2019 PLP 1061 (MLD)

AMIN-UD-DIN KHAN, J.

Through this civil revision the petitioners who are plaintiffs of a suit for declaration have challenged the judgment and decree dated 24.03.2014 passed by the learned Additional District Judge, Tandlianwala District Faisalabad whereby the appeal filed by the petitioners was dismissed and the judgment and decree dated 22.06.2011 passed by the learned Civil Judge 1st Class, Tandlianwala District Faisalabad whereby the suit filed by the petitioners/plaintiffs was dismissed.

2. The brief facts of this case are that on 27.10.2007 the plaintiffs/petitioners filed a suit for declaration with the prayer that they are entitled to inherit 2/3 share from the legacy of Allah Ditta son of Akbar being YAKJADDIAN and defendants Nos.1 to 4 are entitled to receive 1/3 share. Mst. Sydan Bibi widow of Akbar, mother of Allah Ditta, was limited owner and she was not entitled to transfer the property through sale or gift. In the suit registered gift deed No.2 registered on 16.01.1950 by Sub-registrar Faisalabad and on the basis of said gift deed mutation No.154 attested on 21.07.1956 and subsequent mutation No.360 attested on 25.08.1965 and sale deed No.93 registered on 23.01.1967 and on the basis of said sale deed mutation No.380 attested on 27.03.1967 by Mst. Sydan Bibi in favour of Noora, were challenged. Further mutation No.55 attested on 21.06.1994 by Noora in favour of defendants Nos.6 to 9, mutation No.956 attested on 21.06.1994 by Noora in favour of defendant No.5, mutation No.502 attested on 31.12.2003 by Noora in favour of defendant No.10, mutations Nos.1796 and 1797 attested on 21.05.2007 by Noora in favour of defendant No.10, mutation No.1416 attested on 17.01.2003 by defendant No.5 and mutation No.1795 attested on 21.05.2007 by defendant No.10 in favour of defendant No.11 were also challenged.

3. The written statement was filed and suit was contested. Learned trial court framed the issues and invited the parties to produce their evidence. Both the parties produced oral as well as documentary evidence. The written statement appended with this revision filed by defendants Nos.5 to 11 shows that they pleaded that they are bona fide purchasers and further it was pleaded that Mst. Sydan Bibi was full owner on the basis of Shariat and mutation No. 67 was not attested on the basis of custom and she was not limited owner. After the completion of trial suit was dismissed by the learned trial court vide judgment and decree dated 22.06.2011 holding that Mst. Sydan Bibi was limited owner but the suit was bared by time. An appeal was preferred before the learned first appellate court, which also met the same fate vide judgment and decree dated 24.03.2014. Hence, this civil revision.

4. Learned counsel for the petitioners argues that when it is a matter of inheritance, limitation cannot be a hurdle in the way of petitioners/plaintiffs and the findings recorded by both the courts below on the basis of limitation dismissing the suit and appeal are not sustainable under the law. Learned counsel has relied upon "Muhammad Farooq and 5 others v. Muhammad Haneef and others" (PLJ 2011 SC 44), "Muhammad Din through L.Rs. and 16 others v. Zulfiqar and 2 others" (2008 SCMR 1054), "Muhammad Zubair and others v. Muhammad Sharif" (2005 SCMR 1217), "Hashmat Ali and another v. Mst. Jantan and others" (1993 SCMR 950) "Mahmood Shah v. Syed Khalid Hussain Shah and others" (2015 SCMR 869) and "Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others" (2005 SCMR 1447).

5. On the other hand, learned counsel for the respondents argues that on the basis of mutation No.67 inheritance of Allah Ditta devolved upon Mst. Sydan Bibi, his real mother, as he was minor and no other legal heir of said Allah Ditta was available; that the mutation has not been challenged till today, which is fatal defect; that when the mutation was attested on the basis of Shariat, then no question of limited owner, therefore, states that both the courts below fell in error declaring that Mst. Sydan Bibi was a limited owner. States that this Court while exercising jurisdiction under section 115 of the C.P.C. can scrutinize the findings on issue No.1 which were wrongly recorded by both the courts below. Learned counsel for the, respondents has also relied upon "Mst. Grana through Legal Heirs and others v. Sahib Kamal Bibi and others" (PLD 2014 Supreme Court 167), "Ghulam Haider and others v. Murad through Legal Representatives and others" (PLD 2012 Supreme Court 501), "Bashir Ahmed v. Abdul Aziz and others" (2009 SCMR 1014), "Atta Muhammad v. Maula Bakush and others" (2007 SCMR 1446), Mst. Shahi Lal and 5 others v. Khurshid Ali Khan and 13 others" (2015 YLR 2443), "Muhammad and others v. Mst. Khatoon and others" (2013 YLR 2036), "Shakil Haider and others v. M. Tufail and others" (2013 CLC 241) and "Muhammad Asghar and 3 others v. Rehmat Ullah and 2 others" (2012 MLD 1791).

6. I have heard the learned counsel for the parties at full length and also gone through the record available on the file minutely as well as the case law cited by the learned counsel for the parties with their able assistance.

7. There is no cavil to the case law referred to by the learned counsel for the parties.

8. Admittedly the attestation of mutation No.67 (Exh.P-16) dated 04.07.1943 does not suggest that it was attested on the basis of custom prevalent in the family of propositus and the property was given to Mst. Sydan Bibi mother of the deceased as limited owner. Needless to observe that there were two ways of devolving of the property of a propositus, one was on the basis of Shariat and the other way was on the basis of custom prevailing in the family of propositus. If the mutation was to be attested on the basis of custom, then the reference of custom was ordinarily to be mentioned in the order of revenue officer specially referring the question of prevalence of custom on the basis of Shart Wajib ul Arz.

9. When confronted with the learned counsel for the petitioners that whether copy of the question dealing with inheritance in the tribe of propositus on the basis of custom mentioning a question in Shart Wajib ul Arz was produced before the court; the answer is in the negative. I have gone through the oral evidence which also does not suggest that the custom was proved in the family of propositus for distribution of inheritance of immovable property. In these circumstances, the findings of both the courts below that Mst. Sydan Bibi was limited owner are absolutely against the record and result of misreading and non-reading of evidence available on the file. There is not an iota of evidence to suggest that Mst. Sydan Bibi was a limited owner except the pleading in the plaint and that too without proof. Admittedly a pleading cannot be admitted without evidence unless it is proved through cogent and confidence oral as well as documentary evidence. Even the mutation No.67 has not been challenged in the suit, when it was attested on the basis of Shariat as discussed supra. In these circumstances, the findings on issue No. 1 cannot sustain as the same are absolutely against the law. Though no cross objections were filed before the learned first appellate court as well as agitated the findings on issue No.1 by the defendants/respondents before this Court but when this Court is dealing with the matter under section 115 of the C.P.C., it has vast powers to correct the wrong or substitute the findings of courts below when both the courts below have exercised the jurisdiction illegally and committed material irregularity. It is a fit case for exercise of jurisdiction under section 115 of the C.P.C. vested in this Court in order to correct the findings of both the learned courts below. Therefore, while exercising the jurisdiction under section 115 of the CPC I set-aside the findings on issue No.1 recorded by two courts below declaring that mutation No.67 of inheritance of Allah Ditta was attested on the basis of Shariat and not on the basis of custom.

10. The suit was filed after 64 years of the attestation of mutation when it was admitted by one of the witnesses of the plaintiffs who appeared as PW-1 that Noora never gave any share of produce to them and further that in the year 1988 Haitam and Hamid filed a suit for declaration. Further admitted that he was pursuing the said suit and he knew that said suit was dismissed. He further admitted that first registered transfer deed was of the year 1950 and all the subsequent transfers were admitted by him. If otherwise the claim of petitioners/plaintiffs that it was a case of limited owner is taken into consideration in the light of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 (XXV of 1975), then the limitation provided for filing the suit was one year, whereas the suit was filed even after more than three decades of the period of limitation. In these circumstances, the findings on other issues recorded by two courts below are in accordance with law, therefore, same are affirmed.

11. For the foregoing reasons, this civil revision having no substance stands dismissed. ZC/A-8/L Revision dismissed.