1. ' The following facts culminated into above titled appeal.
2. ' Mst. Alma Bi and others brought a declaratory suit along with a prayer for joint possession regarding their share cut of Survey Nos. 1446/1427, 1445/1447, 1443/1448, 1444/1428, 1634/1635, 1472/1473, 1174/1177 and 1176/1178 total measuring 204 Kanals, 19 Marlas situate at village Nargal Mujhan Tehsil Fathepur Thakyala, District Kotli in the Court of Sub- Judge Fathepur Thakyala against the defendant-respondents on 11-11-1996. Their claim before Sub-Judge was that Noor Din deceased was owner of the said property. He had 2 wives. The plaintiffs and 3 sons (defendants Nos. 1 to 3) were out of one wife whereas 2 sons defendant No. 4 and another namely Wali (deceased) predecessor-in-interest of defendants Nos.4 to 9 were his legal heirs. Noor Din deceased was living with defendants Nos.1 to 3 who collusively managed to execute, an Akanama (letter of disinheritance) dated 8-2-1956 in their favour thus, disinherited them unlawfully. The said document (Aaknama) being illegal and unlawful both in view of prevailing law and law of Sharia was ineffective and inoperative to their rights. The plaintiffs could not be deprived of their share in the suit land on account of such ab initio void document. The defendants also got sanctioned a Mutation bearing .No.924 in their favour and the Revenue department in light of the said mutation had also prepared a Revenue Record showing the defendants as the owners of the suit land excluding the plaintiffs. Noor Din died in the year 1961 and the defendants exclusively are shown as legal heirs of the deceased. The defendants on the basis of mutation sanctioned in view of the said document further transferred the suit land through different gift-deeds an the year 1989 in favour of defendants Nos. 10 to 21. Therefore, according to the plaintiffs, the subsequent transaction being result of an ab initio void document were also ineffective and inoperative to the rights of plaintiffs. Revenue Record prepared on the basis of Aaknama and decree obtained from the civil Court without impleading plaintiffs as party were also ineffective and inoperative to their rights. The plaintiffs being co-owners were entitled to a decree for joint possession. The entries in the Revenue Record showing them as Ghairmaroosi possessors over Survey Nos.1434 and 1476 measuring 38 Kanals, 3 Marlas were also against facts and needed correction by the Revenue department. The plaintiffs also pleaded ignorance about all these transactions and averred in clause 13 of their plaint that they acquired knowledge about these fictitious transactions when they, demanded their share from the defendants 6 months back from the date of institution of the suit. As the defendants refused to handover their ancestral property to them therefore, this categorical denial by the defendants caused them to take legal action by instituting the present suit.
3. ' The defendants resisted the suit on different grounds like limitation, non-availability of cause of action along with clause-wise denial of the averments made in the plaint.
4. The trial Court after due process of law, accepted the fact that the plaintiffs were in fact legal heirs of Noor Din deceased and they were owners of the suit land to the extent of their shares per law of Inheritance however, their suit was declared as time-barred. The plaintiffs feeling aggrieved by the judgment and decree of the learned trial Judge filed an appeal before learned District Judge who also arrived at the same conclusion. The judgment and decree of learned District Judge therefore, is under assailance before this Court through the present appeal.
5. ' I have heard the learned counsel for the respective parties and gone through the record. Both the learned counsel for the respective parties confined their arguments to the point of limitation only.
6. They were in agreement that the plaintiffs/appellants were entitled to their share in the suit land as legal heirs of Noor Din deceased. The learned counsel abstained themselves from debating the case on its merits thus, the controversy regarding limitation needs resolution.
7. ' During pendency of proceedings one of the plaintiffs Alma Bi died and her legal heirs were brought on record. Subsequently, one of the legal heirs of deceased Alma Bi, also died resultantly, her legal heirs were brought on record. However, after some time, all the plaintiffs withdrew themselves from the suit and Mst. Farman Bi (present appellant) was left to contest her share in the estate left by her father.
8. The appellant herein through her suit prays a decree for joint possession to the extent of her share in the joint estate left by her father. As consequential relief she seeks cancellation of Aaknama, mutation sanctioned in view of the said Aaknama, the entries in the Revenue Record, the gift- deeds executed in favour of different persons on 31-8-1989 and 28-12-1989 and a decree, dated 23-12-1993. The Courts below are of the opinion that since the Aalmama was executed in the year, 1956 and Noor Din deceased (father of appellant) died in the year 1961, the appellant kept herself silent for a pretty long time therefore, her suit was hopelessly time barred.
9. ' The learned counsel for the appellant while assailing the judgment and decree of the Courts below argued that she pleaded lack of knowledge in her suit as it appeared from clause (13) of her plaint. The suit in view of Articles 91 and 120 of Limitation Act was within time thus, the Courts below while declaring the same as time-barred were erroneous under law. She has been deprived of her legitimate right on the basis of a document (Aaknama) which is ab initio void. According to the learned counsel, further edifice raised on the strength of such a document gave her fresh cause of action after every denial and she could legally bring her suit when real threat was posed to her refusing her right to the suit land. She was ultimately denied her right in the year 1996 when she demanded to handover the suit land therefore, her suit was quite in time in view of Articles 91, 95 and 120 of Limitation Act. During course of arguments, he relied upon legal reports like PLD 1993 SC (AJ&K) 24, 1988 CLC 2195, 2000 YLR 621, 2001 YLR 928, 2004 YLR 242 and vehemently contended that both the judgments and decrees passed by the lower Courts deserved to be vacated because those were not in accordance with law.
10. Conversely, the learned counsel for the respondents argued that suit by the appellant was hopelessly time-barred because she despite knowledge slept-over for more than 40 year therefore, her suit was rightly disallowed on the score of limitation. According to him, limitation for cancellation of any instrument or a declaration about the validity of revenue entries or a Court decree was 3 and 6 years as provided under Articles 91, 95 and 120 of Limitation Act. It was further argued that even in case of void transaction she was required to get rid of the same within reasonable time. He, during his arguments relied-upon case-law like 1995 SCR 204, 2001 M LD 212, 2003 YLR 1752 and contended that in view of the aforesaid legal authorities the suit by the appellant was rightly disallowed by the Courts below.
11. The entire edifice raised by the respondents through their written statement is based on an Aaknama executed in their favour by Noor-Din deceased in the year 1956. This is a settlement to disinherit a legal heir of deceased not recognized by Transfer of Property Act and Registration Act enforced in Azad Jammu and Kashmir. A Muslim owner can validly transfer his property only through the modes recognized by law and not otherwise. This document therefore, is an ab initio void document and the findings of the Courts below are correct to this extent. The learned counsel for the parties also were in agreement that such a document did not create title of ownership in favour of respondents. The Courts below by having resort to different documents tendered into evidence like Exh.PA to Exh.PN concluded that the appellant was having knowledge 3 years prior to the institution of the suit therefore, her suit was time-barred, in view of Articles 91 and 120 of Limitation Act. The aforesaid documents were examined carefully. The document ranging from Exhs.PK to PN are certified copies of different Hiba-deeds issued to one Muhammad Shafi after the institution of the suit whereas list of the documents resorted to by the Court below ranging from Exhs.PA to PJ are also certified copies found to have been issued to said Muhammad Shafi in the year, 1994. The present suit has been filed on 11-11-1996 The observation of the Courts below therefore, as erroneous even in the light of there documents. The Courts below declared the suit as time-barred in view of Articles 91 and 120 of the Limitation Act. Article 91 deals with the cancellation of an instrument and it provides limitation of 3 years for. Such purpose starting from the date of knowledge of facts entitling a person to sue to enforce his right. Similarly, Article 120 of Limitation Act provides limitation of 6 year for those cases for which no specific provision is available in Limitation Act. There is yet another Article that deals with setting aside of a decree passed on the basis of fraud and it also provides 3 years limitation from the date of knowledge of fraud. As stated earlier, the appellant is shown to have categorically pleaded knowledge in the year, 1996. There is no verbal evidence showing any knowledge by the appellant about all the transactions made in order to deprive her of her legitimate rights to the legacy left by her deceased father. The Courts below gathered their opinions from the aforesaid documents which are found to have been obtained by one Muhammad Shafi. It is not clear that what is the relation of said Muhammad Shan with appellant Farman Bi. It is also not borne out by the record that such person ever intimated her about the transactions sought to be cancelled 3 years or even 6 years prior to institution of the present suit. In order to deprive a Muslim owner of his legitimate right to a joint estate left by father, it was enjoined upon the Courts below to satisfy themselves about the fact that she herself was having knowledge about the transactions depriving her of her right i.e. Her personal knowledge was required to be proved in such a case. The conclusion arrived at, by the Courts below is nothing but a result of surmises, conjectures, suppositions and presumptions. To deprive the appellant of his legitimate right, the Courts below were obliged to fully satisfy themselves about personal knowledge of the appellant but unfortunately, they failed to do so.
12. ' Before arriving at a conclusion it is felt expedient to discuss the case law referred to by the learned counsel for the parties in order to support their respective contentions. In legal report like PLD 1993 SC (AJ&K) 24, the following observation has been made:-- "Inheritance...Property of deceased Muslim although devolved on his daughter, yet mutation was not attested in her favour because she had relinquished her share in favour of male heirs of deceased...Effect of such relinquishment...Plaintiff (female heir) seeking relief pertaining to entries in "Jamabandi" Limitation... Estate left by a Muslim owner would devolve on heirs on his death; fact that such heirs did not wish to inherit was of no consequence where plaintiff wanted to transfer her share to the male heirs, she could do so as permissible under law i.e. Through a registered document.. Mere oral statement before Collector by plaintiff that she did not want to get share out of the estate left by her father, would not extinguish her title in the land in question and vest the same in male heirs to her exclusion ...Plaintiff being a co-sharer with male heirs (defendants), though not so recorded in the Revenue Record, she would be deemed to be in continuous possession of her share and any adverse entry in the Revenue Record would not oblige her to challenge the same within a period of six years of the entry, for cause of action in such cases would accrue only when real threat was posed to her title i.e. When defendants denied her title in unequivocal terms...Every fresh entry made in the Revenue Record to the detriment of plaintiff would give a new cause of action... Relief sought by plaintiff pertaining to entries in Jamabandi 1981-82 would not be time-barred when suit was instituted on 4-8-1986 i.e. Within six years of entries in the said Jamabandi... Entries in Jamabandi 1981-82 being subsequent would be preferred to those made earlier. Azad Jammu and Kashmir Land Revenue Act, 1967, S.53... Limitation Act (IX of 1908), Art. 120."
13. "...S.42... Entries in Revenue Record...Value of...Entries in Revenue Record whether of mutation or record-of-rights, would not by themselves vest title in heirs; rather the same were evidence of title and if proved incorrect, in view of facts admitted or proved, title of an heir would not be adversely affected".
14. "...Decree for joint possession... Entitlement... Co-sharer in joint property would be entitled to a decree for joint possession in spite of the fact that such co-sharer had not been recorded as such in the Revenue Record, such entries being violative of the law and void".
15. ' In case titled "Mir Muhammad v. Muhammad Hashim and others" 1988 CLC 2195, the learned Judges observed as under:-- "...Inheritance...Claim of one of the heirs in respect of property left by deceased was disputed by other heirs on the ground that deceased had settled question of inheritance during his lifetime...
16. ' Such settlement is binding on heirs only if they agreed to the same after death of their predecessor as inheritance would open in favour of heirs only on death of predecessor".
17. ' In the case titled "Nawab Khan and others v. Rehmat Bibi and others", the following observation has been made:-- "...S.45...Mutation of inheritance... Validity... Plaintiffs were excluded from mutation of inheritance and the same was attested only in the names of the defendants... Said mutation was assailed 33 years after its attestation... Trial Court dismissed the suit being time-barred, whereas the Lower Appellate Court, after holding the mutation as void and illegal, dismissed the appeal on the point of limitation... Validity... After satisfying the shares of the defendants, the residue had to go to the plaintiffs... Revenue Officer, in circumstances, had no authority to exclude the plaintiffs from inheritance.. Judgments and decrees of both the Courts below suffered from material irregularity for Courts below refused to exercise the jurisdiction vesting in them on a wrong decision of the question of law involved in the suit and as such the same were not sustainable."
18. "... Inheritance... Requirement of mutation... Necessity... When a Muslim owner dies, his estate passes on to the legal heirs in accordance with the Qur'anic ' Injunctions... No. Mutation or any other act of the State or individual is required for acquisition of the proprietary rights by inheritance."
19. "... Section 5... Void mutation... Suit against such mutation... Limitation... No limitation was prescribed for filing suit in respect of a void mutation."
20. ' In legal report 2001 YLR 928 titled "Muhammad Bibi v. Munir Ahmed" the learned Judges observed as under.
21. "... Ouster of co-sharer from the suit land... Failure to receive share in produce of such land... Effect...
22. When succession opens, all the eligible heirs become co-sharers... Mere fact that one of the co- sharers was not being paid any share in the produce from the land would not constitute ouster."
23. "... Section 45... Co-sharer... Entry of mutation of land excluding the co-sharer... Validity... Limitation...
24. Plaintiff was heir to the estate of the deceased owner... Defendants got the land mutated in their name excluding the plaintiff... Civil suit filed by the plaintiff was dismissed as being time-barred...
25. Lower Appellate Court maintained the judgment and decree passed by the trial Court... Contention of the plaintiff was that she being one of the co-sharers was entitled to inherit the suit-land...
26. Validity... Where the plaintiff was admitted to be an heir as pleaded by her in the plaint the matter of limitation never, commenced against her... Disputed mutation was illegal and void and there was no question of any limitation for challenging such mutation... Concurrent findings of fact by the Courts below were reversed by High Court in exercise of revisional jurisdiction as the suit was within time."
27. ' In case titled "Nawab Ali and others v. Muhammad Sharif and others" the following observation has been made:-- " ...Gift... Estoppel... Suit for possession through inheritance... Predecessor-in-interest of the parties was grandfather of the plaintiffs and father of the defendants... During the lifetime of the predecessor-in-interest of the parties 1/4 share of his property was transferred in favour of the plaintiffs by way of gift and a mutation to that effect was sanctioned... After the death of the predecessor-in-interest of the parties mutation of inheritance was sanctioned in favour of the defendants excluding the plaintiffs... Trial Court dismissed the suit on the basis of estoppel and the appeal before the Lower Appellate Court also met the same fate... Validity... Where 1/4th share of the property was transferred to the plaintiffs and the mutation was also sanctioned, such gift was valid and complete in all respect, as the same was not challenged by the defendant and the same attained finality... Plaintiffs could not be deprived of their legal shares, which they were entitled to inherit from the estate left by their predecessor-ininterest... No estoppel against statute... Finding of both the Courts below on the issue of estoppel were not sustainable and the judgments and decrees passed by both the Courts below were set aside . "
28. "...Gift... Validity... Depriving other heirs of their shares... Impious for a Muslim to deprive some or all of his children from property by alienating same in his lifetime and it will be so in all good sense if done without just cause... Islamic law does not forbid such gift when made by a person not suffering from "Marz-ulMaut"... Gift may not become invalid only because it may, have the effect of depriving the others of their share.
29. ' Inheritance..., Limitation... No. Limitation in inheritance cases and person claiming inheritance cannot be non-suited merely on the point of limitation."
30. In all the precedent cases it is held that a Muslim cannot be deprived of his/her right simply because he/she relinquished the same or a private settlement disinherited him/her for legacy of a deceased Muslim devolves upon legal heirs on his/her death irrespective of the fact that a mutation is sanctioned in his/her favour or not and he/she is recorded as owner in the Revenue Record or not. A Muslim owner is competent to alienate or transfer his/her property only through the modes recognized under law and not otherwise. Any adverse entry in the Revenue Record would not oblige him/her to challenge the same within a period of 6 years of the entry, for cause of action in such cases would accrue only when real threat was posed to his/her title i.e. When defendant denied his/her title in unequivocal terms. Every fresh entry made in the Revenue Record to the detriment of plaintiff would give a new cause of action. This is the view expressed by our own Supreme Court in a case titled "Bostan and others v. Mst. Sattar Bibi and others" (PLD 1993 SC (AJ&K) 24) referred hereinbefore. Under the Constitution, it is law of the State. This view stands supported by different judgments from Pakistan jurisdiction also.
31. ' The present case when tested on the touchstone of the above referred settled principle of law, it may safely be said that suit by the appellant is within time in view of Articles 91, 95 and 120. The plaintiff appellant, as stated earlier, is found to have pleaded to acquire knowledge in the year 1996 and she has also pleaded that 6 months prior to institution of the suit the defendants categorically denied her right which caused to bring the present suit, categorically denied her right. The defendants failed to rebut claim about knowledge put forwarded by the appellant in her plaint therefore, irresistible conclusion is that she acquired knowledge of all that depriving her of her legitimate right in the year, 1996 when she knocked at the door of the Court. She is found to have been deprived of her right on the ground of illegal practice adopted by the defendants behind her back and without her knowledge.
32. ' Coming to the law cited at bar by the learned counsel for the respondents, It may be of that no doubt, Supreme Court of AJ&K has held that, even a void order or transactions is required to be challenged within reasonable time in order to get rid of it nevertheless the fact remains that the learned Judges while pronouncing the judgments relied upon by the learned counsel categorically observed that reasonable time from the date of knowledge. According to Hon'ble Judges, if a void order adversely affecting the rights of a person is in his knowledge he is required to challenge the same within reasonable time from the date of knowledge or from the date of order if pronounced in his presence. Here in this case, as stated earlier, all the transactions are found to have been made behind the back of the appellant and without her knowledge. She, as earlier as possible, after acquiring knowledge knocked at the door of the Court through the present suit. Therefore, the case-law in view of the peculiar circumstance of the case in hand has no relevancy here.
33. The result therefore, is that the appellant though she is not recorded as co-sharer in the joint estate left by her father yet on his death the property under Muslim law has also devolved, upon her in view of Mohammadan Law. She thus, is declared as co-sharer in the joint estate left by her deceased father. She is entitled to a decree for joint possession however, her share in the property after its determination by the Revenue department shall be satisfied through regular partition in view of this decree for joint possession. The judgments and decrees passed by the Courts below are hereby set aside and the Aaknama executed in the year 1956 and all the transactions made thereafter are declared to be ineffective and inoperative to the rights of the appellant to the estate left by her father.