1993 PLP 214 (CLC)

(2) Whether the plaintiff is estopped by words and conduct to file the suit? (3) Whether the plaintiff has waived his right? (4) Whether the plaintiff has got no cause of action to file this suit? (5) Whether the plaintiff has got no locus standi to file this suit?' (6) Whether the Civil Court has got no jurisdiction to try the suit? (7) Whether the suit is not correctly valued for the purposes of court‑fee and jurisdiction? (8) Whether the suit is false, frivolous and vexatious? If so, is the defendant entitled to special costs? (9) Whether the parties were governed by custom? (10) Whether the impugned mutation dated 30‑10‑1965 and the order in appeal dated 12‑6‑1978 and the order in revision dated 7‑6‑1978 are against facts, without jurisdiction, illegal and ineffective against the plaintiffs rights? (11) Whether the gift by Mst. Umri in favour of the defendant is against facts, without jurisdiction, illegal and ineffective against the plaintiffs rights? (12) Whether the plaintiff is entitled to the relief of possession and injunction sought for? (13) Relief. After recording of evidence and hearing arguments, the learned trial Court vide judgment and decree dated 18‑5‑1981 dismissed the suit holding that the suit is barred by time. Further issues Nos.2 to 8 were decided in favour of the respondent but regarding issue No.9, it was held that Mst. Umri was holding the land as a full owner aid hence issues Nos. 10,11 and 12 were also decided in favour of Shahab Din predecessor‑in‑interest of the present petitioners. On appeal filed by the respondent, learned Addl. District Judge, Faisalabad set aside the judgment and decree passed by the learned trial Court vide judgment and decree dated 18‑5‑1981 and decreed the suit filed by the respondent. This judgment at variance has been challenged by the legal heirs of the defendant Shahab Din deceased;

2. Mr. Jari Ullah Khan Advocate, learned counsel for the petitioners has raised the following contentions:‑ . (i) that the mutation of gift sanctioned on 30‑10‑1965 has been challenged on 25‑6‑1979 and therefore the suit is barred by time under sections 2, and 3 of the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 (Act XXV of 1975) according to which‑provision the suit could have been filed within one year with effect from the date of enforcement of the said Act; (ii) that it is established on record that Mst. Umri was a full owner but the learned first appellate Court has illegally set aside the findings of fact by misreading and non‑reading of evidence on the record particularly the circumstance of partition of the khata. Learned counsel has, however, not denied that Mst. Umri got the allotment of land in question in lieu of the land inherited by her in India from her husband who is father of the respondent and who was an agriculturist Jat by caste.

3. As against the above arguments addressed by the learned counsel for the petitioners, Ch. Muhammad Farooq Advocate has argued that it is a suit for possession on the basis of title filed by an heir and hence is not barred by time and that the finding of fact recorded by the learned first appellate Court with regard to the status of Mst. Umri as being a limited owner is based upon evidence and also is in accord with the latest pronouncement by their Lordships of the Supreme Court of Pakistan. Learned counsel contends that there is absolutely no misreading or non‑reading of evidence and hence judgment of the learned first appellate Court is lawful and hence the civil revision is liable to be dismissed.

4. I have considered the arguments addressed by both the learned counsel for the parties, have perused the record and have also gone through the evidence recorded in the case. According to document Exh. P.3, Shajra Nasab Mst. Umri is shown as a widow of Boora deceased as his heir alongwith Boota plaintiff. The vernacular words recorded by Mst Umri are Mst. Umri Bewa ish waris hai . This entry has been interpreted as an entry of a limited estate in case of Muhammad Bibi v. Ghulam Muhammad etc. PLD 1978 Lah.

483. Even otherwise, Boora deceased was Jat and hence belonged to an agriculturist family, hence shall be presumed to have followed custom in matters of inheritance according to which the issueless widow succeeds only for the purpose of maintenance alongwith son bf the deceased from another wife and this estate ensures till life or till re‑marriage. Resultantly it has been correctly held by the learned first appellate Court that Mst. Umri was a limited estate holder and hence had no lawful authority to alienate the property in question through gift. Mutation of gift dated 30‑10‑1965 has correctly been declared as void and therefore findings of the learned first appellate Court on issues Nos. 9, 10, 11 and 12 are maintained. So far as the question of limitation is concerned, learned trial Court had dismissed the suit as being barred by time applying Article 14 of the Limitation Act. This is a suit for possession and has to be governed by Article 144 of the Limitation Act. As per law laid down by their Lordships of the Supreme Court of Pakistan in cases Abdul Ghafoor and others v. Muhammad Shafi and others, (PLD 1985 SC 407) and Ghulam Ali and 2 others. v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) it shall be presumed that on the termination of limited estate of the widow, the respondent automatically succeeded to the estate as an heir of his father Boora. No period of limitation will start against his rights to claim possession unless and until it is proved on record that the defendant‑petitioners acquired title by adverse possession. As the petitioners claim title through a mutation of gift, they cannot claim title through adverse possession. Even otherwise, this is not their case in the written statement. Plea of adverse possession is not available to the petitioners as per provisions of section 4 of Act XXV of 1975 which reads as under:‑ "Bar to claim adverse possession.‑‑‑Any person who claims to have acquired any right or interest in property whether by alienation, succession or otherwise, originally allotted to a refugee female limited owner, shall have no right to plead adverse possession against any lawful heir of the last male holder. Consequently it cannot be said that the suit is barred by time and hence the learned first appellate Court has correctly reversed the finding on issue No.l recorded by the learned trial Court. Arguments of the learned counsel for the petitioners to the effect that the suit could have been brought only within year after the enforcement of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 (Act XXV of 1975) is also misconceived inasmuch as the above enactment besides being enabling applies only to those cases where the lis has already been decided against a suitor, and the decision referred to in the said enactment shall definitely mean a decision by a forum of general jurisdiction in cases where the question of title is involved inasmuch as the entries in the mutation do not create any title and need not even be challenged in suits for possession based on title. Hence on this score as well it cannot be said that the suit is barred by time. Resultantly I find no legal infirmity with the judgment and decree passed by the learned first appellate Court. Hence the civil revision is dismissed with costs. AA./A‑268/L Revision dismissed