Mr. Justice Muhammad Khalid Mehmood Khan in his judgment has decided the issue regarding inheritance claim and cancellation of mutation obtained through fraud and misrepresentation in Regular Second Appeal No. 12 of 2010.
1. The appellant filed a suit against the respondents for declaration and permanent injunction, claiming that his father Sohawa was the owner of land measuring 72-Kanals 13-Marlas detail of which is given in the plaint, Sohawa died on 11.9.1998 leaving behind the appellant his only son, respondent No.4 and predecessor in interest of respondents No.5 & 6 are the nephews of deceased Sohawa, the appellant claimed that he is the only son of Sohawa and is entitled for the entire land of Sohawa after his death being the sole legal heir. The appellant claimed that his father orally gifted the suit property to him in his life time but due to some misunderstanding his father become angry with him, he left his house and started to live with the respondents No.4 to 6 his real nephews. Respondent No.4 and predecessor in interest of respondents No.5 & 6 by taking undue benefit got attested a mutation of sale in their favour. The said mutation is an outcome of fraud and is not binding against the rights of the appellant. The appellant on 09.7.1995 filed the suit claiming that he is donee of suit property. The learned civil court dismissed the appellant’s suit on 24.9.1997.
The appellant assailed the judgment and decree of learned trial court dated 24.09.1997 through an appeal but subsequently the appellant withdrew the appeal with the permission to file a fresh suit. The learned appellate court allowed the appellant to withdraw the suit and file the fresh one subject to payment of Rs.500/- as cost. After that the appellant filed a suit for declaration that he is owner of the suit property being the legal heir of Sohawa and sale mutation No.47 allegedly executed by Sohawa in favour of respondents No.4 and predecessor in interest of respondents No.5 to 6 is illegal, without consideration and is a result of fraud and undue influence. The appellant also claimed that he is in possession of the suit property. The respondents contested the suit and claimed that they are bonafide purchasers for value against consideration, the sale mutation has been attested in their favour in the presence of witnesses. Further the appellant has prayed for cancellation of mutation. Plaintiff No.2 is not the widow of deceased, Sohawa has divorced plaintiff No.2 in his life time and she contracted second marriage. Sohawa with his freewill and against consideration of Rs.90,000/- sold the property to Muhammad Inayat and Bati. The respondents thus have prayed for dismissal of the suit.
Out of divergent pleadings of the parties, the learned trial court framed the following issues:
1. Whether the suit is not maintainable in its present form? OPD
2. Whether the suit has been incorrectly valued for the purpose of court fee and jurisdiction, if so, what is the correct valuation? OPD
3. Whether the suit is barred by time? OPD
4. Whether the plaintiff has not come to the court with clean hands? OPD
5. Whether the mother of the defendant No.7 has already contracted second marriage, if so, its effect? OPD
6. Whether the suit is not maintainable in view of preliminary objection No.8 in written statement? OPD
7. Whether the suit has been filed just to harass the defendants and the defendants are entitled for special costs? OPD
8. Whether the plaintiffs are owners of the suit land? OPP
9. Whether the mutation No.46 in favour of the defendant No.4 and Muhammad Inayat deceased is illegal against fact, without consideration and ineffective upon the rights of the plaintiffs? OPP
9-A Whether Sohawa had sold the suit land to defendant No.4 and Muhammad Inayat deceased by his own free consent and whether defendant No.4 and Muhammad Inayat predecessor in interest of defendants No.5 & 6 were bonafide purchasers for consideration and without notice? OPD
Both the parties adduced their respective evidence and vide judgment and decree dated 07.2.2006 the learned trial court decreed the suit. The respondents filed appeal against the judgment and decree dated 07.2.2006. The learned appellate court accepted the appeal on 05.1.2010 holding that the appellant has failed to prove the fact of gift, hence the present appeal.
2. Learned counsel for appellant submits that the learned trial court has wrongly held that the appellant is claiming right in the suit property as donee, the appellant’s earlier suit was dismissed as he withdrew the suit before the appellate court with the permission to file the fresh suit. The appellant filed a fresh suit for declaration and permanent injunction with possession against the respondents claiming that the appellant is the legal heir of deceased Sohawa and as such he is entitled for the estate of deceased Sohawa being his only son. Learned counsel submits that the learned appellate court has relied upon a statement of a witness who was admittedly minor at the relevant time. The earlier suit was withdrawn with the permission to file a fresh suit, hence the learned appellate court has erred in law while accepting the appeal. P.W-2 Karmalli has admitted in his cross examination that he affixed his thumb impression in the village and not before the Tehsildar. The other witness has specifically stated that he never affixed his thumb impression on the disputed mutation. Learned counsel for appellant thus submits that the learned appellate court has erred in law while accepting the appeal.
Further information regarding inheritance claim and cancellation of mutation obtained through fraud and misrepresentation can be solicited from AUJ LAWYERS. Feel free to contact us in case you need any clarification and/or require legal assistance regarding similar matters.