2005 PLP 1383 (CLC)

This civil revision petition has been filed by Mst. Zinat-un-Nisa and others calling in question the judgment and decree dated 8-10-2001 passed by the learned Additional District Judge, Mansehra, who on the acceptance of appeal of respondents set aside the judgment and decree of the trial Court recorded on 2-2-1999.

2. A summary of facts relevant for the decision of the civil revision is that Mst. Zinat-un-Nisa and two others being daughters of Ali Asghar Khan filed a civil suit for a declaration to the effect that they are owners in possession of the suit-land to the extent of 3/15 shares on the basis of inheritance of their father Ali Asghar Khan. The correction of the Revenue Record was also solicited. The defendants/respondents are admittedly the real brothers of plaintiffs-petitioners. (plaintiff No.3 is dead and succeeded by petitioners Nos.3 to 8). The suit was resisted and the rival pleadings generated fourteen issues apart from the relief. On such issues, the trial proceeded and the parties recorded their respective evidence in support of their rival contentions. In the plaint, it was averred that the suit-land originally belong to Ali Asghar Khan and on his death it devolved upon the parties. It was claimed that the petitioners being his legal heirs are entitled to their respective shares on the Rule of Islamic Law of Inheritance and they were wrongly excluded from the Revenue Record being Pardanasheen ladies. In their written statement, the respondents, inter alia, adopted the stance that Ali Asghar Khan was not the owner of the suit-land and he was "Guzara Khore" under the ex-Nawab of Umb State, on whose death 1/3rd of the property was given to them in lieu of their services to the Ruler of ex-State. It was also contended that ladies were not considered as "Guzara Khore" and, as such, they could not inherit any such right from their predecessor. It was maintained that "Guzara" was dependent upon the services to the State. On the question of limitation also, the rights of the petitioners were denied.

3. On the evaluation of evidence of the parties the learned trial Court held that the suit-land was in fact the ownership of Ali Asghar Khan and, as such, the petitioners were entitled to the suit-land out of his legacy. The learned District Judge was, however, of the opinion that Ali Asghar Khan being a "Guzara Khore" could not, be the owner of the suit property, therefore, it cannot be called as an inheritance and the petitioners have no rights therein. Thus, he allowed the appeal and set aside the judgment and decree of the trial Court.

4. The learned counsel appearing on behalf of the petitioners has emphatically argued that the predecessor-in-interest of the parties, namely, Ali Asghar Khan, was an owner as "Guzara Khore" of the land who died in 1940. Giving a short recital of the suit property, he urged that when the upper Tanawal merged in Pakistan in 1950 and the "Misl-e-Haqiat" was not yet prepared, disturbances in the area started between the tenants and the proprietors. Thus, the Government took possession of whole of the State land and in the Revenue Record, the Government was recorded as owner. Arrangements were made by the Government for the recovery of rent from the Tillers. After the deduction of expenses of recovery, the rent was paid to the proprietors, i.e. Nawab of Umb, Khan of Phulra and Guzara Khores. Subsequently, it was ordered that the estate be transferred in the name of Nawab and Guzara Khores were also admitted to be the owners of the land given to them for their maintenance. Thus, mutations in the names of Guzara Khores were attested but the respondents excluded the petitioners from the Revenue Record at the time of preparing the same. He contended that the respondents are not correct in claiming the property as their self-acquired property, because the suit-land was in continued possession of Ali Asghar Khan and on his death, the declaration of Guzara Khores as proprietors by the Government was not restricted to the male members but the female gender was equally included in the category of proprietors. He also argued that previous to the instant litigation Nawab of Umb had instituted a suit against the respondents qua the suit-land significantly they in their written statement denied the rights of Nawab Farid Khan on the ground that the parties are "Yakjadee" and there is no question of services between the defendants (present respondents) and the Nawab. He urged that it was specifically mentioned by respondents that they are the owners of the suit-land as "Guzara Khoran".

5. On the other hand, the learned counsel for the respondents has urged that Ali Asghar Khan had died in the year 1940 when Rewaj was prevailing in the area and under Rewaj females could not get share in the legacy of their predecessor. It was further contended that suit of the plaintiffs-petitioners was manifestly time-barred as the same was filed after the period of limitation. It was also argued that the learned Additional District Judge has rightly held that the suit-land was not the ownership of Ali Asghar Khan. He urged that the property was given afresh to the respondents by the ex-Nawab of Umb after the death of their father as they had to render services to Nawab and the female gender had no contribution in rendering any kind of service. Adverse possession is also pleaded in favour of the respondents.

6. I have carefully examined the rival contentions of the learned counsel for the parties and avidly read the record with their valuable assistance.

7. The first-argument of the learned counsel for the respondents that the petitioners being ladies could not claim inheritance in the suit-land due to the prevalence of Rewaj at the time of death of Ali Asghar Khan has got no force. The law on the point is now well-settled in Muzaffar Khan v. Mst. Roshan Jan and others PLD 1984 SC 394, it was held that N.-W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 it to be given retrospective effect. In dispute with respect to succession estate of deceased Muslim, the deceased Muslim shall be deemed to have died under domain of Muslim Law, even if death had taken place before coming into force of N.-W.F.P. Muslim Personal Law (Shariat) Application Act, 1935. In Mst. Namdara and 3 others v. Sahibzada and 2 others 1998 SCMR 996, it was held that the provisions of N.-W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 are to be given retrospective effect. Whenever a dispute comes before a Court with regard to succession to the estate Of a deceased Muslim, the deceased will be deemed to have died under the domain of Muslim Personal Law (Shariat) Application Act, 1935. Mere attestation of a mutation excluding a co-sharer or a female co-sharer cannot be made basis for holding that the limitation will run against her from the date of attestation of mutation. The cases of Miskin and another v. Mst. Hassan and others PLD 1968 Pesh. 94 and Suleman Shah and others v. Nasrullah and others 1999 MLD 249 can also be quoted with advantage.

8. In view of the foregoing, judgments, the argument of the learned counsel for the respondents becomes invalid. Neither the question of limitation nor that of adverse possession would operate as a barring factors in the way of petitioners-plaintiff. The petitioners being the legal heirs of Ali Asghar Khan are co-sharer therein, therefore, possession of a co-sharer would be considered as a possession of other co-sharer in absence of any ouster. On this feature of the case, the case of Ghulam Ali and others v. Ghulam Sarwar Naqvi PLD 1990 SC 1 can be relied upon. It was held therein that heir in possession has to be considered to be in constructive possession of the property on behalf of the heir in spite of his exclusive possession. Possession of the brothers thus, would be taken to be the possession of their sisters, unless there is an express repudiation of the claims of the sisters by the brothers. It was also held that mere omission to pay profits does not in itself constitute ouster. To meet the argument of the learned counsel for the respondents on the question of adverse possession. PLD 1987 Pesh. 100 would be a complete answer. Coming to the last submission of the learned counsel for the respondents that it was not the inherited property of Ali Asghar Khan but was given to them afresh after his death for their services rendered to Nawab, the record negates such argument which bears the testimony that Nawab Farid Khan had filed a suit against the respondents with regard to the same property. The respondents/defendants filed written statement in Suit No.95/61 (Exh.P.W.3/4) and paragraph 2 of facts thereof reads as under: -- Urdu Page 1388 Similarly in paragraph 5 it was eloquently averred as follows:-- Likewise, in paragraph 2 of the written statement (Exh. P. E.3/7), it was mentioned that

9. Such averments of the respondents in their written statement to the suit filed by the ex-Nawab clearly indicates that they have based their claim on the fact that they are in possession as owners since their forefathers and the factum of service with Nawab was totally denied. Thus, in such circumstances, it cannot, be argued by the respondents that the suit-land is their self-acquired property and it was obtained by them in lieu of services that they have rendered to ex-Nawab. When the respondents have themselves admitted that they are in possession of the suit-land as owners since their forefathers, then the finding of the learned Additional District Judge to the effect that it was not the ancestral property and Ali Asghar Khan was not the owner of the suit-land becomes open to exception and cannot be maintained.

10. In the aforementioned circumstances, I have no hesitation to hold that the judgment and decree of the learned trial Court are well-grounded and proceeded on correct appreciation of evidence on the record.

11. Resultantly, this revision petition is allowed, the impugned judgment and decree of the learned trial Court are maintained and those of the learned Appellate Court are set aside. The suit of the petitioners stands decreed. However, the parties shall bear their own costs. S.A.K./Z-425/P Revision accepted. ***