2024 CLS 13
Other citations: 2022 LHC 8152 = 2024 CLC 106
[Lahore High Court]
Before Muhammad Sajid Mehmood Sethi, J
Allah Ditta—Petitioner
versus
Ali Shah (deceased) through Legal Heirs and others—Respondents
Civil Revision No. 1095-D of 2010, heard on 8th December, 2022.
HEADNOTES
(a) Limitation —
— No illegal act or wrong entry can be legitimized with efflux of time howsoever long it might be. [Para. No. 8]
(b) Limitation —
— No limitation would run in the matter of inheritance having recurring cause of action — Party having its right in the inherited property can claim the same at any time — Any transaction found to be result of misrepresentation cannot be protected on the sole score of limitation as it does not apply in the case of inheritance as barrier of limitation is no more a hurdle in the enforcement of rights of inheritance unless a party is shown to be guilty of gross negligence and abandonment of his / her rights — Entries in the revenue record afford fresh cause of action to the plaintiff and adverse entries if allowed to remain unchallenged do not extinguish right of a party against whom such entry had been made. [Para. No. 8]
Mst. Janat Bibi through L.Rs. v. Aslam Khan and 13 others (2017 CLC 436), Nusrat Abbas v. Nighat Parveen and others (2018 CLC 1115) and Muhammad Amin through Legal Heirs and 2 others v. Mst. Ashraf Bibi through Legal Heirs and another (2018 YLR 2524) referred.
(c) Administration of justice —
— No one can be allowed to approbate, reprobate or otherwise, blow hot and cold in one breath. [Para. No. 7]
Mian Muhammad Akram and Ray Moeed-ud-Din, Advocates for petitioner.
Mian Mumtaz Ahmad Zahid, Advocate for respondent no.1.
Respondent No. 1B and 3 ex parte.
Nemo for the remaining respondents.
Date of hearing: 8th December, 2022.
JUDGMENT
Muhammad Sajid Mehmood Sethi, J:—This revision petition is directed against judgments & decrees dated 06.02.2010 & 19.06.2010, passed by learned Civil Judge and Additional District Judge, Burewala, respectively, whereby petitioner’s suit for declaration was concurrently dismissed.
2. Brief facts of the case are that petitioner filed a suit for declaration regarding his share being legal heir of Mst. Fazal Noor out of her share from the estate of her brother Sakhi Muhammad by specifically challenging mutation No.820 dated 15.09.1990 and subsequent mutation No.821 dated 15.09.1990. Respondent No.1 contested the suit by filing written statement. Out of the divergent pleadings of the parties, following issues were framed:-
ISSUES
1. Whether the mutations No.820 and 821 Dt: 15.09.1990 are against law and facts, void, without consideration, inoperative upon the rights of the plaintiff and liable to be cancelled and the plaintiff being the son of Fazal Noor, is legal heir of Sakhi Muhammad and the Shajra Nasab drawn on mutation No.820 Dt: 15.09.1990 was against law and facts? OPP
2. Whether the plaintiff has no cause of action or locus standi to file this suit? OPD
3. Whether the suit of the plaintiff is time barred by law? OPD
4. Whether the suit of plaintiff is false, frivolous based on malafide intentioned has been filed just to harass the defendants and defendants are entitled to special costs u/s 35-A CPC? OPD
5. Whether the proper court fee has not been affixed? OPD
6. Relief.
Learned Trial Court, after recording evidence and hearing arguments of the contesting parties, proceeded to dismiss the suit vide judgment & decree dated 06.02.2010. Aggrieved by this judgment, petitioner filed an appeal before the leaned Additional District Judge, who vide judgment & decree dated 19.06.2010, dismissed the appeal. Hence, instant revision petition.
3. Learned counsel for petitioner submits that both the impugned judgments & decrees are an outcome of misreading and non-reading of evidence and misconstruing of the law applicable on the subject. He adds that both the learned Courts below while passing impugned decisions have committed illegality and material irregularity by ignoring the material aspect of the matter that no limitation runs in inheritance matters.
4. Whereas, learned counsel for respondent No.1 defends impugned decisions by contending that learned counsel for petitioner has failed to pinpoint any illegality or legal infirmity therein.
5. Arguments heard. Available record perused.
6. Record shows that petitioner filed suit for declaration against respondents with the averments that petitioner being real son and sole legal heir of Mst. Fazal Noor (deceased), who is real sister of deceased Sakhi Muhammad, is entitled to his share in the inheritance of said Sakhi Muhammad; that Shajrah-e-Nasb as well as mutation Nos.820 & 821 dated 15.09.1990, being false and frivolous, against the law and facts, result of connivance, are liable to be cancelled; that likewise subsequent entries in revenue record are also liable to be rectified.
7. It is also evident from the evidence brought on record that name of petitioner is reflecting in the succession certificate Exh.P2 for receipt of due debts of deceased Muhammad Zaman son of Fazal, another brother of petitioner’s mother. Jamabandi for the year 1997-98 also shows petitioner’s name as owner of land / estate left by deceased Mst. Fazal Noor. Petitioner could not have been deprived of his lawful share out of the share of his mother from the estate of her deceased brother Sakhi Muhammad as it is well-settled principle of law that no one can be allowed to approbate, reprobate or otherwise, blow hot and cold in one breath. In these circumstances, claim of petitioner was required to be determined by taking into consideration all relevant facts and documents brought on record rather than deciding the lis on technical grounds.
8. It is noticeable that suit of the petitioner being a matter of inheritance was within time. No illegal act or wrong entry can be legitimized with efflux of time howsoever long it might be. Mst. Fazal Noor was real sister of Sakhi Muhammad deceased and petitioner Allah Ditta being real son and sole legal heir of said Mst. Fazal Noor has claimed his share in aforesaid capacity in the inheritance left by his maternal uncle. No limitation would run in the matter of inheritance having recurring cause of action. Party having its right in the inherited property can claim the same at any time. Any transaction found to be result of misrepresentation cannot be protected on the sole score of limitation as it does not apply in the case of inheritance as barrier of limitation is no more a hurdle in the enforcement of rights of inheritance unless a party is shown to be guilty of gross negligence and abandonment of his / her rights. Entries in the revenue record afford fresh cause of action to the plaintiff and adverse entries if allowed to remain unchallenged do not extinguish right of a party against whom such entry had been made. Reliance is placed upon Mst. Janat Bibi through L.Rs. v. Aslam Khan and 13 others (2017 CLC 436), Nusrat Abbas v. Nighat Parveen and others (2018 CLC 1115) and Muhammad Amin through Legal Heirs and 2 others v. Mst. Ashraf Bibi through Legal Heirs and another (2018 YLR 2524).
9. It appears that learned Courts below have not kept in view the above material aspects of the matter while dismissing petitioner’s suit, thus, impugned judgments & decrees are unsustainable in the eye of law.
10. In view of the above, instant revision petition is allowed and impugned judgments & decrees are set-aside. Consequently, petitioner’s suit is decreed.
Petition allowed