2019 PLP 2067 (CLC)

SYED ARSHAD ALI, J.

Through the instant civil revision, the present petitioner has challenged the concurrent findings of both the Courts below, whereby Suit No.86/1 which was filed by the respondent/plaintiff claiming her Shari share in the legacy of the common predecessor of the parties late Bekar was concurrently decreed in her favour.

2. Essential facts of the case are that the respondent/plaintiff No.1 Mst. Salika on 17.05.2012 had filed a Suit No. 86/1 wherein she alleged that the suit property initially belonged to the common predecessor of the plaintiff and defendants Nos. 1 to 5 deceased Bekar. However, in the settlement proceedings not only the plaintiff but others females descendants of Bekar were illegally deprived of their right in his legacy. She has also challenged certain mutations which were subsequently executed by the defendants Nos. 1 to 5 in favour of other respondents/purchasers.

3. On being summoned, the defendant No.1 appeared and contested the suit in his written statement. One of the contentions of the present petitioner/defendant was that the plaintiff had sold more than her share in the legacy of late Bekar. He has also stated that the defendants Nos. 2 to 5 who are his sisters had gifted their shares in his favour.

4. The said controversy was narrowed down by the trial Court by framing as many as 11 issues. Accordingly, the parties were allowed the opportunity to produce their respective evidence, which they had fully availed. On conclusion of the trial, the learned trial Court had partially decreed the claim of the plaintiff/respondent No. 1 vide judgment and decree dated 30.03.2013 to the extent of her share in the property of Bekar, however, certain share in the property which was sold by the defendant No.1 through impugned mutations was protected under section 141 of the Transfer of Property Act. It was further ordered that in lieu of the said property the share of the plaintiff shall be adjusted from other properties or else the defendant will be bound to pay the market value of the same.

5. Being aggrieved, the present petitioner had challenged the said judgment and decree of the trial Court through Civil Appeal No.38/13, which was also dismissed by the learned appellate Court vide impugned judgment and decree dated 26.03.2015. Hence, the present petition.

6. The main thrust of the arguments of learned counsel for the petitioner was that indeed the suit was barred by time and plea of limitation despite specifically raised by the defendant in his written statement but no issue was framed on the same and thus material prejudice has been caused to the petitioner. He has stressed that the present suit is hopelessly time-barred and in this regard he has placed reliance on "Dilmir v. Ghulam Muhammad and 2 others (PLD 2002 Supreme Court 403)", "Mst. Sughran Bibi and others v. Mst. Jameela Begum and others (2001 SCMR 772)", "Muhammad Rustam and others v. Mst. Makhan Jan and others (2013 SCMR 299)", "Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others (PLD 2014 Supreme Court 167) and "Ghulam Abbas v. Muhammad Shafi 2016 SCMR 1403", "Ananta Kumar Majumdar and others v. Gopal Chandra Majumdar and others (PLD 1961 Dacca 65)", "Mst. Zeba and 12 others v. Member-III Board of Revenue Baluchistan (1986 CLC 233 Quetta)", "Habibullah Jan and others v. M. Hassan Khan and others (1991 MLD 25 Peshawar)", "Fazal Mahmood and others v. Tajar Khan (1992 MLD 1439 Peshawar)", "Mansab Ali v. Hafizan and 5 others (PLD 1993 Lahore 1), "Muhammad Khalid and another v. Muhammad Iqbal and another (2005 CLC 970)", unreported judgment of this Court dated 13.05.2016 rendered in C.R. No. 264-M of 2014 titled "Rahim Shah and others v. Mst. Noor Jehan and others", unreported judgement of this Court dated 20.09.2017 rendered in C.R. No. 750-P/2011 titled Mst.Irshad Begum and others v. Mst. Shah Jehan and others", "Muhammad Yousaf Fazal Elahi and 35 others (2017 MLD 1997) Rawalpindi Bench Lahore").

7. Whereas the learned counsel for the respondents has argued that the law of limitation is not applicable into the cases of inheritance and has placed reliance on "Mst. Farida and 2 others v. Rehmatullah and another (PLD 1991 Supreme Court 213), "Juma Khan and others v. Mst.Bibi Zenaba and others (PLD 2002 Supreme Court 823)", "Khair Din v. Mst. Salaman and others (PLD 2002 Supreme Court 677)", "Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others (2005 SCMR 1447)" "Mst. Subhan v. Allah Ditta and others (2007 SCMR 635)", "Abdul Karim v. Haji Noor Badshah (2012 SCMR 212)", "Mosam Khan v. Sarfaraz Khan through L.Rs and others (2012 CLC 1944 Peshawar)", "Musafar v. Mst. Laz Mashal Bibi and others (PLD 2014 Peshawar 53)", "Mst. Baswara v. Hafizullah Khan and others (PLD 2015 Peshawar 30)", " Zahir Shah and others v. Shtamand and others (2016 YLR 1532 Peshawar)", " Riaz Ahmad and 5 others v. Faqir Ahmad Khan (2016 YLR 23 Peshawar),"Mst. Janat Bibi through LRs v. Aslam Khan and 13 others (2017 CLC 436)", "Mst. Soocha and 6 others v. Mst. Khuzuna Bibi and 15 others (2017 MLD 1180)", "Mst. Mumtaz Mai v. Sajjad Hussain and 4 others (2017 CLC Note 61 Multan Bench Lahore)", "Umar Farooq and others v. Humid Ali and others" (2018 CLC 254 Peshawar)"

8. Arguments heard and record of the case was perused.

9. It is evident from the claim of the plaintiff as narrated in the plaint that she is the daughter of late Bekar, whereas the present petitioner Aqalmand was the son of the Bekar and defendants Nos. 2 to 5 were also the daughters of Bekar and the suit property belonged to Bekar. However, in the settlement proceedings, the names of the female heirs were not incorporated in the revenue record as joint owners in the suit property. The defendant neither denied the relations between the parties nor had produced any document or evidence showing that he had either purchased the suit property or the said property was gifted to him by the plaintiff. However, he has alleged that the respondents Nos. 2 to 5 had gifted their shares to him.

10. The plaintiff in support of her claim produced her son Hayat-ur-Rahman as PW-3 and Amir Jawab Khan son of Zar Farosh Khan as PW-4. Whereas the Aqalmand in support of his defence appeared as DW-1 and also produced Umar Shah as DW-2. The said Umar Shah has supported the claim of the defendant by stating that the plaintiff prior to the settlement had sold certain properties, however, in cross-examination he could not state the names of the vendees who had purchased the said properties nor could place on file any document establishing that indeed the plaintiff had sold any property, hence his testimony is hearsay.

11. Indeed the defendant could not establish before the trial Court the sale allegedly made by the plaintiff of her share in the legacy of Bekar. To the contrary, it was established before both the Courts below that the suit property belonged to late Bekar who was the predecessor of both the contesting parties.

12. Thus, according to law, the plaintiff as well as the defendants Nos. 2 to 5 had a legal and Shari share in the property of deceased Bekar, however, they have been deprived of the same without any justification. It is settled law that right of succession would not be defeated by law of limitation or even by the principle of 'Res-judicata' as no law or judgment could override law of Sharia being a superior law. In this regard, reliance could be placed on the judgment of the august Supreme Court of Pakistan titled "Muhammad Zubair and others v. Muhammad Sharif (2005 SCMR 1217)", wherein it was held that:- "There can be no cavil to the legal position that notwithstanding any judgment, decree or order on termination of limited interest, the property would be reverted to the legal heirs of the last male owner and his succession would be deemed to have opened on his death. The estate of Muslim deceased thus, would be deemed to have devolved on all those persons who were his heirs according to the law of Sharia on the date of his death and in case of death of any of them, his share was to be devolved on his heirs." The same law laid down by the august Supreme Court of Pakistan was followed in "Gauhar Khanum v. Jamil Jan and others (2014 SCMR 801)" and "Khan Muhammad through L.Rs and others v. Mst. Khatoon Bibi and others (2017 SCMR 1476)."

13. The only exception to the said rule was laid down by the august Supreme Court of Pakistan in case of "Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others (PLD 2014 Supreme Court 167)". Wherein the august Supreme Court of Pakistan after discussing the earlier case law on the subject in Para 7 of the said judgment has laid that: "It emerges from the afore discussed case-law that the law of limitation is not entirely to be ignored or brushed aside whenever property is claimed on the basis of inheritance. The conduct of such claimant may become relevant and material when the bar of time limitation is pleaded by the adversary. A defendant may show that the plaintiff by her or his acts, overt or implicit, had demonstrated acquiescence in the defendant's title to the suit properly thereby allowing him to deal with it as exclusive owner, for instance regularly and openly disposing of parts of the property or developing it at his own expense over a period of time within the knowledge of the plaintiff. When in such circumstances the defendant/heirs transfers the property for valuable consideration the transferee is entitled to believe that the transferor had a valid title to transfer. It may be reiterated that in Ghulam Ali's case the question of interest protection of transferees from a legal heir in a suit of inheritance was left open as the transferees were not impleaded as defendants. That is not the case here. The very facts of this case would demonstrate that the plaintiff had acquiesced in the various transfers made of the suit property from time to time. Similar view has also been expressed in "Muhammad Rustam and others v. Mst. Makhan Jan and others (2013 SCMR 299) and "Ghulam Abbas v. Muhammad Shafi (2016 SCMR 1403). In the context of the present case Mst. Salika, the plaintiff during her lifetime had challenged the adverse entries in the revenue record and the defendant/petitioner had failed to offer any plausible explanation that on what basis she was deprived of her legal right. Even otherwise, the learned trial Court had remained very careful in granting decree in favour of the plaintiff, wherein her claim against the disputed mutations in favour of third persons was dismissed. Thus, the case of the present petitioner squarely falls within the parameters of the law laid down in Muhammad Zubair's case, which was followed by Gauhar Khan and Khan Muhammad's cases Supra. And not under the exception laid down by the august Supreme Court of Pakistan in Mst. Grana's case Supra.

14. Regarding the objection of the learned counsel for the petitioner in respect of non-framing of issue of limitation, suffice it to mention that the said issue was raised by the defendant in his written statement and he has led evidence in favour of his claim, therefore, no prejudice has been caused to the present petitioner by non-framing of issue on limitation and the available record was sufficient to render findings on the said issue. Indeed, the pleadings and the issues as originally framed in this case show that the parties were fully aware what was the subject-matter of controversy and what evidence was to be led by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the controversy canvassed by the plaintiff in the plaint. The non-framing of a specific issue in such circumstances is inconsequential. It was held by the August Supreme Court of Pakistan in the "Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82)" that if issues are not framed but allegations made in the plaint are challenged in the written statement and the Court has allowed evidence to be led, then a decision rendered without framing of the "issues is not illegal". The aforesaid law laid down by the august Supreme Court of Pakistan was re-affirmed in its subsequent pronouncements. Reliance can be placed on "Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others" (1993 SCMR 2018), "Muhammad and 9 others v. Hasham Ali" (PLD 2003 Supreme Court 271) and "Abdul Karim v. Haji Noor Badshah" (2012 SCMR 212).

15. Resultantly, this petition has no merit, which is accordingly dismissed. ZC/199/P Revision dismissed.