2016 PLP 63 (CLCN)

MALIK MANZOOR HUSSAIN, J.

Through this single judgment, 1 propose to dispose of instant Civil Revision No. 677/2007 as well as connected Civil Revisions Nos. 1152 and 1248/2007, as all these petitions have arisen out of one and the same impugned judgment and decree of learned Additional District Judge-II, Charsadda dated 19.4.2007 whereby appeal of the respondents was partially accepted and judgment and decree dated 31.10.2005 of learned Senior Civil Judge, Charsadda was set aside.

2. Brief facts of the case are that the petitioner filed a suit bearing No. 20/1 of 1988 for declaration and permanent injunction to the effect that she is owner of land measuring 5 kanal gifted by her father Tawas Khan and also entitled to the legacy of her father to the shari share measuring 33 kanals 1 marlas (total 38 kanals 1 marla) out of total 137 kanals 1 marla. The suit was contested by the respondents by filing written statement. Issues were framed and accordingly parties were directed to produce their respective evidence. The learned trial Court, after hearing the learned counsel for the parties, dismissed the suit vide judgment and decree dated 18.4.2000. Dissatisfied with the above said judgment and decree, the petitioner along with other legal heirs of Tawas Khan filed three separate appeals in the Court of District Judge, Charsadda, which were entrusted to learned Additional District Judge-I, Charsadda for disposal, who vide consolidated judgment and decree dated 17.10.2001, accepted the same, set aside the judgment and decree of the learned trial Court and remanded the case back to him to decide it afresh. After remand, the learned trial Court vide judgment and decree dated 31.10.2005 decreed the suit in favour of petitioner. Feeling aggrieved, respondents Nos. 1 and 2 filed Civil Appeal bearing No.25/13 of 2005 in the Court of learned Additional District Judge-II, Charsadda, which was partially accepted vide judgment and decree dated 19.4.2007 and set aside the judgment and decree of learned trial Court to the extent of shari share of petitioner, while rest of the decree was maintained; hence this revision petition.

3. Learned counsel for respondents Nos.1 and 2 argued that petitioner filed the suit beyond period of limitation. Also stressed that the original mutation was attested in the year, 1933 in favour of Aslam Khan, who being sole owner, transferred the same in favour of his daughters through mutations Nos. 1418 and 1419, thus, the petitioner has got no concern with the suit property. Similarly, the daughters of Aslam Khan being the sole owners, transferred some of the property through mutation No. 1006 attested on 23.10.1968 in favour of Gujar Khan, respondent No.8. He further stressed that Gujar Khan was bona fide purchaser and his rights were protected under Section 41 of the Transfer of Property Act.

4. Conversely, the learned counsel for the petitioner argued that after promulgation of NWFP Muslim Personal Law (Shariat) Application Act, 1935, there was no substance in the arguments of learned counsel for respondents Nos. 1 and 2 that the whole property was transferred in favour of Aslam Khan as per "Riwaj", thus the mutation No. 186 was not in accordance with law and the parties were governed through Islamic shari share and their shares were to be determined through what has been ordained in the Holy Quran. All laws relating to the Muslim are governed by Quran and Sunnah and any law inconsistent with Quran and Sunnah cannot deprive a Muslim to the right of inheritance.

5. I have gone through the record carefully and considered the submissions of learned counsel for the parties.

6. As per record, it is an undisputed fact that the property measuring 137 kanals 1 marla was ownership of one Tawas Khan, who left behind two sons and two daughters. However, mutation No. 186 regarding inheritance of Tawas Khan was sanctioned on 28.6.1935 and it transpires that this mutation was attested only in favour of one son, namely, Aslam Khan and as per "Riwaj" prevailing at that time, daughters were left out from the legacy. Similarly, at the time of attestation of mutation, Hussain Khan son of Tawas Khan was dead and survived by his widow, therefore, her name could not be included in the inheritance mutation. It is also evident from the record that Mst. Meraj Bibi and Mst. Mushtari are daughters of Aslam Khan, in whose favour, the original mutation No. 186 was attested. Aslam Khan in his life time, transferred his total share in favour of his daughters, namely, Mst. Meraj Bibi and Mst. Mushtari through mutations Nos. 1418 and 1419 attested on 14.2.1980, who further transferred some of their property in the name of Gujar Khan son of Mir Ghazan through mutation No. 1006 dated 23.10.1968. The petitioner has challenged mutations Nos. 186, 1418, 1419 and 1006 to be ineffective upon her rights through suit No.20/1 of 1988. Mst. Zojan, respondent No.9, claimed herself to be daughter of Hussain Khan son of Tawas Khan and she also claims her shari share from the disputed property. From the available record, it is also established and not denied by any of the party that Mst. Zojan, respondent No.9, was daughter of Hussain Khan son of Tawas Khan.

7. The controversy being agitated about the legacy of Tawas Khan's inheritance and the contention of the respondents that parties at the time of death of Tawas Khan were governed by the "Riwaj" (Custom) as that being law of land, thus, the inheritance devolved as per the provision of Custom, the mutation attested in favour of Muhammad Aslam son of Tawas Khan was in accordance with law. Admittedly, Tawas Khan was died before promulgation of NWFP Muslim Personal Law (Shariat) Application Act (VI of 1935) but under section 3 of the said Act, this legislation was given effect retrospectively, thus, the Muslim owner, who died before enforcement of the Act, his legacy will be taken under the touchstone of law contained in Quran and Sunnah, hence, the contention of learned counsel for the respondents is misconceived. Similarly, the question raised by learned counsel for the respondents that the suit was not brought within time, thus it was defect and no final decree was passed on the basis of the same. This Court does not agree with the contention of learned counsel as it has already been settled by the Hon'ble Apex Court in the case of "Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi" (PLD 1990 SC 1) and "Mst. Namdara and 3 others v. Mst. Sahibzada and 2 others" (1998 SCMR 996).

8. So far as the right of Mst. Zojan, who was not plaintiff in the lower forum but was arrayed as a party in the lower forum as well as in this Court, her rights would be decided through the present petition. Policy of the law is that all matters brought before a Court should be finally decided so as to save the parties from multiplicity of proceedings and technicalities should not stand in the way of doing justice.

9. Thus, by allowing all these civil revisions, the judgment and decree passed by the learned Additional District Judge-II, Charsadda dated 19.4.2007 is set aside while that of learned Senior Civil Judge, Charsadda dated 31.5.2005 is restored with modification that respondent No.8, Gujar Khan, who had purchased the property from respondents Nos. 1 and 2, his rights are protected under section 41 of the Transfer of Property Act and entitled to be adjusted from the share devolved upon his vendors. Mst. Zojan, respondent No.9, is also entitled to the shari share, as per law, from the legacy of Tawas Khan. The petitioner is entitled to her gifted portion of 5 kanals of land as well as land inherited at the time of her due share in the legacy of her deceased father along with other heirs.

10. With the above findings, instant revision petition as well as the connected Revision Petitions bearing Nos. 1248, 1152/2007 are allowed. Parties are directed to bear their own costs. JJK/472/P Petitions allowed.