2015 PLP 869 (SCMR)

EJAZ AFZAL KHAN, J.

This appeal with leave of the Court has arisen out of the judgment dated 22-4-2010 of the Peshawar High Court whereby the learned Judge in its chambers dismissed the petition filed by the petitioner and maintained the judgments and decrees of the fora below.

2. Points raised and noted at the time of grant of leave read as under:-- "After hearing the learned counsel for the petitioner, we grant leave to appeal to examine, inter alia, whether:-- (i) the trial Court was legally correct in holding that the suit was not barred by time simply on the ground that entries in the revenue record conferred fresh cause of action to the plaintiffs. (ii) the suspension, under proviso to Article 203-D(2) of the Constitution, of the judgment of the Federal Shariat Court upon filing of appeal before the Shariat Appellate Bench of the Supreme Court must operate indefinitely and the cases in the meanwhile are still to be decided in accordance with the law already declared un-Islamic by the Federal Shariat Court."

3. The learned Advocate Supreme Court appearing on behalf of the appellant contended that where mutation witnessing the succession was sanctioned in 1978, the suit challenging the mutation, instituted in 1998, being hopelessly time barred was liable to be dismissed, therefore, the judgments decreeing the suit merit outright reversal. The learned Advocate Supreme Court to support his contentions placed reliance on the cases of Muhammad Rustam and another v. Mst. Makhan Jan and others (2013 SCMR 299), Noor Din and another v. Additional District Judge, Lahore and others (2014 SCMR 513) and Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs (PLD 2011 SC 657). The learned Advocate Supreme Court next contended that where section 4 of the Muslim Family Law Ordinance has been declared against the tenets and injunctions of Islam by the Federal Shariat Court in its judgment rendered in the case of Allah Rakha and others v. Federation of Pakistan and others (PLD 2000 FSC 1), no judgment and decree could be passed thereunder.

4. As against that the learned Advocate Supreme Court appearing on behalf of the respondents contended that respondents Nos. 1 to 4 became co-owners with the appellants in the suit property on the demise of their propositus, therefore, absence of their names from the relevant mutation would not be of much consequence. He next contended that though section 4 of the Muslim Family Law Ordinance has been declared against the tenets and Injunctions of Islam, yet it cannot affect previous operation of law or any right acquired thereunder. The learned Advocate Supreme Court to support his contentions placed reliance on the cases of Mst. Samia Naz and others v. Sheikh Pervaiz Afzal and others (2002 SCMR 164) and Muhammad Ali and others v. Muhammad Ramzan and others (2002 SCMR 426).

5. We have gone through the record carefully and have considered the submissions of the learned counsel for the parties made at the Bar.

6. The record reveals that Gul Badshah, who was propositus of the parties, died in 1978. On his demise his legacy was to devolve on his two sons, two daughters and children of his pre-deceased daughter. The mutation witnessing succession excluded the children of the pre-deceased daughter. They questioned their exclusion through a civil suit. The suit was decreed by the fora below as well as the High Court.

7. The first argument questioning the judgments of the fora below as well as High Court is that the suit being hopelessly time barred is liable to be dismissed. This argument would have been viable otherwise but not in a case where co-heirs become co-owners in the property left by their propositus on his demise. Their succession to the property of their propositus becomes a fait accompli immediately after his demise. It, thus, does not need the intervention of any of the functionaries of the Revenue Department and remains as such irrespective of what Patwari, Girdawar and Revenue Officer enter in the mutation sanctioned in this behalf. Since possession of one co-heir or any number of them would be deemed to be on behalf of even those who are out of it, preparation of every new record of rights, in their case, would confer on them a fresh cause of action. No length of time, therefore, would culminate in the extinguishment of their proprietary or possessory rights. The judgments rendered in the cases of Muhammad Rustam and another v. Mst. Makhan Jan and others, and Noor Din and another v. Additional District Judge, Lahore and others (supra) are distinguishable as the predecessor-in-interest of the petitioners in the aforesaid cases did not challenge the succession in their life time which is not the case here. The case of Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs (Supra) too is not applicable to the case in hand when the mutation attested in favour of the respondents in that case had its origin in a family settlement.

8. The second argument questioning the impugned judgments is that once section 4 of the Muslim Family Law Ordinance has been declared against the tenets and Injunctions of Islam by the Federal Shariat Court in its judgment rendered in the case of Allah Rakha and others v. Federation of Pakistan and others (supra), no judgment and decree could be passed thereunder. But this argument too cannot enable the appellants to recoup a lost cause, because this declaration even if affirmed by the Shariat Appellate Bench will take effect from 31-3-2000 in view of the provision contained in Article 203D of the Constitution of the Islamic Republic of Pakistan. It cannot affect previous operation of law or a succession taking place before such date, The cases of Mst. Samia Naz and others v. Sheikh Pervaiz Afzal and others and Muhammad Ali and others v. Muhammad Ramzan and others (supra) may well be referred to in this behalf.

9. When faced with this situation, the learned Advocate Supreme Court in his rearguard action tried to bring in the case of bona fide purchasers who according to him are in large number. But we do not think this will help him to achieve the desired objective: firstly because their rights have already been protected by the impugned judgments and secondly because their rights are to be adjusted against property of their vendors and not of respondents Nos. 1 to

4. The view taken by the fora below as well as the High Court being in conformity with the law and evidence on record thus needs no interference.

10. For the reasons discussed above, this appeal being without merit is dismissed. MWA/M-21/SC Appeal dismissed.