P L D 2002 Supreme Court 677

Present: Iftikhar Muhammad Chaudhry, Khalil-ul-Rehman Ramday and Faqir Muhammad

KHAIR DIN---Petitioner

versus

Mst. SALAMAN and others---Respondents

Civil Petition No. 1044 of 1999, decided on 20th May,'2002

(On appeal from the judgment/order dated 21-4-1999 passed by Lahore High Court, Multan
Bench, M~Itan in Civil Revision No.236-D of 1990).

(a) Islamic Law---

----Inheritance---Limitation---Brother had deprived his sisters fraudulently from the land

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 fol.

(b) Islamic Law--

----Inheritance---Possession---Heir in possession to be considered in constructive possession of

Hyuder Khan v. Chanda Khan 501 IC 691 quoted.

(c) Fraud---

---- No benefit can be derived by a person claiming proprietary rights in a particular property
based on fraudulent transaction---Fraud if established on record, is sufficient to vitiate most
solemn proceedings.

Ghias-ud-Din v. Iqbal Ahmad and 5 others PLD 1975 Lah. 780; La l and another v. Muhammad
Ibrahim 1993 SCMR 710; Government of Sindh through Chief Secretary and others v. Khalil
Ahmad and others 1994 SCMR 782; John Paul v. Irshad Ali and others PLD 1997 Kar. 267; Mst.
Sarwari Begum v. Atta-ur-Rehman 1997 CLC 1500 and Muhammad Yaqoob v. The State 1997
[Link] 1979 ref.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and Syed Abut Aasim Jafri;
Advocate-on-Record for Petitioner.
Abdur Rashid Qureshi, Advocate Supreme Court and Ch. Mehdi Khan Mehtab,
Advocate-on-Record for Respondents.

Date of hearing: 20th May, 2002.

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, J.---This petition for leave to appeal has been
instituted by petitioner against the judgment dated 21-4-1999 passed by Lahore High Court,
Multan Bench, Multan whereby civil revision filed by respondents has been allowed and the
judgments/decree dated 12-7-1987 and 15-11-1989 passed by Civil Judge 1st Class, Vehari and
Additional District Judge, Vehari respectively were set aside.

2. Precisely stating the facts of the case are that land measuring 157 Kanals and 7 Marlas situated
. in Village Sattar Shah, Tehsil Mailsi (hereinafter referred to as the "property in dispute")
originally belonged to Qabool Khan son of Mola Bukhsh Rajput. On his death the property in
dispute devolved upon his two daughters namely Mst.. Salaman and [Link] and a son Khair
Din. through Mutation dated 15-5-1957 [Link] and Mst. Gaman purported to have sold
their share in the property in dispute to Khair Din for a sale consideration of Rs.6,000. In
December, 1980 Mst. Salarnan and Mst. Craman filed a suit for declaration to the effect that they
are owners in possession of 1/2 share in the property in dispute and that mutation dated
15-5-1957 was illegal, void and ineffective upon their rights being the result of fraud as they had
never entered into and such transaction of sale. They also sought permanent injunction
restraining the petitioner from making an assertion on the basis of above mutation and
interference in the correction of mutation entries. It may be noted that Mst. Gaman died during
pendency of the suit; as such Chairagh etc. were impleaded as her legal heirs.

3. The suit was contested by petitioner both on factual and legal grounds.

4. On pleadings of the parties issues including Issue No.8 "whether the plaintiffs are equally joint
owners to the extent of half share of the suit land and the Sale Mutation No.305 dated 15 -5-1957
in favour of Khair Din defendant No. l was fictitious, without consideration, collusive and
fraudulent and thus, was ineffective upon the plaintiff's rights were framed. The parties were
directed to produce evidence pro and contra. After recording evidence learned trial Court found
Issues Nosy and 8 in favour of plaintiffs but while deciding Issue No.2 against respondents
dismissed the suit being barred by time. The respondents being aggrieved from the
judgment/decree of trial Court preferred appeal before Additional District Judge, Vehari. It is
pertinent to mention here that petitioner also preferred cross-objections against the finding of
trial Court on Issues Nos. l and 8. The Appellate Court vide judgment/decree dated 15-11-1989
dismissed both the appeal and cross-objections. The, respondents being dissatisfied from the
judgments/decrees of Courts below filed Civil Revision before Lahore High Court Multan
Bench, which has been allowed by learned Judge in Chambers vide impugned judgment dated
21-1-1999. It may be noted that learned Revisional Court after scanning the overall evidence
available on record concluded that petitioner has failed to establish that Mst. Salaman and Mst.
Gaman had sold their share in the property to him, therefore, limitation shall not run against
them because their status is of a co-sharer on the basis of earlier admitted mutation of
inheritance bearing No.9, dated 16th May, 1957. As such instant petition for leave to appeal
has been filed.

5. Learned counsel for the petitioner vehemently contended that suit filed by respondents was
hopeless!), barred by time because mutation under challenge was attested on 22nd September,
1959 whereas the suit was filed on 23rd June, 1986, as such learned. High. Court may not have
interfered in the concurrent findings of fact recorded by Civil Judge 1st Class, Vehari and
Additional District Judge, Vehari holding that the suit filed by respondents is barred by time.

6. It may be noted that as it has been pointed out hereinabove the parties inherited the property
from their predecessor-in-interest namely Qabool Khan and on his demise Inteqal-e-Warasat was
attested on 16th May, 1957 in favour of petitionar as well as Mst. Salaman and Mst. Gaman,
Case of the respondents as wet up in the plaint was that petitioner got transferred their snare on
his name fraudulently in their absence by producing two other ladies. The claim of the
respondents was repudiated. However, learned trial Court, Appellate Court as well as High Court
concurrently held that petitioner deprived his sisters fraudulently from the land which they
inherited from their father namely Qabool Khan, therefore, respondents shall be deemed to be in
constructive possession of the property and their rights arising out of inheritance of their
father Qabool Khan cannot be denied on limitation either under Article 142 or Article 144
of the Limitation Act, as it has been held by this Court the case of Ghulam Ali and 2 others
w. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1. Relevant para. therefrom is reproduced
hereinbelow :--

"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 case. The heir, to 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 expression repudiation of the claims
of the sisters by the brothers. Hyder Khan v. Chanda Khan (501 IC 691 (All.)."

Besides above observation it is also to be noted that petitioner adopted tactics to non-suit the
respondents in view of Mutation No.305 dated 15-5-1957 which he fraudulently got attested
from the name of respondents on his own name AMU been held by learned trial Court and
confirmed by the appellate as well as High Court vide impugned judgment. Undoubtedly no'
benefit can be derived by a person claiming proprietary rights in a particular property, based on
fraudulent transaction because it is well-settled C that fraud if established on record is sufficient
to vitiate most solemn proceedings. Reference in this behalf may be made to the judgments (1)
Ghias-ud-Din v. Iqbal Ahmad and 5 others PLD 1975 Lacy, 780, (2) Lai and another v.
Muhammad Ibrahim 1993 SCMR 710, (3) Guveruncm of Sindh through Chief Secretary and
others v. Khalil Ahmad and others 1994 SCMR 782, (4) John Paul v. Irshad Ali and others PLD
1997 Kar. .267, (5) Mst. Sarwari` Begum v. Atta-ur-Rehman 1997 CLC 1500 and (6)
Muhammad Yaqoob v. The State 1997 [Link] 1979.
M.B.A./K-56/S ??????????
Petition dismissed.