2012 PLP 701 (MLD)

AMIN-UD-DIN KHAN, J.

Through this civil revision the petitioners have challenged the judgments and decrees dated 13-1-1991 and 25-1-1990 passed by Additional District Judge, Bahawalpur and Civil Judge Bahawalpur respectively whereby suit filed by the petitioners/plaintiff was dismissed.

2. Brief facts of the case are that plaintiff No.1 being daughter and plaintiffs Nos.2 to 9 being legal heirs of Ghulam Fatima deceased, daughter of Muhammad Baksh challenged inheritance Mutation No. 446 sanctioned on 20-1-1947 Mauza Abbas Nagar and Mutation No.44 sanctioned on 4-3-1957 Chak No.2-BC Tehsil Bahawalpur through the suit. They contended in the suit that their predecessor Muhammad Baksh was owner of agricultural land and residential Jhatas in the above mentioned Chak and Mauza. He died in the year, 1947 He left behind four sons, four daughters and two widows. One of his wife Mst. Allah Wasai died in his life time. They contended that all the legal heirs were entitled to take share from his property in accordance with Sharia as their family' was govern through Shariat but the sons of the deceased with the connivance of revenue staff fraudulently got the land transferred in their favour ignoring the daughter and widows of said Muhammad Bakhsh. The defendants resisted the suit by filing written statement wherein it was averred that Muhammad Bakhsh died in the year 1946; that the land situated in Chak No.2-BC was Colony land which was allotted to said Muhammad Bakhsh but no proprietary rights till his death were transferred in his favour. It was further averred that the mutations were in the knowledge of the parties from their attestation, therefore, the suit, filed by the plaintiffs is time-barred. It was also averred that daughters and widows of the deceased agreed for the attestation of the mutation in favour of the brothers/sons. They made no claim at the time of attestation of mutation, therefore, they are estopped to challenge these mutations in the suit. It was further averred in the written statement that there was a custom that females of the family were not entitled in the inheritance in the existence of male legal heirs of the deceased. They pleaded that their possession for more than 12 years is open and hostile, therefore, the plaintiffs have no right to file this suit.

3. Learned counsel for the petitioners submits that Muhammad Bakhsh died in the year 1947. Relationship between the parties is admitted one. The land left by the deceased is also not disputed. Learned counsel contends that the learned trial Court while recording findings jointly on issues Nos. 4, 4-A and 5 fell in error. These findings prejudice the case of the petitioners/plaintiffs; that the learned first Appellate Court only decided issue No.5. He has not recorded findings on issues Nos.4, 4-A; that in the availability of documentary evidence, the oral evidence cannot be referred. Learned counsel contends that both the courts below have ignored the documentary evidence produced by the petitioners and only relied upon the oral evidence while deciding the matter-in-issue; that in the Colony land Muslim Personal Law is applicable; that application of section 2-A of the Act was retrospective; that Shariat was applicable in the State of Bahawalpur since 1888; that in case of matter of inheritance court cannot go into technicalities but strictly apply the law of limitation.

4. Learned counsel for the respondents on the other hand concluded that there are concurrent findings of the facts recorded by two courts below and needs no interference in revisional jurisdiction; that the civil revision is time-barred; that the plaintiffs never appeared in the witness-box; that there is estoppel against the plaintiffs because all the legal heirs of said Muhammad Bakhsh appeared before the Revenue Officer at the time of attestation of the mutation: that Shariat applied in the year 1951 before that the custom was applied in the tribe. 5. 1 have heard the learned counsel for the parties and gone through the record very carefully and minutely.

6. So far as the relationship of the parties is concerned it is admitted between the parties and with regard to the existence of land in the name of the decreased there is no dispute between the parties. The matter in dispute between the parties is whether the mutations of inheritance were validly passed in favour of the sons of the deceased by ignoring the daughters and the widows of the deceased; whether the suit was time barred; whether the land situated in Chak No. 2-BC was a Colony land and was not subject to inheritance.

7. The impugned mutations are on the file as Exh.P1 and Exh.P

4. I have noticed that in these mutations at the time of entry of the mutations all the legal heirs of Muhammad Baksh deceased have been entered in column No.9 but there is cutting on the names of widows and daughters, therefore, their names were deleted whereas in the order of sanction of mutations the presence of daughters and widows of the deceased has also been shown. One point is very important that daughters of the deceased have been shown to be minors at the time of attestation of the mutations. After cutting the names of the ladies, the mutation have been sanctioned only in the names of the sons of the deceased. The pleadings and evidence of the defendants lead towards the point that these mutations were sanctioned on the basis of admission of the ladies that these mutations be sanctioned in favours of the sons of the deceased only, therefore, no question of custom arise in this view of the matter. Only the plea of custom taking in the written statement was not sufficient. The defendants were bound to prove the custom. Even at the time of argument when the learned counsel was put the question that why the names of the ladies were entered in the impugned mutations and why their presence and their willingness has been shown on the passing of the mutations when there was custom prevailing in their family, he is unable to response satisfactory answer to this question. Even otherwise I have noticed that plaintiffs produced Exh.P1 Shart Wajab-ul-Arz wherein question No.13 is with regard to the answer is I have also noticed that in the mutations produced as Exh.P11 to Exh.P19 pertaining to the land situated in mauza Abbas Nagar, in these inheritance mutations share has been given to the ladies also, therefore, in the light of Exh.P7 and Exh.P 11 to Exh. P19, it is clear that the family of the parties were not governed by the custom but they were governed in the matter of inheritance by Sharia. Exh.P20 and Exh.P22 are mutations relating to the Colony land. In these mutations also the ladies have been given the share of inheritance. The contention of learned counsel for the defendants that the daughters appeared before the Revenue Officer, therefore, now they are estopped to file the, suit. I am afraid even this contention fully goes against them because in the mutations the presence of the daughters and widows of the deceased have been shows. It has been entered that the daughters are minors therefore, there was no benefit for the defendants rather it is against the defendants/sons of the deceased that how they procured the consent of minors and whether that consent of minor is binding upon them and I find that consent is not binding upon the minors. It does not constitute estoppels against the minors. Rather this argument shaken the case of the defendants that they were governed through the custom in the matter of inheritance. Even otherwise the defendants have not claimed any gift or Tamleeq from their sisters and the widow of the deceased. Therefore, I am of the view that family of the parties in the matter of inheritance were governed by Shariat and not by the custom. In the light of law laid down in the judgment of august Supreme Court of Pakistan reported in Umar Din and another v. Mst. Sharifan and another (PLD 1995 SC 686), the colony land as well as the other land were governed through Muslim Law of Inheritance even from the application of Punjab Laws 1872 in the State of Bhawalpur. So the findings recorded by the learned trial court on issue No.2 are set aside. With regard to the limitation relying upon a case reported as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) I am of the view that till the time a clear ouster or clear admission of the right by the ladies in the property in dispute is not established, no weapon of limitation can be used against the females in the matter of inheritance. The findings of both the courts below on issues Nos.1, 2, 4, 4-A and 5 being contrary to law as well as based on mis-interpretation of documentary evidence on record and giving preference to the oral evidence against the documentary evidence and in violation of law laid down by the August Supreme Court of Pakistan in Dr. Azeemur Rehman and others v. Government of Sindh and others (2011 SCMR 835) are set aside.

8. On the colony land Shariat is also applicable. The version of the petitioners is supported by Mst. Sharam v. Taj Muhammad and others (2002 CLC 2001).

9. So far as the contention of learned counsel for the respondents regarding the concurrent findings of facts by the two courts below is concerned, the court has to see that how the concurrent findings have been recorded. It is not hard and fast rule that in case of concurrent findings, this court lacks jurisdiction to entertain the petition filed under section 115, C.P.C. and scrutinize evidence where mis-interpretation of documentary evidence is visible on the record and where the findings are based on non-reading and mis-reading of the material evidence on the file.

10. As far as the objection of learned counsel for the respondents with regard to the filing of this revision petition after limitation is concerned, that objection is also merit-less because this revision was filed on 27-4-1991 whereas the limitation of 90 days have been introduced in the year 1992 for filing of civil revision under section 115, C.P.C. Even otherwise this revision petition was filed within 90 days of decision of learned First Appellate Court.

11. So far as the point that plaintiff No. 1 did not appear in person in the witness-box is concerned, where there was no personal knowledge of the plaintiff was required or even when the attorney of the plaintiff appeared in the court, the defendants have not objected to this point or there was no question of cross-examination for which attorney was unable to answer in that eventuality the personal appearance of a party is not necessary, even otherwise, this objection first time at this revisional stage is not maintainable, therefore, this objection of the respondents is merit-less.

12. In the light of what has been discussed, this civil revision is allowed. The judgments and decrees passed by both the courts below are set aside. Resultantly, the suit filed by the plaintiffs/petitioners is decreed with costs throughout. H.B.T./G-38/L Petition allowed.