2007 PLP 305 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

These petitions have been filed for leave to appeal against the judgment, dated 2-2-2005 passed by Lahore High Court, Multan Bench.

2. Precisely stating the facts of the cases are that Ghulam Mustafa, predecessor-in-interest of the petitioners, originally a Hindu by faith, converted to Islam in 1947. The Hindu name of Ghulam Mustafa was Esher Mal and on death of his father, the mutation of inheritance of the landed property left by his father was sanctioned in his name on 30-1-1928.. In consequence to his conversion to Islam, a mutation in respect of change of his name was attested on 18-4-1948 and entries in the Revenue Record were made accordingly. Subsequently, Ghulam Mustafa made certain alienations of his land during the period between 1958 to 1965, in favour of respondents. The petitioners, successor-in?interest of Ghulam Mustafa during his life time tiled separate suits in 1981 wherein they sought a declaration that their father was limited owner under custom and alienations of the property made by him were contrary to the customary law. Ghulam Mustafa in the written statement filed by him pleaded that he was a Muslim and after enforcement of West Pakistan Muslim Personal Law (Shariat) Application Act, 1948, the property owned by him would no longer be subject to the provisions of customary law and transactions of sale were made by him as full owner. The petitioner on death of Ghulam Mustafa filed an amended plaint and also sought a decree for the possession of the suit-land. However, the learned trial Court vide judgment, dated 19-3-1989 dismissed the suits being barred by time and also for the reason that the title of the defendants who were bona tide purchasers for valuable consideration was protected under law. In appeals filed by the petitioners the learned District Judge after framing three additional issues (No.10-A to 10-C), sent the case to the learned Civil Judge for recording the evidence and decision on the additional issues and the trial Court after doing the needful, sent the case back to the Appellate Court. The learned District Judge, vide judgment, dated 31-12-1995 dismissed the appeal and the petitioners filed separate revisions petitions before the High Court which met the same fate and were dismissed vide consolidated judgment dated 4-1.2-1998. The petitioners assailed the judgment of the High Court before this Court by way of filing separate C.P.L.As. which were converted into appeals and allowed on 7-11-2002 whereby case was remanded to the High Court for fresh decision on all the issues including the question of limitation. In the post-remand proceedings, learned High Court vide impugned judgment dismissed the revision petitions inter alia with the following observations: "Needless to state that he alienated the property as a Muslim owner. The custom having been declared to be void by a competent authority even within the meaning of un-amended section 5 of the Punjab Laws Act, 1872 and the derogatory provision having already been removed by the competent Legislature, there can possibly be no restriction on the powers of Ghulam Mustafa to alienate the land which could be enforceable under the Hindu Customary Law, as is being sought to be done by the petitioners in these cases." Learned counsel for the petitioners contended that the findings recorded by the High Court were contrary to the law declared by this Court in Mst. Khatun v. Malla and 5 others 1974 SCMR 341 wherein it has been held that notwithstanding the' enforcement of West Pakistan Muslim Personal Law (Shariat) Act, 1948 and 1951 the ancestral property obtained by a person being governed by custom would remain subject to the agricultural custom. After hearing the learned counsel and having gone through the judgments dated 7-11-2002 passed by this Court in Civil Appeals Nos.744 to 749 of 1999 in the same matter, we are inclined to grant leave to appeal inter alia to examine the question whether the property owned by a Muslim which was being governed by the agriculture custom before enforcement of West Pakistan Muslim Personal Law (Shariat) Application Act, 1948 and 1951 would continue to be governed by the customary law as was observed by this Court in the judgment referred A above Mst. Khatun v. Malta and 5 others 1974 SCMR 341 or the view taken in Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407 would prevail and the limited owner would not acquire the status of full owner under the law. The question whether restriction on the alienation would be justified and would not be in conflict to the fundamental right of a person and law of Shariah, would also require examination. Leave to appeal is accordingly granted in all these eases. M.H./Z-16/SC???????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.