INAMULLAH vs BAKHT ZAMIN KHAN Paras 3 & 4 — 2021 CLC 2094 PESHAWAR-HIGH-COURT

Fields are extracted from the reported citation and judgment text. Where a detail is not stated in the record, it is not shown.

INAMULLAH VS BAKHT ZAMIN KHAN Paras 3 & 4---Civil Procedure Code (V of 1908), S. 11 & O.II, R.1 & 2---Petitioners being successors-in-interest of deceased (died in 1936) who was brother of predecessor-in-interest of defendants, contended that they had been deprived from their rights in the legacy of said deceased---Suit claiming right of 'inheritance'---Decreed by Trial Court---Reversed by Appellate Court---Earlier suit by petitioners filed under Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation, 1975 (PATA Regulation) which was dismissed on ground of limitation till the last forum of Home Secretary, had been instituted on the basis of a 'will' of 1932---Writ petition withdrawn with permission to have recourse to the civil Court---Fresh suit on different cause of action---Respondents referred to Riwaj Nama Swat---Validity---Pedigree table showed original predecessor of parties who had been survived by two sons: 'A' being predecessor of respondents / defendants, and 'B' being predecessor of petitioners/plaintiff---Said table not showing any issues or widow of 'B'---Said table had been prepared during the course of settlement in 1985/86---Relationship of two daughters and one widow had been admitted---Reason for their omission from pedigree table could not be explained by defendants---Petitioners had been litigating for their rights before forums established under PATA Regulation---No law/rules/regulations/customs and traditions having the sours of law depriving female legal heirs from right of inheritance---Two daughters and a widow of 'B' had been deprived of their right of inheritance--¬-Appellate Court allowed appeal on technical objection of bar of constructive res-judicata and limitation---Time period for bringing a suit in respect of a property where the same had been in possession of other was settled as 15 years---Principle of custom had been akin to the phenomena of adverse possession, but it had nowhere been stated that such a principle would also apply to the cases of inheritance---Such principle was not applicable to person exempted who would pay any share in produce or having other charge---Such exempted case had to be settled according to Sharia/Jirga decision---Home Secretary had levied a maintenance allowance of Rs. 400/- per annum on respondents and in favour of petitioners along with arrears---Liability had been fixed due to the petitioners' rights in property which had been in possession of defendants---Principle of bar of limitation in cases of adverse possession contained in Riwaj Nama Swat, would not apply---Predecessor of petitioners had claimed before Assistant Commissioner under PATA Regulation but that had been based on 'will' of 1932 and the same was found to be time barred and had not been referred to Jirga for its factual adjudication---Present suit was on basis of right of inheritance which could not be barred by invoking the principle of res-judicata/constructive res-judicata---PATA Regulations provided that provisions of Evidence Act, 1872 (Qanun-e-Shahadat, 1984) and Civil Procedure Code particularly Order II thereof had not been applicable to suits filed before adjudication forums established under said Regulation---Whatever property had been sold by 'A' deceased or his legal heirs had to be adjusted in their respective shares of inheritance and the vendees thereof should not be disturbed---High Court accepted the Revision petition by setting aside judgment of Appellate Court and further modified judgment/decree of Civil Court.

INAMULLAH vs BAKHT ZAMIN KHAN Paras 3 & 4 — 2021 CLC 2094 PESHAWAR-HIGH-COURT

Case information

Judgment text as reported

Other judgments reported in 2021 CLC