the Courts below after appraising the evidence held that the defendants-petitioners were the real daughters of Ali Muhammad. The mutation dated 26-2-1961 was not challenged in so many words by the plaintiffs-respondents it was merely pleaded that during the Martial Law the entries incorporated in the Revenue Record showing the defendants- petitioners as daughters of Ali Muhammad were factually incorrect. The question of inheritance of legal heirs and grand-children of Samand Khan, deceased was not mooted directly. The counter plea raised by the defendants-petitioners was that on the basis of will dated 8-3-1960 made by Samad Khan, deceased the property was mutated in favour of two grandsons and two granddaughters who are petitioners and respondents vide mutation dated 26-2-1991. As observed this mutation was not called into question by the plaintiffs-respondents specifically through suit but entries in the Revenue Record were challenged merely on the ground that defendants- petitioners were not the daughters of Ali Muhammad.
7. In view of the findings of fact by the two Courts below that defendants-petitioners were the real daughters of Ali Muhammad, the plea raised by the plaintiffs-respondents had lost ground and the consequence was that their suit was liable to be dismissed. I am of the view that question of determination of the rights of the parties as legal heirs of Ali Muhammad or Samad Khan, deceased was not before the Court and its decision in a disjunctive manner reflect a material irregularity. Even the question of inheritance was not properly looked into by the District Judge, Sargodha as the copy of the will was also brought on record through an additional evidence which find mention in the judgment of the Appellate Court, but was ignored.
' Consequently, I. Allow this revision petition set aside the judgment and decree, dated 15-12-1990 passed by the District Judge, Sargodha and dismiss the suit of the plaintiff-respondents.