ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
C.P.No.D-607 of 2010.
DATE ORDER WITH SIGNATURE OF JUDGE
3. For hearing of MA 3241/2010.
19.05.2010.
Mr. Anwar Jamal Advocate for the petitioner.
Mr. Allah Bachayo Soomro Additional Advocate General Sindh
Mr. Abdul Jabbar Hashmi Maher Advocate for the Respondent No.1(a).
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SAJJAD ALI SHAH J: Through this petition, the Petitioner has assailed the order of Ist Additional District Judge Mirpurkhas passed on 27.04.2010 in Civil Revision No.11/2009 whereby the learned Additional District Judge while dismissing his revision, maintained the order of the Ist Senior Civil Judge, Mirpurkhas dated 08.09.2009, whereby the Petitioner’s application u/o 21 rule 99 CPC was dismissed.
2. Learned Counsel for the Petitioner has contended that the property bearing No.D-331 Block VIII Satellite Town Mirpurkhas was originally owned by one Mst. Bashiran, who died on 30.05.1983 and after her death, Muhammad Ibrahim got the suit property mutated in his name by asserting to be the only legal heir and after his demise, one Mst. Waheedan filed a suit bearing No.62/1988 claiming to be the sister of Mst. Bashiran and asserted that Muhammad Ibrahim by suppressing facts got property mutated in his name as she being the sister of Mst. Bashiran was entitled to 50% share in the suit property and now since Muhammad Ibrahim has also died, she has become the absolute owner. The suit ultimately was decreed in the year 1992. The defendants in that suit did not appeal but Anjuman Jamia Makka Masjid filed appeal claiming to be owner of the suit property through Mst. Bashiran which appeal was ultimately dismissed. In execution proceedings, present petitioner filed an application u/o 21 rule 99 CPC claiming to the son of Mst. Bashiran and entitled to the suit property.
3. The trial Court after hearing the parties dismissed the application against which the Petitioner filed Revision, which also met the same fate through impugned order which has been assailed in the instant petition.
4. Mr. Jamal Anwar Advocate for the Petitioner has contended that the petitioner being the son of Mst. Bashiran was entitled to whole property and since he was living at Karachi and had no knowledge about the proceedings initiated by Mst. Waheedan and no sooner it came to his knowledge that Mst. Waheedan is claiming the suit property as the only legal heir, he immediately filed objections u/o 21 rule 99 CPC and since he was not claiming through any of the Judgment Debtor, therefore, the trial Court ought to have allowed the petitioner to adduce evidence.
5. On the other hand, Mr. Abdul Jabbar Hashmi Mehar has filed his Vakalatnama on behalf of the Respondent No.1(a) and contended that Mst. Bashiran, the original owner of the property died on 30.05.1983 and thereafter Muhammad Ibrahim got mutated the property in his name on 09.01.1984 by obtaining heirship certificate showing himself to be the only legal heir of Mst. Bashiran. Muhammad Ibrahim also died on 14.05.1984, thereafter, the Respondent No.1 filed suit No.62/1984 against one Abdullah, who claimed to be the friend of Muhammad Ibrahim and was in possession of suit property as well as municipality Mirpurkhas. Abdullah initially contested the matter but subsequently disappeared and ultimately suit was decreed on 02.05.1992. The decree was assailed by Anjuman Makka Masjid on the ground that the property was given to the Anjuman by Mst. Bashiran, which appeal was also dismissed. Thereafter said Anjuman filed an application u/s 12(2) CPC, which was dismissed on 09.08.1999 in non prosecution. Thereafter said Anjuman filed an application u/o 9 rule 9 CPC to set-aside the dismissal, which application was also dismissed on 12.12.2008 and thereafter the instant petition was filed. Per learned Counsel the application is malafide as the Applicant has totally failed to establish any relation with Muhammad Ibrahim or Mst. Bashiran.
6. We have heard learned Counsel for the respective parties and have perused the record. In our opinion, since the claim of Mst. Waheedan that Mst. Bashiran and Muhammad Ibrahim expired issueless has been upheld by way of decree, therefore, unless that decree is set-aside the claim of the Petitioner that he being heir of Mst. Bashiran and Muhammad Ibrahim could not sustain. Even otherwise, learned Counsel for the petitioner has miserably failed to establish any relation between the Petitioner and late Mst. Bashiran and Muhammad Ibrahim. It is further important to note that in presence of the heirship certificate obtained by Muhammad Ibrahim claiming to be the only legal heir of Mst. Bashiran, the claim of the petitioner to be their legal heir after a lapse of 26 years can not sustain at all. Further the claim of the petitioner that he was away and therefore, was unaware about the proceedings initiated by Muhammad Ibrahim or Waheedan or that the rent of the shops was being realized by Anjuman-e- Makka Masjid was not in his knowledge, cannot be believed for the simple reason that if the Petitioner would have been the legal heir of Mst. Bashiran and Muhammad Ibrahim, then after death of Muhammad Ibrahim on 14.05.1984, the petitioner would have either got the property mutated in his name or would have taken steps to claim rent from Anjuman-e-Makka Masjid. Even otherwise since Muhammad Ibrahim has himself claimed to be the only legal heir of Mst. Bashiran and there is no reason advanced for concealment of petitioner as heir therefore, we see no reason to take exception to the impugned order. In the circumstances, no case for interference with well reasoned order of the Court below is made out. The petition consequently is dismissed alongwith listed applications.
JUDGE
JUDGE
A.K.