2005 PLP 1283 (SCMR)

MIAN MUHAMMAD AJMAL, J.- By this common judgment, we propose to dispose of Civil Petitions Nos.1755-L and 1756-L of 1999 as they involve identical questions of law and facts. Facts of C.P. No.1755-L of 1999

2. Mst. Muhammad Bibi sold 20 Kanals, 14 Marlas of land on 25-3-1953 and 25-10-1953 in favour of predecessors-in-interest of respondents Nos.1 to

14. The petitioner brought a suit challenging the aforesaid sale which was decreed on 26-3-1954 and sales were declared ineffective upon reversionary rights of the petitioner. Mst. Muhammad Bibi, limited owner, died on 15-9-1962 whereafter petitioner filed a suit for possession of the land on 2-5-1964 on the basis of aforesaid decree. Respondents Nos.29 and 30 and predecessor-in-interest of respondents Nos.15 to 28 in whose favour mutation of heritance of Mst. Muhammad Bibi was attested were impleaded in the suit. During pendency of the suit, this Court in case of Federation of Pakistan v. Muhammad Ishaque PLD 1983 SC 273 declared reversionary rights to be against the Injunctions of Islam and consequently, West Pakistan Muslim Personal Law (Shariat) Application Act was amended vide Ordinance XIII of 1983, whereby section 2-A was added in it and in view thereof petitioner's suit abated and was dismissed vide judgment, dated 8-10-1983. The appeal of the petitioner also met the same fate vide judgment of the learned Additional District Judge, Sialkot dated 9-1-1986. Feeling aggrieved with the said judgment, the petitioner filed Civil Revision No.296 of 1986 which too has been dismissed by the learned Judge in Chambers of the Lahore High Court, Multan Bench, Multan vide his judgment dated 8-7-1999, impugned herein. Facts of C.P. No.1756-L of 1999

3. After the death of Smanda, his widow Mst. Muhammad Bibi inherited the disputed land measuring 125 Kanals, 11 Marlas as limited owner. She died on 15-9-1962 and inheritance Mutation No.277 was sanctioned on 30-9-1964 in favour of the legal heirs of the last full owner. Umar Hayat petitioner filed a suit for declaration and permanent injunction on 31-7-1967 before the Civil Court calling in question the validity of the said mutation, which was dismissed in default on 7-5-1971 under Order IX, rule 3, C.P.C. Thereafter on 1-6-1971 he instituted the present suit alleging therein that the suit land originally belonged to Mst. Abida deceased, his maternal-grandmother, which was inadvertently mutated by the Revenue Authorities in favour of Sikandar son of Dullah and on his demise in favour of Samanda. He alleged that all the entries in the Revenue Record in favour of Sikandar, his son Smanda and his widow Mst. Muhammad Bibi were illegal, void and ineffective upon his right. He contended that even if Muhammad Bibi deceased was held to be limited owner even then on her demise, the suit-land had to revert to Mst. Abida deceased, his maternal-grandmother, from whom the petitioner would inherit as her sole heir. In this respect he referred to the declaratory decree passed under custom by the Civil Court on 26-3-1954 impeaching the sale of the land measuring 20 Kanals, 14 Marlas made by Muhammad Bibi.

4. Allah Ditta and Barkat Ali defendants/predecessors-in-interest respondents Nos.1 to 14 resisted the suit through. joint written statement. They claimed that the suit was barred by limitation and the petitioner was estopped by his conduct to institute the suit. Defendants Nos.5 to 7, however, did not contest the suit and filed a consenting written statement. The suit was dismissed by the trial Court vide its judgment, dated 8-10-1983. Feeling aggrieved, the petitioner filed appeal which also met the same fate vide judgment of the learned Additional District Judge dated 9-1-1986. The petitioner then invoked revisional jurisdiction of the High Court and a learned Judge in Chambers of the Lahore High Court, Multan Bench, Multan dismissed the same vide his judgment, dated 8-7-1999, impugned herein.

5. We have heard the learned counsel for the petitioner and have gone through the record of the case. In C.P. No.1755 of 1999, the petitioner has claimed possession of the suit-land on the basis of decree, dated 26-3-1954. During the pendency of the suit, section 2-A was added in the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 vide Ordinance No.XIII of 1983, which reads as follows:-- "(2-A) Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat). Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim:-- '(a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat) Act; (b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery of possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act; (c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith: Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decree." The bare reading of clauses (b) and (c) of the above quoted newly added section would manifest that possession of agriculture land cannot be sought on the basis of a decree affirming the right of any reversioner under custom or usage and such decrees were void, in-executable and of no legal effect. In such view of the matter the learned Courts below were right in concurrently dismissing the suit having abated, hence no exception thereto is taken.

6. In C.P. No.1756 of 1999, the petitioner's plea was that the property originally belonged to Ali Muhammad who gifted it to Mst. Abida his daughter, who was married to Choghata son of Dulla. She had two sons namely Nabi Bakhsh, the father of the petitioner and Ghulam Hussain, the predecessor-in-interest of respondents Nos.17 to 19, as such, the petitioner and respondents Nos.17 to19 being the legal heirs of Mst. Abida were entitled to the disputed land and that the contesting respondents have no right of inheritance in the disputed property. Both the oral and documentary evidence did not support the claim of the petitioner and he failed to bring any document on record to prove that the disputed property originally belonged to Ali Muhammad or it was gifted in favour of Mst. Abida. On the contrary, the contesting respondents proved that the property belonged to Mst. Muhammad Bibi who sold the same to Shafi Ahmad etc. in 1953 which sale was assailed by the petitioner and the Court declared that Mst. Muhammad Bibi being the limited owner of the property could not sell the same. However, by virtue of addition of section 2-A in the Muslim Personal Law (Shariat) Application Act vide Ordinance XIII of 1983 all such decrees have been annulled. The concurrent findings of all the three Courts based on proper assessment of evidence warrant no interference. For the foregoing reasons, both these petitions are dismissed and leave refused. S.A.K./U-26/S Leave refused.