2002 PLP 1876 (MLD)
FAIZ AHMED and others‑‑‑Petitioners Versus KHAN MUHAMMAD and others‑‑‑Respondents
| Citation | 2002 PLP 1876 (MLD) |
| Forum / Court | Lahore |
| Bench Members | Tanvir Bashir Ansari, J |
| Parties | FAIZ AHMED and others‑‑‑Petitioners Versus KHAN MUHAMMAD and others‑‑‑Respondents |
| Primary Law | Specific Relief Act (I of 1877)‑‑‑ |
Q1: What are the key laws and sections cited in 2002 PLP 1876 (MLD)?
This judgment primarily cites: Specific Relief Act (I of 1877)‑‑‑ as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2002 PLP 1876 (MLD)?
The case was heard and decided by the Lahore bench comprising: Tanvir Bashir Ansari, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2002 PLP 1876 (MLD) (FAIZ AHMED and others‑‑‑Petitioners Versus KHAN MUHAMMAD and others‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- A. R. Tayyib for Petitioners.
- Choudhary Muhammad Afzal Cheema for Respondents.
- Date of hearing: 14th March, 2002.
Headnotes / Summary
‑‑‑‑S. 42‑‑‑Suit for declaration‑‑‑Original owner of property in dispute who was predecessor‑in‑interest of parties, was survived by his widow and one daughter ‑‑‑Defendants got attested mutation wherein they were shown to be entitled to inheritance of propositus through his daughter‑‑ Plaintiffs filed suit for declaration that they were owners in possession of suit‑land as original owners of land who was governed by custom and not by Islamic Law of inheritance `and that mutation of inheritance in favour of defendants was illegal‑‑ Trial Court relying on copy of Wajib‑ul-Arz, concluded that rule of inheritance in village concerned was based upon custom of 'Pagwand' and decreed suit and Appellate Court concurred with finding of Trial Court‑‑‑Both the Courts misconstrued document of Wajib‑ul-Arz inasmuch as pre‑condition for application of custom to apply was when propositus died issueless ‑‑‑Such practice was adopted only in that event where custom of 'Pagwand' would prevail‑‑‑Evidence produced on record was not sufficient to prove that original owner/propositus had died issueless, whereas it had fully been proved that original owner was survived by his widow and a daughter‑‑ Evidence on record has shown that widow of deceased died about 20 years after death of original owner and his daughter died three years after death of his widow‑‑‑Courts below did not take into consideration such question of fact‑‑‑Suit filed otherwise was time‑barred under Art.120 9f Limitation Act, 1908 having been filed beyond period of six years‑‑‑Concurrent judgment and decree passed by Courts below with material irregularity, were set aside by High Court in exercise of its revisional jurisdiction‑‑‑ Defendants would be entitled to share in estate according to Muslim Law.
Judgment & Decree
4. From the pleadings of the parties, several issues were framed and the material issues for the purposes of decision of this Civil Revision are Issues Nos. l, 5 and 7 which are reproduced as under: Whether the suit is within time'' OPP Whether family of Ghulam Muhammad deceased was governed by custom? If so, what was the custom? OPP. Whether Mutation of Succession No.116 dated 23‑1‑1973 is illegal, void and ineffective qua the rights of the plaintiffs for the reasons stated in the plaint? OPP S. In support of their contention, the plaintiffs examined Muhammad Khan as P.W.1, Fazal P.W.2 and Gul Muhammad P.W.4 in addition to the documentary evidence, important amongst which are copy of Wajib‑ul‑Arz Exh.P. copy of Register Haqdaran Zamin 1904/1908 Exh.P.2, copy of Pedigree‑table Exh.P.8. On the other hand, the petitioners/defendants produced Lai Khan D.W.1, Aalaval D.W.2, Sharah D:W.3 and Muhammad Yousaf one of the defendants as D.W.4. In documentary evidence, copies of Khasra Girdawari and Jamabandi were produced.
6. The learned trial Court basically relied upon the copy of Wajib ul‑Arz Exh.P.1 and came to the conclusion that the rule of inheritance in village Momeeka was based upon the custom of Pagwand. It was thus held that the widow of Ghulam Muhammad namely Ghulam Fatima held the land as a limited owner till her death after which the land was liable to be transferred in ownership to the male heirs of Ghulam Muhammad to the exclusion of his female heirs. It was also held that as the Mutation No.116 dated 23‑1‑1973 was basically void, no limitation would run against the same. Holding thus, the learned trial Court decreed the suit of the respondents vide judgment and decree dated 24‑2‑1986.
7. The petitioners preferred an appeal which was dismissed on 22‑1‑1987. The learned Appellate Court considered the evidence on Issue No.5 and came to the conclusion that according to Exh.P.1 the parties were governed by custom of Pagwand. The learned Appellate Court concurred with the findings of the trial Court and passed its impugned judgment.
8. Mr. A. R. Tayyib, Advocate for the petitioners and Choudhary Muhammad Afzal Cheema, Advocate for the respondents have been heard and record perused.
9. The basic document which will decide the controversy between the parties is Exh.P.I which is the copy of Wajib‑ul‑Arz of village Momeeka. The relevant extract from the said document is reproduced as under:‑‑
10. Both the 'learned lower Courts have misconstrued this document inasmuch as the pre‑condition for the application of the custom to apply is when propositus/dies issueless. It is only in this event that the custom of Pagwand would prevail. The evidence produced on the record is not sufficient to prove that Ghulam Muhammad had died issueless. A reference to the plaint would show that the plaintiffs/respondents have admitted that Mst. Noorai, the predecessor‑in‑interest of the petitioners was the daughter of Ghulam Muhammad. However; it' was contended that she had died during the lifetime of her father. There is nothing' on the record to prove that Mst. Noorai predeceased Ghulam Muhammad. To the contrary, it was on the record that Ghulam Fatima had died about 20 years after Ghulam Muhammad and Mst. Noorai died almost three years after the ddath of Mst. Ghulam Fatima.
11. Neither the trial Court nor the learned Appellate Court adverted their attention to this question of fact. It was presumed that the custom applied notwithstanding the fact that Ghulam Muhammad admittedly had a daughter namely Mst. Noorai, Apart from this Exh.P.2 which is a cop; of Register Haqdaran Zamin for the year 1904‑1908 shows the inheritance of various females of the Momeeka Caste which belies the existence of custom,
12. According to the provisions of section 5 of Punjab Laws Act, 1872, the governing rule in matters of succession to the estate of a Muslim shall be the Muslim Personal Law unless the same is proved to be altered, amended or modified by a prevailing custom. As discussed hereinbefore, the custom of Pagwand would not govern the succession of Ghulam Muhammad deceased, as it applies only to the succession of a propositus who died issueless. The impugned mutation was attested on 23‑1‑1973. The suit was filed on 17‑3‑1979 which was beyond six years of the impugned mutation. The suit was time‑barred under Article 120 of the Limitation Act having been filed beyond the period of six years. The findings of the learned lower Courts that no limitation would run against the mutation as it was void is not correct.
13. The upshot of ,the above discussion is that the judgment and decree dated I1‑1‑1987 of the Appellate Court and judgment and decree dated 24‑2‑1986 of the trial Court have been passed with material irregular exercise of jurisdiction. The Civil Revision is accepted and the judgments and decree of both the lower Courts are set aside. As a result the petitioners shall be entitled to the Muslim Law share of Mst. Noorai in the estate of Ghulam Muhammad deceased. Parties to bear their own costs. H.B.T./F‑107/L Revision accepted.