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Civil Revision No. 262/D of 1986/BWP, decided on 6th July, 1986.

‑‑‑S. 115‑‑Revision‑‑Widow of last male owner succeeding to land as limited owner gifted portion of land in favour of her brothers (petitioners) who got the land mutated in their favour in 1974 after death of the widow‑‑Respondent who were nephews of the last male holder challenged the gifted mutation by filing a declaratory suit‑‑Suit was decreed and respondents were found entitling to inherit 1/8 share of widow in land as her heirs‑‑Decree unsuccessfully challenged in appeal‑‑Petitioners contending that they were entitled to more share of land in dispute than they had which devolved upon their father through his issueless widowed sister‑‑Case of petitioners before Court below was that two sons of land owner were alive at time of his death‑‑Record also silent as to what exact area was left by deceased at time of his death‑‑Case set up by petitioners in their written statement before Court below was not known as copy of written statement was not filed and copies of various documents exhibited on trial Court's record were also not filed‑‑Contention of petitioners as to their claimed entitlement over land in dispute not sustainable on available record‑‑Contention repelled.

Aswar Muhammad etc. v. Sharif Din etc. 1983 S C M R 626 ref .

‑‑‑S . 115‑‑Revision‑‑Petitioner claiming more share than they had in land in dispute, continued to enjoyment thereof for a long time‑‑A just order had come to be passed between parties‑‑Interference declined in revision.

Messrs Ghulam Farid Muhammad Latif and others v. The Central Bank of India Limited, Lahore P L D 1954 Lah. 575 and Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97 rel.

Qazi Muhammad Nazir for Petitioners.

In 1975, Ahmad Bakhsh respondent No.l, filed a declaratory suit to claim title in 100 Kana1S 19 Marlas of agricultural land left by Allah Bakhsh son of Sultan due to his death taken place some 40 years before. It was stated in the plaint that upon the death of Allah Bakhsh two mutations of inheritance were sanctioned in favour of his widow Mst. Almo in the years 1931 and 1935 with regard to her limited estate in the land in the year 1942 she gifted away 52 Kanals thereof in favour of her two brothers, Karam defendant No.l and F,lahi Bakhsh, father of Allah Wasaya defendant No.2, but now, upon the death of Mst. Almo having taken place five years before, the defendants had got Mutation No. 39, dated 22‑12‑1974 sanctioned in their favour despite their not being entitled to any share in the land which he alone was entitled to get. Suit was contested by the defendants on merits. They also raised a number of other pleas like estoppel and limitation in defence thereof whereupon necessary issues were settled.

2. Originally there were only two defendants impleaded in the suit but during its pending Allah Wasaya defendant No.2 died and Rahim Bakhsh and Mst. Azmat, his son and daughter respectively, were impleaded as defendants Nos. 2 and 3. In addition to them, Mst. Pathani and Mst. Bhiranwan, present respondents Nos. 4 and 5, were also joined as defendants Nos. 4 and 5. On the basis of evidence led by the parties, trial Court decided all the issues in favour of the plaintiff. It found that only limited estate had devolved upon Mst. Almo and the mutations of gift and inheritance Wbre illegal, void and ineffective against the rights of the plaintiff who was held to be a nephew of Allah Bakhsh deceased and entitled to 7/16th share of his estate. Defendants Nos. 4 and 5 were also held entitled to the other 7/16th share thereof as nieces of the deceased and only 1/8th share thereof was held liable to be inherited by the brothers of Mst. Almo.

3. Three principal defendants filed an appeal there against in the District Court which has been dismissed by the learned District Judge by upholding the findings of the trial Court and the shares of the parties determined by it. They have now come up to this Court on revision.

4. Contention raised in support hereof is that whereas the two Courts below had found Allah Bakhsh to have died issueless, they have erred in considering Mst. Almo to be entitled only to 1/8th share of the estate of her deceased husband Allah Bakhsh and not to the 1/4th share of it which would have resultantly devolved upon the petitioners. This contention is not well‑conceived in the presence of the statement of Rahim Bakhsh, one of the petitioners, made as D.W. 4, to the effect that after the death of Allah Bakhsh his widow and sons had got his land. Learned trial Judge appears to have accepted this statement as correct in holding that Mst. Almo was entitled to only the 1/8th share of inheritance. Again, in para. 2 of the grounds of their appeal filed below, the petitioners have reiterated that Allah Bakhsh had two sons who died after his death. However, during the hearing of the appeal, the only point urged by them was to the effect that another two issues with regard to the limited estate of Mst. Almo and existence of custom were in need of being settled but learned District Judge was not persuaded to accept this contention which he repelled with reference to Aswar Muhammad etc. v . Sharif Din etc. 1983 SCMR 626. He also observed in para. 9 of his judgment that no other point had been urged before him.

5. Learned counsel has half‑heartedly urged also that a decree in favour of the respondents for 3/4th share of the land and not 7/8th thereof should, have been passed in view of the fact that Allah Bakhsh had died issueless. As noticed above, it was their own case of the petitioners in the District Court that two sons of Allah Bakhsh were alive at the time of his death and had died later, therefore, I am not prepared to give effect to a new case, as has been set up for the petitioners at this stage. More particularly so, because it is not ascertainable from the present record as to what was the exact area of the land actually left by Allah Bakhsh at the time of his death and how did it devolve and much-less is it possible to ascertain as to what A was the case set up by the petitioners in their written statement, a copy whereof has not been filed in this civil revision wherein even the copies of the various documents exhibited on the trial Court's record have not been produced contrary to the requirement of section 115 of the C . P. C . where-under this civil revision is liable to be decided on its own record, without sending for that of the trial Court. On the present record, forenoted contention of the petitioners cannot be sustained and is accordingly repelled.

6. Moreover, the petitioners have by now already enjoyed 52 Kanals of land for more than 44 years against their entitlement, at the maximum of merely 24 Kanals 4 Marlas which is being claimed for them with B reference to the 1/4th share determinable for Mst. Almo, whereof 12 Kanals 2 Marlas of land has already been adjudged in their favour by the two Courts below and, in law, the gift of 52 Kanals of land, being a gratuitous allenation, had even ceased to exist on and from the death of Mst. Almo which took place more than 12 years before but the petitioners have all along continued in enjoyment of half of the land in suit. As such, a just order has come to be passed between the parties which I am not persuaded to vary at this stage and, respectfully following the rule of law laid down in Messrs Ghulam Farid Muhammad Latif and others v. The Central Bank of India Limited, Lahore P L D 1954 Lah. 575 and Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies P L D 1964 SC 97, I dismiss the civil revision in limine.

M. Y. H. Petition dismissed.

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