2017 PLP 158 (YLRN)

AMIN-UD-DIN KHAN, J.

Through this civil revision the petitioners/ defendants have challenged the judgment and decree dated 02.07.2009 passed by the learned Additional District Judge, Dera Ghazi Khan, whereby the appeal filed by them was dismissed and the judgment and decree dated 23.02.2007 passed by the learned Civil Judge 1st Class, Dera Ghazi Khan, whereby the suit for declaration filed by the respondents/ plaintiffs was decreed.

2. The brief facts are that the plaintiffs/respondents on 26.06.2000 filed a suit for declaration that they being legal heirs of Mst. Bhirawan daughter of Gaman are entitled to inherit 1/7 share from the inheritance of Gaman. The case pleaded by them is that Gaman was having three sons namely Mehram, Goharam and Ghulam Muhammad, a daughter Mst. Bhirawan and a widow Mst. Jannat. Mehram was having a son Budha, who died issueless and Goharam died unmarried. Therefore, the suit against Ghulam Muhammad. It is the case of plaintiffs that Gaman was owner of land in three Mouza-Jat and by misrepresentation and fraud the mutation was attested in favour of sons only by disinheriting his daughter Mst. Bhirawan and his widow, who are successors of Mst. Jannat. It is pleaded that after the death of Gaman, his son Mehram passed away and thereafter Goharam also passed away and share from their inheritance was received by the predecessor of plaintiffs. It is pleaded that after the death of Mehram, his son Budha survived him. It is further pleaded that the legal heirs of Gaman i.e. Mst. Jannat widow, Goharam and Ghulam Muhammad, the defendant alienated the land of Mouza Kotla Sikhani measuring 03-kanals 01-marla to Mst. Jannat wife of Mitha through mutation No.410 attested on 09.10.1971. It is further pleaded that Goharam and the defendant Ghulam Muhammad also sold out the remaining land owned by them, land measuring 05-kanals 17-marlas to Qadir Bakhsh son of Mitha Khan Khalol and they have not been impleaded as defendants as the sole defendant i.e. Ghulam Muhammad is having land in other Mouza-Jat i.e. Mouza Chorta, Kot Haibat and Mouza Chorta Pachahid Shumali. Therefore, the entitlement of plaintiffs can be made good from the said Mouza-Jat.

3. The written statement was filed and suit was contested. It was pleaded that under the custom mutation of inheritance of Gaman was attested in accordance with the prevailing customary law of inheritance and only the sons were to inherit agricultural land and the female heirs were not entitled to inherit, therefore, the daughter as well as widow were not given any share. It is further stated that the mutation of inheritance was attested even before 1940 and suit was not maintainable and was also time barred. It is further stated that since the year 1937 the defendant was in possession and as such the suit was not maintainable.

4. Learned trial court framed the issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the completion of trial vide judgment and decree dated 23.02.2007 suit was decreed by the learned trial court. Feeling aggrieved thereby, an appeal was preferred before the learned first appellate court, which was dismissed vide judgment and decree dated 02.07.2009. Hence, this civil revision.

5. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.

6. The mutation of inheritance of Gaman is Ex.P-18, which was attested on 30.08.1940 showing three sons of deceased namely Mehram, Goharam and Ghulam Muhammad. The defendant/ predecessor of petitioners produced copy of Register Rewaj-e-Aam for the year 1920 as Ex.D-1 showing question No.28, which relates to Baloch caste. According to the Register Rewaj-e-Aam (Ex.D-1) in case of death of a person the female heirs i.e. the widow, the daughter or the sister does not inherit, rather the sons inherit the deceased. In case the deceased has no son, the ancestors take the inheritance and in that eventuality, the female takes the property for her subsistence as limited owner. This document has been, though discussed by the learned first appellate court but has rejected the same on the ground that it relates to Khosa Tribe, whereas the parties to the litigation are Khalol. The observation of learned first appellate court that the defendant failed to prove that Baloch Khalol is sub caste and branch of Tumman Khosa Tribe. The statement of PW-1 is sufficient to rebut these findings and further Ex.D-1 relates to Baloch Tribe. All the sub, castes and branches cover in the said Rewaj-e-Aam. I have gone through the evidence. One of the plaintiffs when appeared as PW-1 admitted that he is Khosa by caste. Khalol is sub caste of Khosa, which relates to Baloch Tribe. To this extent the interpretation of evidence by both the learned courts below is absolutely wrong and not sustainable under the law. The question is very simple. The inheritance was opened in the year 1940 and mutation of inheritance (Ex.P-18) was attested on 30.08.1940 in accordance with custom. The custom of Baloch Tribe has been proved through abstracts from the Rewaj-e-Aam Ex.D-1, which is unrebutted document. In these circumstances, when onus of issue No.5 was upon the plaintiffs, they miserably failed to discharge the onus of the issue. The other mutations of inheritance relate to the year 1995 etc, which have no effect upon the inheritance mutation in issue. As admittedly after the enforcement of the Punjab Muslim Personal Law (Shariat) Act, 1948 with regard to the agricultural property the matter of inheritance to be governed in accordance with the Shariat and the previous transaction and attestation of mutation and devolving of the property in accordance with custom, became past and closed transactions. While relying upon the celebrated judgments of august Supreme Court of Pakistan reported as "PLD 2012 Supreme Court 501 (Ghulam Haider and others v. Murad through Legal Representatives and others)" I would like to quote Paragraph No.11 from the judgment (PLD 2012 SC 501) for ready reference as under:-- "

11. In view of the conclusions arrived at by us above the entire land acquired by Murad through Mutation No.4536 attested on 29.10.1944 under the customary law of inheritance was to be deemed to have been acquired by him under the Muslim Personal Law (Shariat) and, thus, Mst. Bano's suit filed against that acquisition had to fail and the learned Judge-in-Chamber of the Lahore High Court, Multan Bench, Multan was quite justified in holding so. However, as regards Murad's suit filed against Mutation No.5631 attested on 28.02.1959 in favour of Mst. Sehati and Mst. Bano the said suit should also have failed because the land subject matter of that mutation had never been formally "acquired" by Murad before March 15, 1948. Section 2-A introduced through Ordinance XIII of 1983 was applicable only to those acquisitions of agricultural land which acquisitions had come about prior to March 15, 1948 and in the case of the land subject matter of Mutation No.5631 there was no formal acquisition of that land by Murad till attestation of that mutation on 28.02.1959 and, thus, after March 15, 1948 the said land could have devolved upon the heirs of Lal deceased only under the Islamic law of inheritance and not under the customary law of inheritance which by then had become extinct. In this view of the matter the suit filed by Murad challenging Mutation No.5631 attested on 28.02.1959 was liable to be dismissed."

7. Admittedly the transaction of sales by the defendant and Goharam took place in the year 1971 in favour of Mst. Jannat and Qadir Bakhsh etc, as pleaded by the plaintiffs in the plaint. Said transactions have not been challenged by them in suit in hand. Further the predecessor of plaintiffs namely Mst. Bhirawan died in the year 1998 and she never disputed the attestation of impugned mutation in her life time in favour of sons of the deceased and the plaintiffs filed the suit even two years after the death of Mst. Bhirawan. Therefore, the suit was patently barred by time. Light can be taken from the judgment of august Supreme Court of Pakistan reported as "2016 SCMR 1403 (Ghulam Abbas and others v. Mohammad Shafi through LRs and others)". For ready reference Paragraph No.12 of the judgment is reproduced as under:-- "

12. Be that as it may, there is another important principle of law laid down by this Court which is applicable to the facts of the present case. An heir, who is directly affected by a wrongfully recorded mutation of inheritance, fails to challenge such mutation for a considerable length of time until his death, thereby deprives his heirs of locus standi to dispute such mutation on the ground of his estoppel, abandonment of claim/cause of action. Reference in this regard is made to Abdul Haq v. Surraya Begum (2002 SCMR 1330), Kala Khan v. Rab Nawaz (2004 SCMR 517) and Muhammad Rustam v. Makhan Jan (2013 SCMR 299). The appellant's suit is not maintainable under that principle as well." It is now settled law that the question of limitation cannot be considered a technicality. Even in the matter of inheritance a suit must be filed within the prescribed period of limitation and only on the basis that the matter relates to the inheritance the limitation be ignored is not a valid stance or ground. Reliance can be placed upon the judgments of august Supreme Court of Pakistan reported as "2011 SCMR 8 (Muhammad Islam v. Inspector General of Police, Islamabad and others), PLD 2013 Supreme Court 392 (Farman Ali v. Muhammad Ishaq and others) and PLD 2014 SC 167 (Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others)".

8. The argument of learned counsel for the petitioners has weight that the learned first appellate Court has not decided the matter in accordance with the procedure, as the findings have not been given issue wise and further no question for determination was formulated. Therefore, the findings recorded by the learned first appellate court are defective one. The argument gets support from the judgment of august Supreme Court of Pakistan reported as "2009 SCMR 589 (Gul Rehman v. Gul Nawaz Khan)". Learned first appellate court was bound under the law to decide the matter independently issue wise and banking upon the findings of learned trial court is not correct procedure adopted by the learned appellate court. Further the court was bound to look into the question of limitation itself in the light of section 3 of the Limitation Act, 1908. Reliance can be placed upon the judgment reported as "PLD 1985 Supreme Court 153 (Hakim Muhammad Buta and another v. Habib Ahmad and others)":

9. The resume of above discussion is that the findings recorded by both the learned courts below while passing the impugned judgments and decrees are not sustainable under the law discussed supra. Therefore, this civil revision is allowed and the impugned judgments and decrees passed by two courts below are set aside. The result would be the suit for declaration filed by the respondents/ plaintiffs shall stand dismissed. ZC/A-35/L Revision allowed.