2013 Y L R 2395

[Peshawar]

Before Mazhar Alam Khan Miankhel and Musarrat Hilali, JJ

NAWAZ KHAN---Petitioner

Versus

KALEEM KHAN and 14 others---Respondents

Writ Petition No.2318 of 2011, decided on 13th June, 2013.

(a) Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), O.VII, R.11---Limitation Act (IX of 1908), Art.
120---Constitution of Pakistan, Art.199---Constitutional petition---Suit for declaration---
Inheritance--- Limitation---Rejection of plaint---Plaintiff filed suit for declaration wherein
defendants moved an application under O.VII, R. 11, C.P.C. which was dismissed by the Trial
Court but the same was accepted by the Appellate Court---Validity---Inheritance mutation of the
deceased was attested in the name of his one son excluding the other legal heirs---Question of
ouster in the inheritance had to be considered in the light of evidence to be recorded---Trial
Court had rightly dismissed the application, whereas, the Appellate Court had accepted the
revision petition illegally and without jurisdiction---Constitutional petition was accepted and
impugned order was set aside.

(b) Specific Relief Act (I of 1877)---

----S.42---Limitation Act (IX of 1908), Art.120---Suit for declaration---Limitation--Question of

limitation, being mixed question of fact and law would need evidence to be resolved.

2013 SCMR 299; 2008 SCMR 1425 and 2009 CLC 1276 distinguished.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.
 Kundal Khan Khalil for Petitioner.

Abdul Sattar Khan for Respondents.

Date of hearing: 13th June, 2013.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---Petitioner Nawaz Khan has filed the
present Constitutional Petition against the judgment/order dated 25-4-2011 of learned Additional
District Judge-XI, Peshawar, whereby, the revision petition of respondents against the
judgment/ order dated 10-11-2010 of learned Civil Judge-XXVI, Peshawar was accepted.

2. Resume of the facts forming background of the case is that petitioner filed a suit for
declaration, permanent injunction and possession through partition against the respondents in
respect of the property (fully described in the heading of the plaint) to the effect that petitioner
and respondents Nos.29 to 60 being legal heirs of Mst. Fatima daughter of Haider Khan are
owners of the suit property to the extent of their share and the Revenue Record on the basis of
Tamleek Nama by Haider Khan in favour of respondents Nos.1 to 27 is illegal and fake and
having no legal effect over the rights of petitioner.

3. The respondents were summoned to embrace the allegations levelled in the suit and the
contesting respondents Nos.1 to 7 and 9 to 29 instead of filing written statement, filed an
application under Order VII Rule 11, C.P.C. for rejection of the plaint. Learned trial Court after
receiving replication and hearing the learned Counsel for the parties, dismissed the application
ibid of the said respondents vide order dated 10-11-2010. Dissatisfied with the same, respondents
agitated the matter in revision before the learned Additional District Judge-XI, Peshawar, which
was accepted vide judgment and decree dated 24-11-2011. Aggrieved of the same, the petitioner
has filed the present writ petition.

4. Learned counsel for the petitioner contended that the petitioner is entitled to his due share
in the legacy of Haider Khan and there is no time limitation in inheritance matters. He further
argued that inheritance mutation of propositus of the parties in favour of his son alone by
excluding the other legal heirs is a question which cannot be determined without recording of pro
and contra evidence, so, rejection of plaint even without filing of written statement by Revisional
Court is the result of an unlawful exercise of jurisdiction which is liable to be set aside.

5. As against that, learned Counsel for respondents while defending the impugned order of
Revisional Court contended that petitioner has no cause of action as he himself admitted in the
plaint that Haider Khan had executed the aforesaid tamleek nama in favour of respondents Nos.1
to 27; that the suit of the petitioner is time-barred under Article 120 of the Limitation Act
because of the reason that the petitioner has challenged the Revenue Record pertaining to the
years 1945 and 1951 and their predecessors during their lives did not question the said entries,
therefore, learned Revisional Court has rightly accepted the revision of the respondents and
rejected the plaint of the petitioner under Order VII Rule 11, C.P.C. He placed reliance on 2013
SCMR 299, 2008 SCMR 1425 and 2009 CLC 1276.
6. We have heard the learned counsel for the parties and perused the entire record with their
valuable assistance.

7. Main stance of learned counsel for the respondents is that the suit of the petitioner is
time-barred under Article 120 of the Limitation Act and the lady (the predecessor of present
petitioner) herself failed to challenge the entries of said mutations during her life time. No doubt,
there is nothing on the record which could reflect that the lady herself ever filed any suit in her
life time but we have before us a matter involving question of inheritance. So, the question
would be whether that lady and then her legal heirs could be deprived of their rights of
inheritance ordained by Shariah Mohammadi on this score alone specially in a summary manner
without giving them a chance to establish their rights by producing evidence and also to resolve
as to whether question of limitation would be an impediment and stumbling block in their way to
seek their such right again at such an initial stage when the respondents have not filed their
written statement and led their evidence. No doubt, the judgments of the honourable Supreme
Court cited at the bar deal with above referred questions but all the said questions therein were
resolved after recording of evidence and full fledged trial. So, the judgments cited at the bar
would not help them out at least at this stage. The question of limitation, being a mixed question
of fact and law needs evidence to resolve and each case has to be seen in its own facts and
circumstances. We have the landmark judgment of the apex Court rendered in the case of
Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1) and many
more, wherein, these questions were dealt with in detail and in the case of Ghulam Ali supra, it
was even held that relinquishment of share in inheritance by a lady would be against public
policy and the inheritance opens just after the death of a person without intervention of State
organs. This observation alone would make the question of Limitation to be established by
recording of evidence.

8. While reverting back to the facts and circumstances of the case in hand, it appears that
there is a gift Mutation bearing No.1380 dated 25-7-1951 and then reversion of this property
again to the original owner Haider Khan, the predecessor of the parties and then inheritance
mutation of said Haider Khan bearing Mutation No.1630 dated 26-8-1961 was attested only in
the name of his one son Hussain Khan by excluding the other legal heirs, including the
predecessor of present petitioner is the question, which could only be resolved after recording of
evidence and thereafter, the question of ouster, if any, in the inheritance has to be considered in
the light of evidence to be recorded, therefore, learned trial Court has rightly dismissed the
application of the respondents under Order VII, Rule 11, C.P.C., whereas the learned Revisional
Court without keeping in mind this legal aspect of the case has accepted the revision petition of
the respondents illegally and without justification.

9. In this view of the matter, we accept this petition, set aside the impugned order dated 25-
4-2011 of learned Revisional Court and restore that of learned trial Court with no order as to
costs.

AG/375/P Petition accepted.