1989 PLP 4999 (MLD)

SAJJAD AHMAD SIPRA, J. [26‑2‑1989].‑‑It is stated that the learned counsel for the petitioner is away to Lahore to appear before the Hon'ble Supreme Court. The learned counsel for the petitioner has also submitted an application for adjournment for‑the said reasons. Adjourned. ORDER MUHAMMAD MUNIR KHAN, J. [6‑3‑1989].‑‑On 4‑2‑1989 Qadir Bakhsh and 3 others, the petitioners filed suit for declaration to the effect that they were exclusively owners in possession of the suit land measuring 34 kanals and 10 marlas situate in village Meeru Baloch, Tehsil Chishtian, so mutations No.424 dated‑ 75‑5‑1970, Judgment of Assistant Collector dated 10‑8‑1979, inheritance mutation No. 644 dated 16‑7‑1980 and registered sale‑deed dated 28‑9‑1980, were illegal and ineffective upon their rights, against Mst. Zaiban and 6 others. The suit was resisted and 5 issues were framed. The parties led evidence. The trial Court dismissed the suit on 11‑12‑1984. The appeal filed by Qadir Bakhsh and others, the petitioners failed on 13‑9‑1988, hence this revision.

2. Before me, the learned counsel has challenged the findings of the Courts below on issues No. l and 2, which are as under:‑ (1) "Whether the plaintiffs are the owners in possession of the suit property? OPP. (2) Whether Mutation No. 424 dated, order passed by / Collector dated 10‑8‑1979, mutation No. 644 dated 16‑7‑1980 and sale‑deed dated 28‑9‑1980, are illegal, void and ineffective against the rights of the plaintiffs"? OPP. Learned counsel for the petitioner contended that the parties were governed by custom before 1948 and Karim Bakhsh, the predecessor‑in‑interest of the parties had died in the year 1938, so inheritance could not devolve on the respondents under Muslim Personal Law and that the subsequent mutation No.644, is against the provisions of Muslim Personal Law, inasmuch as, her daughter Mst. Zaib Elahi and Sharaf Elahi could get 2/3rd and the remaining 1/3rd had to devolve on‑the petitioners, brothers of the deceased.

3. I have considered the submission made by the learned counsel with care. I find that issue No.1 is almost an issue of fact. The Courts have concurrently found this issue against the petitioners. Learned counsel has not been able to point out any misreading/non‑reading of evidence by the Courts below. The fate of issue No.2 almost depends on the decision of issue No.1. I find that both the Courts below have properly attended to the question as to whether the parties were governed by the custom or by Muslim Personal Law and have given sound and cogent reasons for the conclusions arrived at by them. There is nothing on record to show that Karim Bakhsh deceased was governed by custom. Every Muslim is presumed to be governed by the rule of Muhammadan Law unless it is proved that he was governed by the custom. Mst. Ehsana and Mst. Khana were entitled to inherit the estate of their father in accordance with Muslim Personal Law. Mst. Zaiba and 5 others, respondents Nos.l to 6 have transferred the property through mutation in favour of Qazi Muhammad Hussain in the presence of Qadir Bakhsh but he did not raise any objection at that time. Furthermore respondents Nos. 2 to 6 being the legal heirs in whose favour mutation of inheritance had already been attested, could sell their property to Qazi Muhammad Hussain respondent No.7 and there was no legal bar on their alienation of their property to anyone. Learned counsel has not been able to point out any illegality, material irregularity or jurisdictional error in the judgments. For what has been said above, there being no merit, the revision is dismissed in limine. H.B.T./Q‑25/L Revision dismissed.