2014 Y L R 293
[Balochistan]
Before Muhammad Noor Meskanzai, J
GHOUS -UD-DIN
and 5 others ---Petitioners
Versus
RASHIDA and 3 others ---Respondents
Civil Revision No.167 of 2013, decided on 9th September, 2013.
Specific Relief Act (I of 1877 )---
----S. 42 ---Suit for declaration ---Inheritance ---Contention of defendants was that plaintiffs had
gifted their shares in their favour ---Suit was decreed concurrently ---Validity ---No written deed in
support of contentions of defendants was available ---Defendants had not been able to prove their
stand and stance through any cogent, coherent, confidence inspiring and tangible evidence ---One
of the plaintiffs gifted her share to one of the defendants during pendency of suit which was
accepted by the part ies---Acceptance of such gift had nullified the assertion of earlier gift, as, if
the contention of the defendants qua the earlier gift was correct and true then what was the
occasion for the subsequent gift without reference to any earlier gift ---Successi on would open
the moment, the propositus died and the legal heirs would enter into possession of their 'shari'
share without interruption of any authority/court ---Plaintiff could not be deprived of her legal
share simply on the ground that defendants had r aised new constructions ---Defendants had raised
construction on their own risk and costs ---Female shareholder could not be deprived of her 'shari'
share on flimsy, concocted and baseless pretext; rights of women had been protected ---No
misreading or non -reading of evidence was found nor there was any illegality or irregularity in
the impugned judgments ---Revision was dismissed in limine.
Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Mst. Suban v.
Allah Ditta and others 2007 SCMR 635 and Sher Khan and 2 others v. Alloo PLD 1973 Quetta
18 rel.
Malik Azamatullah Kasi and Wajahat Khan Ghaznavi for Petitioners.
Date of hearing: 15th July, 2013.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---The petitioners have called in question the legality
and propriety of the judgment and decree dated 21st June, 2013 passed by Additional District
Judge -III, Quetta, whereby their appeal was dismissed and the judgment and decree dated 17th
March, 2012 passed by the Civil Judge -III, Quetta was upheld.
2. Facts in brief are that the respondents Nos.1 and 2 filed a suit for declaration, partition,
possession, injunction, cancellation/correction of mutation entries and mesne profit against the
petitioners and respondent No.3 in the court of Civil Judge -III, Quetta. It was the case of the
plaintiffs that the plaintiffs and respondents Nos.1 to 6 are the children, whereas the defendant
No.7 is widow of late Jamal -ud-Din, who left properties bearing No. Khewat No.33, Khatooni
Nos.54 to 59, comprising of 9 Q itas, measuring 7596 square feet, situated at Mohal and Mouza
Ward No.52, Tappa Urban -4, Tehsil and District Quetta and the parties are entitled for their due
share.
3. The petitioners/defendants con -tested the suit by way of filing, written statement, w herein
they not only admitted the relationship also admitted that the property in question belonged to
their propositus, but nevertheless the plaintiffs have gifted their share to petitioners Nos. 1 to 3,
therefore, requested for dismissal of the suit. The trial Court framed as many as four issues and
the parties thereafter adduced their respective evidence. During the pendency of proceedings, the
plaintiff No.1/respondent No.1, through a compromise deed dated 4th February, 2010, gifted her
share to respond ent No.3 Shams -ud-Din and to such extent a preliminary decree was drawn and
the same has attained finality. The case of the plaintiff/respondent No.2 was proceeded with,
which culminated in passing of the decree dated 17th March, 2012. The petitioners feel ing
aggrieved filed an appeal before the learned District Judge, Quetta, which was transferred to the
file of' Additional District Judge -III, Quetta. The learned appellate Court after hearing the parties
dismissed the appeal, hence this petition.
4. The learned counsel for the petitioners contended that both the Courts below illegally,
unlawfully and without any justification decreed the suit filed by respondent/plaintiff No.2
despite of the fact that there was no evidence available on record to justify t he drawing of a
decree in favour of the plaintiff No.2/respondent No.2, but both the Courts below failed to take
into consideration this aspect of the case. Learned counsel stressed that the petitioners proved
their version by producing confidence -inspirin g and tangible evidence, but both the Courts below
without any justification omitted from consideration the material available on record and without
any rhyme or reason decreed the suit. Similarly, the appellate court without going through the
record dismi ssed the appeal filed by the petitioners. Learned counsel emphasized that both the
Courts below wrongly held that the respondent/plaintiff No.2 is entitled to receive her legal and
Sharai share.
5. I have considered the arguments advanced by the learned counsel for the petitioners and
have gone through the record of the case. Admittedly, both the parties are descendants and
successor -in-interests of late Jamal -ud-Din Kakar and no doubt, the property in question also
belonged to the predecessor in interest of the parties. The only exception is the petitioners have
dismantled and demolished the earlier structure and have raised some new construction over the
property under dispute. The petitioners/defendants do not dispute the relationship but have came
forw ard with the plea that the respondents/ plaintiffs have gifted their share to the petitioners.
There is no cavil with the fact that there is no written deed in support of the contentions of the
petitioners and to support their version, the petitioners have mainly relied upon ocular testimony.
In my considered view, the petitioners have not been able to prove their stand and stance for
multiple reasons. Firstly because during the pendency of the suit, the respondent/ plaintiff No.1
gifted her share to petiti oner No.3 through a compromise deed, which was accepted by the
parties. The acceptance of this gift nullifies the assertion of earlier gift, because, if the contention
of the petitioners qua the earlier gift was correct and true, then what was the occasion for the
subsequent gift without reference to any earlier gift. Secondly, as per the divine law, the
moment, the propositus dies, the succession opens and the legal heirs enter into possession of
their 'sharai' share without interruption of any authority/c ourt etc. Thirdly, the petitioners have
utterly failed to produce any cogent, coherent, confidence -inspiring and tangible evidence in
support of their plea. Fourthly, the respondent/plaintiff No.2 could not be deprived of her legal
share simply because of the new construction raised by the petitioners by way of demolishing the
earlier structure, as it would neither entitle the petitioners to any additional interest or right to the
property nor would constitute a ground for depriving of a heir of his/her res pective share,
particularly so when the new construction has been raised without permission of respondent
No.2. The trial Court has rightly observed that the petitioners/defendants have raised
construction on their own risk and costs. Legally, the subseque nt construction would be deemed
to have been raised by the concerned party at his own risk and cost. Fifthly, under Islamic law, a
female shareholder cannot be deprived of her sharai share on such flimsy, concocted and
baseless pretext and the rights of th e women have been protected. By holding the view, I am
fortified by the dictum laid down in the judgment titled as 'Ghulam Ali and 2 others v. Mst.
Ghulam Sarwar Naqvi', reported in PLD 1990 SC page 1, relevant observations wherefrom read
as under: --
(A) "It is not for the first time that it is being, so held. Even earlier commentators on Islamic
Law (its inheritance branch in particular) have indicated the same approach with reference to
some decided cases. The heir in possession was considered to be in constructive possession of
the property on behalf of all the heirs in spite of his exclusive possession, e.g., the possession of
the brothers would be taken to be the possession of their sisters, unless there was an express
repudiation of the claims of the sisters by the brothers. Hyder Khan v. Chanda Khan (5011 C 691
(All).
It is again to be emphasised that on principle, in Islamic law it is not possible to accept
the claims of co -owners/inheritors when they are males and females together, the former se eking
a right on the basis of adverse possession and ouster against the latter. The comments and
precedents referred to above are only illustrative of a principle; which has to be restated more
clearly.
The pleas of estoppel, waiver and adverse possessi on can also be now easily repelled in
the light of the foregoing discussion of the Islamic principles. The petitioners being the brothers
of the respondent were required by the Islamic law to protect the property rights of their sister if
ever they came in to possession of the land in any capacity. Here admittedly they alleged
voluntary relinquishment, therefore, even otherwise the well -known rules for establishing
adverse possession, particularly the one relating to hostility, would not be established. But as
stated earlier one who is enjoined with the protection of the other's property cannot lay claim
adverse to the interests and rights of that other one who owns it. The Saying of the Holy Prophet
(P.B.U.H.) has been quoted which enjoins upon the menfolk t o protect property rights of their
womenfolk Under the Islamic dispensation, therefore, in the present case there could be no claim
of adverse possession. Same would apply to the estoppel and waiver. Moreso on account of rule
of public policy and the princ iple of devolution of the property in respondent's favour
immediately on the death of her father (regardless of the fact whether she did any other act to
exercise control over it) would negate the plea of estoppel or waiver. The plea of ouster, to say
the least, is untenable; because, its essential component, the plea of adverse possession, is
obviously not available against a sister what to talk of her ouster.
This case also required similar, if not better, treatment. The scope of rights of inheritance
of females (daughter in this case) is so wide and their thrust so strong that it is the duty of the
Courts to protect and enforce them, even if the legislative action for this purpose of protection in
accordance with Islamic Jurisprudence, is yet to take i ts own time."
B. Further the view finds support from the case title `Mst. Suban v. Allah Ditta and others'
reported in 2007 SCMR 635, relevant observations read as under: --
"11. It is a proposition too well -established by now that as soon as someone w ho owns
some property, dies, the succession to his property opens and the' property gets automatically
and immediately vested in the heirs and the said vesting was not dependent upon any
intervention or any act on the part of the Revenue Authorities or any other State agencies. It is
also an established proposition that a mutation did not confer on anyone any right in any property
as the Revenue Record was maintained only for realization of land revenue and did not, by itself
confer any title on anyone. It may also be added that efflux of time did not extinguish any rights
inheritance because on the death of an owner of property; all the co -inheritors, immediately and
automatically, became co -sharers in the property and as has been mentioned above, limitatio n
against them would start running not from the time of the death of their predecessor -in-interest
nor even from the date of mutation, if there he any, but from the dale when the right of any such
co-sharers/coinheritors in such land was denied by someone.
12. Having thus, examined all aspects of the matter, we find that the learned Appellate
Judge was right in holding that the plaintiff heirs of the said Gharu could not have been non -
suited on account of limitation; that the onus lay very heavily on Mst . Ghulam Fatima to
establish relinquishment, by the other heirs, of their rights in the property in question which
burden she had not been able to discharge, inter alia, because the daughters in question of Gharu
were minor at the time of the alleged famil y settlement and also because mutation in question
bearing No.86 proceeded on dishonest and incorrect premises i.e. Gharu having died issueless
and Mst. Fatima being his only surviving heir.
18. Consequently, in view of the provisions of rule 4 of Order XLI of the Code of Civil
Procedure which envisage grant of relief even to the non -appealing parties and also in discharge
of the obligations cast on this Court to do complete justice, we declare and direct: -
(a) that all those persons, who qualified as heirs of Gharu as per the Sunni faith, at the
time of his death in the year 1942, were entitled to their respective Sharai shares in each and
every inch of land left behind by the said Gharu;
(b) that the said estate would consequently devolve upon all such heirs in accordance
with the said shares are that,.
(c) the District Officer. (Revenue) of Bahawalnagar shall identify/ cause to be identified
all such heirs of the said Gharu and then ensure entering and attestation of mutation/mutations of
inher itance of the said entire estate of Gharu in the name of the said heirs or in the name of the
heirs of the said heirs if any such heirs be dead by now. "
C. In case titled as 'Sher Khan and 2 others v. Alloo' reported in PLD 1973 Quetta 18,
wherein it ha s been observed as under: --
"It was argued that this was the main ground which weighed with the mind of the Majlis -
e-Shoora but they have ignored the fact that prior to the declaration of the land in dispute by the
Government of West Pakistan to be its owner, it was Tayab predecessor -in-interest of the
appellants who was actual owner in possession of the land and later on Government of West
Pakistan had become by operation of the law its owner, this by itself did not affect in any way
the right of the ap pellants to the enjoyment and possession and its entitlement. There is sufficient
force in the arguments of counsel for the appellants because the Majlis -e-Shoora was not called
upon to pass such a sweeping judgment that the women had no right in the circu mstances of this
case even as the Maoroosi Bazgar by operation of law."
6. Besides, the denial of the right in the property of the females is now a crime in our
society and has been made punishable.
Keeping in view the peculiar facts as discussed here inabove at the strength of dictum laid
down by the Hon'ble Apex Court qua the share of female heir, I have no doubt in my mind that
there is no misreading, non -reading of evidence nor for that matter there is any illegality or
irregularity in judgments imp ugned. I am conscious that legally an aggrieved party is entitled to
call in question the validity and propriety of an order, judgment and a decree of a lower forum
before the higher forum, but in my opinion, the filing of this petition is another attempt and
pretext to linger on the proceedings in order to further deprive the respondent No.2 from her
vested right and the fruit of the decree passed in her favour, therefore, I do not see any plausible
reason to admit this petition to regular hearing, thus, t he petition is dimsised in limine.
AG/100/Bal Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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