2008 PLP 1054 (SCMR)

KARAMAT NAZIR BHANDARI, J.

The parties are contesting succession to the estate of Mst. Noor Illahi who died in the year 1963 leaving behind agricultural lands in Mauza Sahooka Tehsil and District Pakpattan and Mauza Naseera Jodeka Tehsil and District Bahawalnagar, amongst others. Mst. Noor Illahi was survived by two daughters, and Noor Ahmed, her real brother. Mutation in respect of her inheritance was sanctioned in the revenue estate of Mauza Naseera Jodeka treating her to be full owner 2/3rd went to two daughters and 1/3rd to Noor Ahmed, her real brother. In respect of other revenue estate i.e. Mauza Sahooka, the mutation was sanctioned treating her to be limited owner. Part of the land was mutated in favour of Amir Khan, the collateral of husband of Mst. Noor Illahi. The petitioners are the successor-in-interest of the said Amir Khan. Initially the parties litigated before the Revenue officials. Finally, as Noor Ahmad had died, his heirs filed a suit for declaration that they were entitled to succeed and, therefore, were owners to the extent of 8/24th shares in the land of Mst. Noor Illahi located in Mauza Sahooka. It was asserted in the plaint that Mst. Noor Illahi was a full owner and succession to the estate is governed by the Muslim Personal Law. The petitioners contested the suit on various grounds including the limitation. It was asserted Mst. Noor Illahi was a limited owner and therefore, her brother Amir Khan was entitled to succeed to the extent of 7/24th share. The suit was brought in the year 1978. The trial Court held that Mst. Noor Illahi was full owner of the land and her succession is to be governed by the Muslim Personal Law and not by the customary law. The suit was however, dismissed on the ground of limitation by the Civil Judge, Pakpattan Sharif vide judgment dated 24-11-1987. On appeal before the Additional District Judge-II, Pakpattan Sharif, the judgment and decree was affirmed on 15-6-1991. Plaintiffs-respondents filed Civil Revision (C.R. No.551-D of 1991) in the Lahore High Court, Multan Bench. The High Court following the principle laid down in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 set aside the finding on Issue No.3 (limitation) and decreed the suit.

2. In support of this petition for leave to appeal, it is urged that the High Court should have restrained from interfering in revisional jurisdiction as the findings on the question of limitation were concurrent. He submits that as the Collector accepted the claim of the petitioners and the revision filed by the respondents-plaintiffs before the Commissioner was dismissed for non-prosecution in the year 1964, the suit filed in the year 1978, after 14 years, has to be held; as barred by time.

3. The contention has no force. The High Court has correctly held that in the circumstances of the case, no limitation runs against co-owners. Both the trial Courts as well as the appellate Court erred in the exercise of their jurisdiction while holding that the suit was barred by time. This view is contrary to the law declared by this Court in Ghulam Ali's case (supra).

4. The High Court has correctly held that Mst. Noor Ellahi was full owner and that in any case, petitioners have not been able to establish the alleged custom.

5. This petition is without merits and is hereby dismissed. Leave is refused. H.B.T./M-212/SC Petition dismissed.