2012 PLP 1791 (MLD)

CH. SHAHID SAEED, J.

Through the instant civil revision petitioners have challenged the impugned judgments and decrees of the courts below by way of which suit for declaration filed by the petitioners has been dismissed.

2. Brief facts of the case are that Allah Bakhsh predecessor-in-interest of the parties, passed away in 1934 leaving behind one son Rehmat Ullah and one daughter Jannate. Allah Ditta was owner of 33 acres 3-Kanals of land of Mauza Rang Pur Tehsil and District Kasur. Allegedly, both the children inherited the property and Rehmat Ullah has been paying share of produce to his sister but Mst. Jannate also expired in 2006, before the institution of the suit and when her legal heirs contacted defendant No.1, they were told that no land had devolved upon Mst. Jannate and thereupon they came to know that mutation of inheritance of Allah Bakhsh deceased was attested only in favour of Rehmat Ullah defendant No.1.

3. Defendant No.1 appeared before the learned trial court and contested the suit by tooth and nail while submitting his written statement. Out of the divergent pleadings of the parties learned trial court framed necessary issues including relief. Both the parties got recorded their oral as well as documentary evidence. Learned trial court after hearing the arguments of both the parties at length ultimately dismissed the suit of the petitioners vide judgment and decree dated 23-1-2010. Petitioners preferred an appeal which also met with the same fate by the learned 1st Appellate court on 28-4-2010. Feeling aggrieved by the said judgments and decrees petitioners have filed the instant civil revision.

4. Learned counsel for the petitioners contends that the impugned judgments and decrees are against law and facts and also based upon mis-reading and non-reading of evidence. That both the courts below have misinterpreted the question of law involved in the matter. Further argued that section 2-A of Muslim Personal Law (Shariat) Application Act 1962 as amended in 1983 has retrospective effect and has relied upon 2008 SCMR 905, 2006 SCMR 884, 2003 SCMR 362 and PLD 1985 SC 407.

5. On the other hand, learned counsel for the respondents argued that mutation of inheritance No.192 was sanctioned in 1935 and at that time customary law was applicable according to which only male members were entitled to inherit the agricultural property. Learned counsel further argued that the said mutation was never challenged by the mother of the petitioners during her life time. That petitioners have not produced any proof to the effect that their deceased mother had been receiving the share of produce from the respondents.

6. Arguments heard. Record perused.

7. Undeniably, Allah Bakhsh predecessor in interest of Rehmat Ullah and Mst.Jannate Bibi was the original owner of the property in dispute. He died in the year 1934. After his death mutation of inheritance No.192 dated 12-6-1935 was sanctioned in favour of one Rehmat Ullah excluding the name of Mst. Jannate Bibi. The claim of the petitioners in the suit was that their mother was entitled to inherit 1/3rd of the property of deceased Allah Bakhsh according to the law of inheritance. Whereas the plea of the respondents in the written statement was that at the time of sanctioning of impugned mutation the customary law was applicable and in presence of the male, the females were excluded to inherit the property of deceased. Admittedly mutation was sanctioned in the year 1935 and whole property was inherited by respondent No.1 being the only son of his deceased father whereas Mst. Jannate Bibi was excluded to inherit the same due to the application of customary law. It is also an admitted proposition of law that the Muslim Personal Law (Shariat) Application Act, 1937 was promulgated on 7th October 1937. Section 2 of the said Act had exempted the Agricultural land. The Shariat was not applicable in cases of inheritance of Agricultural land.

8. The main contention of learned counsel for the petitioners was that Muslim Personal Law (Shariat) Application Act, 1962 section 2(A) has its retrospective effect. This question has already been resolved by the honourable Supreme Court of Pakistan in 2009 SCMR 1014. According to this judgment this point of law has been settled that section 2(A) Punjab Muslim Personal (Shariat) Application Act has no retrospective effects.

9. The other contention of learned counsel for the petitioners was that the mutation in dispute is illegal, void ab initio and also result of fraud. The said contention is without substance because Mst. Jannate Bibi remained alive about 71 years after the sanctioning of mutation but she did not challenge the same in her life time. Petitioners have not given any reasonable explanation that why their mother remained mum for more than seven decades and did not challenge the mutation in dispute. The only claim of the petitioners was that their mother has been receiving the share of produce but no proof regarding the receiving of share of produce has been placed on record. No independent witness has also been produced in whose presence the share of produce was given to the mother of the petitioners. Extension of limitation for a suit was provided under section 18 of Limitation Act, 1908. The Plea regarding share of produce was found to be false and there was no specific averment to bring the case within section 18 of Limitation Act, 1908, therefore, suit was hopelessly barred by time. Reliance can be made to the case of Atta Muhammad v. Maula Bakhsh and others (2007 SCMR 1446).

10. After careful scanning of whole the record I am of the considered view that mutation in dispute was rightly sanctioned in favour of the respondent No.1 under the customary law because Shariat Law was not applicable at that time. Moreover Mst. Jannate Bibi did not challenge the said mutation during her life time. The citations referred to by learned counsel for the petitioners are different and distinguishable from the facts and circumstances of the case in hand, so the same are not helpful for the petitioners.

11. Further more there are concurrent findings of facts in the matter and the courts below while passing the impugned judgments and decrees have taken into consideration all the material aspects of the case. Findings of the lower courts on question of facts and law based on proper appreciation of oral as well as documentary evidence led in the suit were not susceptible to review to be upset or substituted in revisional jurisdiction. The findings of the courts below based on material on record would not be amenable to interfere with in revisional jurisdiction.

12. Resultantly, this revision petition having no force is dismissed with no order as to costs. MH/M-39/L Revision dismissed.