2021 PLP 786 (CLC)

RAJA SAEED AKRAM KHAN, ACJ.

This appeal by leave of the Court is addressed against the judgment and decree of the High Court dated 08.03.2019, whereby the appeal filed by the appellants, herein, has been dismissed.

2. The facts giving rise to this appeal as alleged are that the predecessor-in-interest of the respondents filed a suit for permanent injunction against the appellants, herein, in respect of the land comprising Survey Nos.613 and 731/1, measuring 8 kanal 7 marla, situate at village Moji Chattar Gam, Tehsil Leepa, in the Court of Sub Judge Hattian Bala on 02.04.1989. It was averred in the suit that the plaintiff is owner in possession of the suit land to the extent of her share. She constructed a house over the said land and the defendants intended to interfere with the peaceful possession of the plaintiff. The predecessors of the appellants, herein, filed a cross suit for declaration-cum-possession and cancellation of entries recorded in the revenue record in respect of the suit land in the same Court. They claimed that Mst. Ilam Jan and Nashan had got no right in the inherited property of Bula Meer due to solemnization of their Nikah in the Dogra Regime. The trial Court consolidated both the suits and after necessary proceedings decreed the suit filed by the appellants, herein, and dismissed the suit filed by the respondents vide its judgment dated 05.12.2016. The respondents, herein, filed an appeal in the Court of District Judge, Jhelum Valley on 14.12.2016. The learned District Judge while accepting the appeal of the respondents set aside the judgment and decrees passed by the trial Court and decreed the suit filed by the respondents and dismissed the cross suit filed by the appellants, herein. Feeling dissatisfied, the appellants, herein, filed an appeal before the High Court. The learned High Court vide impugned judgment and decree dated 08.03.2019, dismissed the appeal, hence, this appeal by leave of the Court.

3. Ch. Amjad Ali, Advocate, the learned counsel for the appellants filed the written arguments, alleging therein, that the impugned judgment is against law and the facts of the case. Both the appellate Courts below failed to appreciate the evidence brought on record in its true perspective. The concurrent findings recorded by the appellate Courts below are based on misreading and non-reading of evidence, hence, interference by this Court is warranted under law. It has further been contended that the marriage of the predecessor of the respondents, Mst. Nashan, was solemnized in the Dogra Regime and in view of the custom prevailing at that time, the females had no right in the inheritance, but this aspect of the case has not properly been appreciated by the appellate Courts below. Furthermore, it is proved from the evidence brought on record by the appellants that a piece of land was temporarily given to the respondents' predecessor by the appellants' predecessor for residential purpose; therefore, she had no right to claim the ownership of the same. In the written arguments, while reproducing the different portions of the statements of the witnesses produced by both the parties, the learned counsel tried to convince the Court that the claim of the appellants is supported by the cogent evidence. The reference has been made to the case law reported as Akhtar Khan and 9 others v. Sarwar Khan and 12 others [2003 YLR 2812], Muhammad Irshad and 11 others v. Mst. Hanifa Begum and 8 others [PLD 2007 SC (AJ&K) 20], Muhammad Rasheed and another v. Muhammad Bashir and another [2009 SCR 237], Muhammad Riaz and 14 others v. Kala Khan and 18 others [2104 MLD 1759] Muhammad Qasim v. Muhammad Yousaf and 26 others [2016 SCR 519], Mst. Abdul Bi (deceased) through LH v. Collector Land Acquisition and 3 others [2016 SCR 1338] and Abdul Hameed Khan and another v. Mst. Para Begum and 6 others [2017 SCR 269].

4. Respondent No.1 appeared in person and also filed the written arguments, stating therein, that the respondents by producing evidence proved their case, therefore, the first appellate Court rightly decreed the suit in their favour and the learned High Court has not committed any illegality while upholding the judgment and decree passed by the first appellate Court. It has been averred that the revenue record as well as the reports of the local commissions, appointed by the trial Court, also fully support the respondents' version. The predecessor-in-interest of the respondents was entitled to the inheritance in accordance with Sharia and the story narrated by the appellants that the marriage of the respondents' predecessor was taken place in Dogra Regime and according to the custom prevailing at that time she was not entitled to get the share in the inheritance, is not supported by any evidence and also against the spirit of Islam.

5. We have paid our utmost attention to the written arguments filed by both the parties, carefully examined the record and also considered the case law referred to by the learned counsel for the appellants. From the record it is an admitted position that the predecessor-in-interest of the respondents, Mst. Nashan, was the real sister of the predecessor-in-interest of the appellants, Suleman. After perusing the contents of the plaint filed by the appellants' predecessors and the other material made available on record, it appears that the sole claim of the appellants' predecessors as well as the appellants is that Mst. Nashan was not entitled to get the share in the inheritance of her father due to the reason that her marriage was solemnized in the Dogra Regime and according to the custom prevailing at that time, the married females were excluded from the inheritance. The relevant portion of the plaint filed by the appellants' predecessors is reproduced here which reads as under: - Firstly, no documentary proof is available on record to substantiate that the marriage of the respondents' predecessor was taken place in Dogra Regime and at that time it was mandatory that the subjects were governed by the custom and secondly in the Holy Quran the Allah Almighty has already determined the share of the females in the inheritance and the Muslims are bound to perform all the acts according to the command ordained by Allah Almighty. In this regard, some relevant versus of the Holy Quran with Urdu translation are reproduced hereinunder: - After such clear command by the Creator of the Universe there is no space for implication of any other law. Even otherwise much water has been flown under the bridge and now the superior Courts have unanimously declared that if there is any contradiction between the Codified law and the Sharia law then the Sharia law shall prevail. For instance, reference may be made to a case law reported as Bilawr Khan v. Amir Sabar Rahman and others [PLD 2013 Peshawar 38], wherein while dealing with the proposition it has been held that: - "Whenever there is a conflict between the law of Sharia and the Codified law, the former shall prevail." Moreover, the Azad Jammu and Kashmir Interim Constitution, 1974 clearly provides that the Islam shall be the State religion and the steps shall be taken to enable the Muslim State subjects, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah. It has been admitted by the appellants that in the Dogra Regime their forefathers were Muslims; whereas, a Muslim is the person who accepts the way designated by Allah Almighty and bend himself before the will of Allah. If for the sake of arguments, it is assumed that the marriage of the respondents' predecessor was solemnized in the Dogra Regime, even then, the claim of the appellants cannot be accepted especially when they failed to substantiate that in the Dogra Regime there was any ban imposed on the Muslims to give the shares to the females in the inheritance. It may be observed here that claiming the right on the basis of such custom which is clearly contradictory to the spirit of Quranic verses, by a Muslim, is above understanding and shameful act, it will be disobedience and violation of the Allah Almighty's command if such claim is accepted. The Allah Almighty in the Qur'anic verses Nos. 29 to 33 of Surah Al Nisa has also warned that no one should usurp the property of others. The English translation of the relevant versus reads as under: - 29-30 "O believers, do not devour one another's property by unlawful ways; (instead of this) do business with mutual consent. And do not kill yourselves; believe it that Allah is Compassionate to you. We shall throw into the fire the one who commits such acts of aggression and injustice; and this is very easy for Allah.

31. If you abstain from the heinous sins which you are being forbidden, We will remit your trivial offences and admit you to a place of honour.

32. And do not cover what Allah has given some of you more than others: the men shall have their due share according to what they have earned and the women shall have their share according to what they have earned. So pay to Allah for his bounty; most surely Allah has perfect knowledge of everything.

33. We have pointed out rightful heirs to the inheritance which is left by parents and relatives. As for those with whom you have made a pledge, do give them share: most surely Allah is watching over everything." Thus, in the light of the above discussion, we are unable to accept the claim of the appellants that in view of the custom prevailing in the Dogra Regime, the appellants' predecessor, Mst. Nashan, was not entitled to get the share in the inheritance of her father.

6. Another aspect of the case is that the appellants challenged the entries made in the revenue record in the year 1980, after a lapse of considerable time on 04.01.1994. The respondents' predecessor filed suit in the year 1989, even then the appellants remained mum for a longtime and no explanation in this regard is available on record. One of the arguments of the learned counsel for the appellants that survey No.613, is not ancestral property rather the same was purchased by the appellants' predecessors although is against the pleadings of the appellants as they never took such stance in the written statements or in the plaint, even otherwise, the decree has been passed in favour of the respondents to the extent of share of Mst. Nashan in the inheritance of her father, therefore, such argument is not of worth consideration. The decree passed in favour of the respondents by the learned District Judge reads as follows: - After examining the record, we are satisfied that the learned District Judge after scanning the evidence brought on record and appreciating the relevant law on the subject has passed a well-reasoned judgment and the learned High Court rightly upheld the same; therefore, interference by this Court is not warranted under law. For the above stated reason, this appeal having no force stands dismissed with no order as to cost. SA/3/SC(AJ&K) Appeal dismissed.