2005 PLP 118 (CLC)

Shortly narrated the facts giving rise to the filing of this civil revision are, that Muhammad Hassan and others, plaintiffs, brought a suit against Dur Mar Jan and others, defendants in the Court of Senior Civil Judge, Lakki Marwat for a declaration to the effect that plaintiffs and pro forma defendant No. 15 Musa Khan were owners in possession of suit-land situate in villages Daulat Tajazai, Gulbaz Dehqan and Landiwa, Tehsil and District Lakki Marwat to the extent of 34196th share by virtue of inheritance of late Haider son of Sarwar, died in 1932-33 and entries in the Revenue Record contrary to it were illegal, fictitious and inoperative qua the rights of the plaintiffs and defendant No.

15. They also challenged the correctness of inheritance mutations of late Haider bearing No.3149 attested on 25-9-1932 regarding land in village Daulat Tajazai, No.576 attested on 5-2-1933 regarding land situated in village Gulbaz Dehqan and No.12107 regarding land situated in village Landiwa. It was averred that plaintiffs and pro forma defendant No. 15's mother and grandmother namely Mst. Shah Bibi and Mst. Mumaira were entitled to inherit from the property of late Haider as her daughter and widow respectively but they were illegally deprived of their entitlement and gift Mutation No.1366 and No.1367 and inheritance Mutations Nos.43792 and 43793 were got fictitiously sanctioned in collusion with the Revenue staff. It was also alleged that plaintiffs and defendants Nos. 15 were entitled to receive their proportionate share in the produce of suit-land from defendant No. 1 to

13. It was further asserted that defendant No. 14 i.e. Collector, District Lakki Marwat be restrained to pay compensation of the acquired land out of suit-land with direction to pay the plaintiffs' due share.

2. The contesting defendants in their written statement resisted the suit on all grounds legal as well as factual. The divergent pleadings of the parties gave birth to the framing of as many as ten issues. For the purpose of this civil revision, I am concerned with issue No.2 which is reproduced below: "Whether the suit is time-barred?"

3. The parties produced evidence in support of their respective contentions. On consideration of the evidence, learned Senior Civil Judge, Lakki Marwat, dismissed the suit which on acceptance of appeal by the learned Appellate Court, was remanded back to the trial Court for decision afresh. The learned Senior Civil Judge, Lakki Marwat after remand, once again dismissed the suit by his judgment and decree, dated 26-5-1997 holding:-- "that plaintiff's mother and grandmother namely Mst. Shah Bibi and Mst. Mumaira, daughter and widow of Haider deceased were denied share in the legacy of Haider due to customary law then prevalent in this part of the country. On the promulgation of N.-W.F.P. Muslim Personal Law (Shariat) Application Act, 1935, customary law of inheritance was done away with, so, they were supposed to have filed suit within 12 years 6f the promulgation of the Act, or at least, after they got knowledge of the error in the Revenue Record. They have admittedly not received any share of produce of the suit-land from the suit mutations. Plaintiff No.1 himself admitted in his statement that his mother Mst. Shah Bibi had objected to the transfer by Sher Jan and Babrai (grandsons of Haider) to their heirs of the suit- land during the regime of Ayub Khan, meaning thereby that the plaintiffs or their mother Mst. Shah Bibi became fully aware of the position at least 26 years before the institution of the suit but they did not seek any remedy regarding the suit-land. The plaintiffs right to sue the defendants has become time-barred and they are so estopped."

4. An appeal was preferred thereagainst which did not succeed. The same was dismissed vide judgment dated 23-11-1999. Hence the present civil revision under section 115, C.P.C.

5. Mr. Rustam Khan Kundi, Advocate for the petitioners contended that findings of the Courts below recorded on issue No.2 are totally unwarranted and cannot be allowed to remain intact. He submitted that sufficient material was available on the file in support of the petitioners' claim which has been put at shelf and excluded out of consideration which has materially prejudiced the rights of the petitioners. The learned counsel maintained that assumingly but not admittedly even Custom were the Rule of legacy even then the entire lot ought to have been transferred in equal shares between Mst. Mumaira, widow and Mst. Shah Bibi, daughter of Haider till their remarriage/marriage or death and even Custom was not respected and followed in spite of the fact that the Custom has been alleged by the defendants. The learned counsel added that in case of Muslims, the Punjab Laws Act (V) of 1872 was in force before the promulgation of Act (VI) on 6-12-1935. Section 5(b) of the Act of 1872 clearly spelt out that in case of Muslims, the Muslims Personal Law would be applicable instead of customary law for inheritance. The learned counsel further submitted that right of inheritance has been ordained through Divine Verdict in the Holy Qur'an and it was granted statutory recognition by section 5(b) of the Punjab Laws (V), 1872 and later by retrospective application of N.-W.F.P. Muslims Personal Law (Shariat) Act (VI) of 1935 which was later on upheld by West Pakistan Shariat Act (V) of 1962 which is still in force and reinforced by Act X of 1991. Concluding the arguments, the learned counsel stated that the violation of Divine law of inheritance is a serious and culpable wrong and Divine Sight of inheritance cannot be extinguished or terminated by Laws enacted by Municipal soverign of the State. To substantiate the contentions, reliance was placed on 1983 SCMR 626, 2000 SCMR 1574, 1991 MLD 25, 1986 MLD 764, 1998 SCMR 996, PLD 1984 SC 394, 2002 CLC 689 (Lahore), PLD 1983 SC 273, 2003 SCMR 362, 1997 SCMR 281, 2002 CLC 1704 (Peshawar), 2002 CLC 1539 (Peshawar) and 1995 CLC 380.

6. Messrs Gauhar Zaman Khan Kundi and Malik Muhammad Bashir, Advocates for the respondents, on the contrary, supported the concurrent verdict recorded by the Courts below on the issue of limitation and maintained that suit having been filed with considerable delay, was rightly found barred by time and the impugned findings hardly call for interference of this Court in its revision jurisdiction under section 115, C.P.C. In this regard they placed reliance on 2001 MLD 1790 (Peshawar), 2001 YLR 2615 (Lahore), 2004 CLC 515, 2002 CLC 1704 (Peshawar), 2002 CLC 1709 (Peshawar), 2002 MLD 500 (Lahore) and 2002 CLC 754 (Peshawar).

7. I have given my mature consideration to the arguments of learned counsel for the parties with reference to the material on the record and case-law cited at the bar.

8. The suit is in respect of agricultural property situate in Revenue estates of Daulat Tajazai, Gulbaz Dehkan and Landivira, Tehsil and District Lakki Marwat owned by Haider son of Sarwar stated to have expired somewhere in 1932-33, leaving behind a widow Mst. Mumaira and daughter Mst. Shah Bibi and two grandsons namely Sher Jan and Babrai by his pre-deceased son Sparlai. Mst. Shah Bibi was married to one Mehrdil of Tajazai. Muhammad Hassan plaintiff No.1 and Musa Khan, defendant No. 15.are her sons from Mehrdil. She obtained divorce from Mehrdil and contracted marriage with Umar Khitab of Dalokhel. Muhammad Khan plaintiff No.2 and Ghulam Jan, plaintiff No.3 are sons of Mst. Shah Bibi from the second husband. Babrai, grandson of Mst. Mumaira died in 1999. The declaratory relief claimed in the suit is visibly directed against inheritance Mutation No.3149 dated 25-9-1932 (pertaining to Mouza Daulat Tajazai), Mutation No.576 dated 5-2-1933 (pertaining to Mouza Gulbaz Dehkan) and Mutation No.12107 (pertaining to Mouza Landiwa) besides Mutations Nos.1366 and 1367 in the nature of gift (pertaining to Mouza Gulbaz Dehkan), inheritance Mutation No.43792 (pertaining to Mouza Landiwa), and also Mutation No.43793 (pertaining to Mouza Lanidwa) were also challenged in the main suit., Plaintiffs had prayed for decree in their favour as also in favour of pro forma defendant No.15 as against defendants. The main theme of the plaintiffs-petitioners' claim as reflected in the plaint was that they were entitled to inherit their share in the suit property from Mst. Mumaira, widow and Mst. Shah Bibi, daughter of Haider son of Sarwar out of the property owned by late Haider son of Sarwar. Both the Courts below while dealing with Issue No.2 have concurrently held that suit is barred by time and I see no good reason to disagree with them and take a contrary view. As rightly urged, statement of Muhammad Hassan (P. W.7), one of the petitioners alone is sufficient to dislodge the claim of the petitioners and cause a dent in the petitioner's case. The petitioners having awakened after a long slumber cannot be allowed to challenge entries in Revenue Record, affecting their rights and asking for their rectification. Noticeable delay on the part of petitioners is not ignorable. The relationship of the petitioners with late Haider is not in dispute but as the petitioners have approached the Court of law after a considerable long tune, no indulgence can be shown to them in the matter of limitation. The case-law relied upon by learned counsel for the) petitioners is distinguishable and proceeds on different facts. It is of no help to the petitioners.

9. In view of what has gone above, it follows that the learned trial Judge as well as the learned Appellate Court have taken a rightful decision regarding limitation which is in consonance with the evidence on the file. No misreading or non-reading of evidence is proved and at the same time, the judgments of the Courts below are not shown to have been tainted with any illegality or irregularity in absence of which, no interference is permissible in revisional jurisdiction of this Court. There is no merit in this revision petition which is accordingly dismissed with no order as to costs. H.B.T./251/P Revision petition dismissed.