1987 PLP 54 (SCMR)

Date of hearing: 17th October, 1986. NASIM HASAN SHAH, J.‑‑Leave of this Court is sought against the judgment, dated 19‑2‑1984 passed by a learned Single Judge of the Lahore High Court in R .S . A . No.288 of 1978. The relevant facts are that one Allu son of Mamoora, the last male owner of a piece of agricultural land measuring 122 Kanals 3 Marlas situated at village Bars, Ghar, Tehsil Nankana Sahib, District Sheikhupura, died on 22‑4‑1939. On his demise, the land was mutated, under custom, in the name of his two daughters, namely, Mst.Rani and Mst. Daulan vide Mutation No. 147, dated 3‑5‑1939. His daughter Mst.Rani contracted a marriage in 1941 and her share in the land in question was transferred in favour of Mst. Daulan, petitioner No.1 herein, vide Mutation No.195, dated 14‑2‑1942. After the death of Mst.Rani, who had died issueless, Mst.Daulan continued to enjoy the suit land. In 1945, she also contracted the marriage with Imam Ali, petitioner No.2 herein, and the latter transferred the land in dispute in his favour by a sale on 31‑3‑1962 vide Mutation No.384. The petitioner No.2 thereafter came in occupation of the land. On 18‑10‑1975. Mst.Jadan and Mst.Rehmai, the two sisters of Allu deceased (who are now represented by their successors) filed a suit for a declaration that they were the owners in possession and that the sale in favour of Imam Ali, petitioner No.2 herein, vide Mutation No.384, dated 31‑3‑1962, was wrongful, illegal, void and ineffective quo their right. The suit was resisted by the petitioners herein besides controverting the assertions of the plaintiff that they were in possession over the land since 1939. They also resisted the suit by raising preliminary objections regarding limitation and non‑maintainability of the suit under section 42 of the Specific Relief Act. The pleadings of the parties gave rise to ten issues of which the following two are relevant for our purposes:‑ (i) Whether the suit is within limitation? O.P.P. (ii) Whether the suit is hit by the provisions of section 42 of the Specific relief Act? 0 . P . D . The learned trial Judge found all the issues in favour of the plaintiff and decreed their suit on 15‑2‑1978. The defendants (petitioners herein) filed an appeal against the judgment and decree by the same was dismissed by the Additional District Judge on 4‑4‑1978 who held that the limited estate stood terminated on 31‑12‑1962 when the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, came into force and that Mst.Daulan had no right to sell the property in favour of her husband. He also held that the plaintiffs were in joint possession of the property being co‑sharers and, therefore, the question of limitation did not arise nor was the suit hit by the proviso of section 42 of the Specific Relief Act. The petitioners herein then filed a Regular Second Appeal in the Lahore High Court (R.S.A. No.288 of 1978) but that too was dismissed by a well‑considered judgment, on 19‑2‑1984. Hence this petition for leave to appeal. We have heard Mr. Hussain Muhammad Naqvi in support of this petition and Mr. Muhammad Ghani on behalf of the respondents (who appeared in support of the caveat filed on behalf of the respondents). We find no ground for interfering with the findings recorded by, the Courts below which, we note, have been given after proper consideration of all aspects of the questions agitated before them. M.I. Petition dismissed.