ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

 

Civil Revision Application No. S- 143 of 2019

Civil Revision Application No. S- 71 of 2021

 

 

Date of hearing

                        Order with signature of Judge.

 

                                                           

     For Hearing of Main Case

 

Date of Hearing:             13-09-2021

Date of Judgment:           13-09-2021

 

Mr. Muhammad Iqbal Memon, Advocate for Applicants in Civil R.A. No. S- 143 of 2019

Syed Muhammad Ali Shah Rizvi, Advocate for Applicants in Civil R.A. No. S- 71 of 2021

Mr. Zulfiqar Ali Naich, Assistant A.G-Sindh.

 

                              J U D G EM E N T

                   

Muhammad Junaid Ghaffar J.,      Through Civil Revision Application No. S-143 of 2019, the Applicants have impugned Judgment dated 29.04.2019, passed by the District Judge, Naushehro Feroze in Civil Appeal No.74 of 2019, whereby Judgment of the trial Court dated 02.02.2019, passed by 1st Senior Civil Judge, Naushehro Feroze in F.C. Suit No. 91 of 2017, through which the Suit filed by the Respondents was decreed, has been maintained. The other Civil Revision Application No.71 of 2021 has been filed against order of the same Appellate Court dated 27.3.2021 whereby the Application under Section 12(2) CPC for setting aside the same judgment of the trial court has been dismissed.

2.         Notice was ordered and the record reflects that on one hearing i.e. 13.01.2020, respondent No.2 Faiz Muhammad came in person and sought time to engage Counsel; but thereafter no Counsel was engaged and repeatedly notices have been sent, but nobody has turned up. Therefore, no further notice required.

3.         Today, I have been assisted by applicants’ Counsel in main Civil Revision Application and so also in connected Civil Revision Application. They both have argued that the impugned orders be set-aside and matter be remanded to the trial court as all the legal heirs were never arrayed as parties in the main Suit. They have further argued that insofar as all the legal heirs are concerned, they all are entitled for their respective share according to Muhammadan Law; however, the concerned Mukhtiarkar has refused to entertain those who were not joined as Defendants.

3.         It appears that the precise issue in dispute is amongst legal heirs; and the judgment of the trial Court as well as Appellate Court reflect that rights of the all legal heirs of Muhammad Ramzan, Muhammad Ilyas, Mir Muhammad and Muhammad Jam stand duly protected; therefore, their request for setting aside of the Judgments and remanding of the matter to the trial Court to join all the legal heirs as Plaintiffs and/or Defendants would not suffice. This would in fact prejudice all the legal heirs and matter would be prolonged for unnecessary issue.

4.         In the above circumstances and by consent, it is ordered as follows:

i).         Notwithstanding that all parties were not joined before the trial court; all Legal Heirs of the aforesaid deceased persons shall approach the Executing Court individually and/or jointly, as the case may be, and the Executing Court shall proceed further for transfer/Foti Khata Badal on the basis of report dated 13.04.2020, placed before learned District Judge, Naushehro Feroze by the Mukhtiarkar (Revenue) Bhiria vide No. Reader/279 of 2020 Bhiria, dated 13.04.2020, wherein list of legal heirs of three deceased persons, namely, Muhammad Jam, Muhammad Ramzan and Muhammad Ilyas has been finalized. It is needless to mention that legal heirs of Mir Muhammad i.e. Plaintiff in the Suit shall also be entitled for their respective share.

ii).        The Executing Court shall ensure that as and when the Execution Application is filed, the same is proceeded expeditiously in the light of the judgment of the trial court as above.

With these observations, both Civil Revision Applications stand disposed of.

                                                         JUDGE

         

 

Ahmad