2002 PLP 1000 (SCMR)

MUNIR A. SHEIKH, J.‑‑‑Mst. Raeeso, widow of Sheikh Muhammad alias Shafi Muhammad, who died in India was allotted evacuee land in lieu of her claim regarding land owned by Sheikh Muhammad alias Shafi Muhammad as his widow. She sold the entire land allotted to her in favour of her nephews‑present petitioners through Mutation No.94 dated 26‑8‑1963. 2 Respondents filed a suit, from which this petition has arisen, for recovery of possession of the land on the ground that Mst. Raeeso was a limited owner of the land, therefore, could not alienate the same under Custom of Zamindara, by which she was governed. This suit was contested on merits, Objections were also raised about limitation and also that the suit had not been properly valued for the purpose of court‑fee. It may be mentioned here that the suit was valued at Rs.16.000 which was the sale price of the land mentioned in the disputed mutation.

3. Trial Court held that the sale in dispute having been made in the year 1963, therefore, suit filed within 12 years of the said date was within limitation. On the issue of court‑fee, it was held that no evidence was produced by the present petitioners, who had objected to the correctness of the valuation, on whom onus of the relevant issue was placed, therefore, the said issue was decided in favour of respondents/plaintiffs. Suit was decreed through judgment dated 29‑3‑1979 by holding that Mst. Raeeso was holding the estate as limited owner, therefore, could not alienate the same under custom in favour of petitioners by way of sale.

4. In the memo. of appeal, petitioners raised objections not only against findings on merits but also on the issue of limitation and court‑fee. They also filed an application for permission to lead as additional evidence copy of Jhar Pedawar obtained by them after the decision of the suit by the trial Court, without mentioning as to for what reasons they were prevented from obtaining and filing it with the written statement or at the time of recording of evidence by the trial Court. The Appellate Court did not make mention of this application in its judgment for the same may not have been pressed 'during the arguments. Findings recorded by the trial Court were . affirmed and the appeal dismissed through judgment dated 12‑12‑1982. Second appeal filed by the petitioners has also been dismissed through the impugned judgment dated 16‑11‑2000, against which leave is sought, Learned counsel for the petitioners submitted that, without disposal of application of the petitioners to lead additional evidence in appeal, First Appellate Court could not decide the appeal on merits, therefore, judgment of said Court stood vitiated on that ground. .

5. We do not find ourselves in agreement with the argument of the learned counsel for in the written statement it was not averred that according to Jhar Pedawari the amount of 15 times net profit accruing from the land in the preceding years was more than what was stated in the plaint as price of the land mentioned in the mutation, therefore, the trial Court rightly held that the petitioners failed to discharge onus of the said issue placed on them. Application made before the First Appellate Court for permission to produce Jhar Pedawari may not have been dealt with expressly by the said Court but we find that no reason was‑ given in the said appeal as to why the same had not been produced at the relevant time, therefore, apart from the fact that it can safely be found to have not been pressed, judgment passed by the First Appellate Court does not suffer from any legal infirmity. Dealing with the question of limitation, it was rightly held by the Courts below that limitation in this case was to start from the date when alienation in dispute was made as such the suit filed within 12 years therefrom was within limitation. Learned counsel for the petitioners submitted on the strength of rule laid down in case Ahmad Din v. Muhammad Shafi (PLD 1971 SC 762) that order of mutation was to be challenged within six years. In the reported case it was not a mutation based on private sale between two persons whereas it was a mutation sanctioned by Rehabilitation Authorities about the inheritance of right‑holder i.e. the claimant, which mutation itself by its own force created rights, therefore, the same was required to be challenged as an act of the public functionary within six years, as such rule laid down in the said judgment is not applicable in the present case. Mst. Raeeso sold the property in favour of the petitioners on 26‑8‑1963, therefore, the same was the date when the title or right of the respondents‑plaintiffs shall be deemed to have been denied, which gave rise to a cause of action to file the suit for before that on the termination of limited interest in the estate according to the E provisions of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the parties became joint owners of the land by way of inheritance, therefore, possession of a joint owner could not be treated as possession adverse to the other joint owners. Possession of the petitioners became objectionable to the respondents when Mst. Raeeso denied their right and claimed herself to be the sole owner and transferred the land through the said mutation, therefore, findings on the issue of limitation are also in accordance with law and we hereby affirm the same.

6. Learned counsel for the petitioners on the strength of principle laid down in the case of Mst. Zeenat Begum v. Mst. Iqbal (PLD 1991 SC 427) attempted to argue that according to the said principle, a person inheriting ancestral property under custom has right of sale without any limitation.

7. We have gone through this judgment and find that the said observation has been made with reference to the rule laid down in the case of Federation of Pakistan v. Muhammad Ishaque (PLD 1983 SC 273). In the said case of Muhammad Shafi. (supra), the said principle was laid down in respect of power of alienation of a male heir inheriting ancestral property under custom, for under the custom, such an heir though had inherited the property as full owner could not sell the same without legal necessity and it was this limitation about which it was ruled that the same was against the Injunctions of Islam, therefore, was no more applicable. In the case of Mst. Zeenat Begum (supra), we have observed that the learned Judges have otherwise held that a widow holding the estate as life estate after the death of male owner during her lifetime till her death or remarriage was not vested with the power to transfer the property as full owner. There is a difference of inheritance by a male owner of ancestral property as full owner and limitation on his power to alienate the property only for legal necessity and a female holding the estate not as owner but during (her lifetime or till remarriage for her maintenance, therefore, both cannot be equated as argued by the learned counsel for the petitioner. Consequently this argument has no force, for Mst. Raeeso was holding only limited interest in the land and after the termination of her/said interest, she was entitled only to a share in the land allocated to her under the Mohomedan Law as widow and was entitled E to sell her own share only and not beyond that, therefore, the findings of the Courts below that she was not full owner as such could not transfer the land by way of sale suffer from no illegality.

8. Learned counsel for the petitioner submitted that Mst. Raeeso was issueless widow, therefore, she had inherited 1/4th share as such under the Mohomedan Law was owner of the land to the extent of said share, therefore, the sale made by her about the entire land was valid to the extent of her own 1/4th share whereas none of the C6urts have attended to this aspect of case and declared the sale made by her as a whole void and ineffective against the rights of reversionaries/ respondents‑plaintiffs.

9. This argument has considerable force., therefore, leave is granted to consider this limited question only.

10. In the meantime, the possession of the petitioners over the land in dispute shall not be disturbed except through process of the Court for the petitioners for the time being shall be deemed to be in possession of the land as joint owners to the extent of 1/4th share. However, this stay is subject to their furnishing security for the payment of mesne profits to the extent of 3/4th share of the respondents in the land within two months to the satisfaction of the trial Court in case they fail in this appeal. S.A.K./S‑170/S Order accordingly.