The instant revision i,e, 2547 of 2004 as also F.A.O. No,264 of 2004, C.R. No,3044 of 2004 and F.A.O.
No,330 of 2004, are being disposed of together as all involve common questions of law and facts.
2. Briefly stated the facts of the case are, that Gama and Shera,were two brothers; Gama had a son Fateh Sher and two daughters Mst. Changi and Mst. Gullan; Shera was succeeded by Lal and Jamal; Fateh Sher died issueless. The year 1927, and Mst. Fateh Khatoon his widow became the limited owner of the estate of the deceased. Lal and Jamal, filed a 'uit for declaration on 8-3-1936, along with Mst. Changi, challenging the limited ownership of Mst. Fateh Khatoon by relying upon a will in tlleir favour by Fateh Sher; this suit was compromised and a joint application dated 7-12-1937 Exh.P-6, in this behalf was moved to the Court by the parties, according to which, it was agreed that Mst. Fateh Khatoon shall retain 1/3rd of the estate as a limited owner, Whereas 2/3rd shall be the exclusive ownership of Lal and Jamal, who were acknowledged to be already in possession of such share. In terms of the compromise, the suit was decreed on 7-12-1937, Exh.P-8 and this decree was given due effect in the Revenue Record through Mutation No,394 dated 29-11-1938.
3. Out of the 1/3rd share, which Mst. Fateh Khatoon retained as a limited owner under the aforesaid decree, she through Mutation No,582 dated 24-10-1950, sold certain land in favour of Baro, Hayat, and Noor Muhammad, etc., the predecessor in interest of some of the defendants. Mst. Changi, Mst.
Gullan, Lal and Jamal filed a suit in the year 1950, challenging the sale as being without the necessity and against their reversionary rights. This suit was decreed on 29-11-1951, Mst. Fateh Khatoon, was affirmed as the limited owner of 1/3rd share and the sale was adjudged as ineffective qua the reversionary rights of Lal and Jamal, but was dismissed to the extent of two ladies.
However, the decree was to take effect on account' of the re-marriage or the death of Fateh Khatoon.
4. Mst. Fateh Khatoon, died on 12-1-1981 and in pursuance of the decree mentioned above, the Mutations Nos.37 to 42 were attested on 14-9-1981, in favour of Lal and Jamal. Aggrieved of the above, the vendees of such sale or their successors challenged the mutations on the Revenue side as being illegal and ineffective qua their rights. Their appeal was rejected by the Collector Khushab vide order dated 17-5-1982 Exh.P-25. They further assailed the matter through revision, but without any success, which was dismissed by the Commissioner by the order dated 17-10-1982 Exh.P-26.
The respondents thereafter approached the Board of Revenue in its revisional jurisdiction, which petitions were accepted on 18-12-1985, Exh.P-27; the relevant portion of the order is reproduced as under::-- "According to the decree granted by the Civil Court Fateh Khatoon was declared to be the owner of 1/3rd property with 2/3rd property vesting in Lal and Jamal. The sale subsequently made by Mst.
Fateh Khatoon in favour of her brother Baroo 1/2, Muhammad Hayat 1/4th and Noor Muhammad 1/4th is, therefore, to be considered as restricted as to the 1/3rd portion of the property, which Mst.
Fateh originally inherited in 1927 as a limited owner. 2/3rd property would continue to vest with Lal and Jamal and their successors in interest. 3/4th of the property which vested with Mst. Fateh Khatoon after she had alienated 1/4th property in favour of Baroo, Muhammad Hayat and Noor Muhammad would then pass on to her thereafter her death in 1981. Accordingly, it is ordered as follows:-
(i) Of the total property of 3200 Kanals inherited by Mst. Fateh Khatoon in 1927, she become full owner by virtue of the civil decree of 1/3rd property measuring 1066 kanals and 7 marlas; (ii)' of this 1066 kanals and 7 marlas, 1/4th share will vest in Baroo 1/2, Muhammad Hayat 1/4th and Noor Muhammad 1/4th;
(iii) the remaining 3/4th of 1066 kanals and 7 marlas would be inherited by the legal heirs of Mst.
Fateh Khatoon on her death in 19S1; and
(iv) the remaining property (3200) k-minus 1066 K-7 Ms) would vest in Lal and Jamal/their successors. This decision would be implemented in the Revenue Record." On 22-2-1986, the successors of Jamal and Lal brought a civil suit, challenging the order of the Board of Revenue, claiming that out of 1/3rd of the share, which was allowed to be retained by Fateh Khatoon, as the limited owner, they are entitled to 3/4th share on account of the inheritance, as being the legal heir of Fateh Sher, the last male owner of the property and only 1/4th share could have been validly sold by Fateh Khatoon to the vendees. They thus claimed to be the co-sharers of the property to the extent of their share mentioned above. This suit has been contested by the respondents, and the following issues were framed:-
(1) Whether plaintiffs are owners in possession of suit-land in their capacity as heirs and on the basis of decree of Civil Court dated 7-12-1937 and 19-11-1951 and Mutation bearing Nos.37 to 42, attested on 14-9-1981, and that the order passed by the Collector/EACO & Additional Commissioner(C), Sargodha, respectively dated 17-5-1982, and 17-10-(sic) are in accordance with law as held by Civil Court?
(2) Whether order passed by member Board of Revenue dated 18-12-1985 is against law, facts, without authority, void ab inito, arbitrary, mala fide, as such it fails to effect rights of the parties?
(3) Whether plaintiffs are entitled to the possession of land measuring 399 kanals fully described at "B" of headnote of plaint?
(4) Whether the suit is not maintainable in its present form and as such plaintiffs are not in possession of the suit-land?
(5) Whether suit is not properly valued for the purposes of Court-fee and jurisdiction? If so, its effect?
(6) What should have been the proper court-fee for both the purposes?
(7) Whether suit is bad for misjoinder of causes of action and necessary parties?
(8) Whether Consolidation of Holding Land Ordinance serves a bar to the institution of this suit?
(9) Whether suit is not maintainable in view of preliminary objection No, ?
(10) Whether defendants are entitled to recover special costs under section 35-A, C . P. C?
(11) Relief. After the trial, the learned Civil Judge, seized of the matter, vide judgment and decree dated 16-5- 1995, dismissed the suit, holding that on the enforcement of the Muslim Personal Law (Shariat)
Application Act 1962, the decrees dated 7-12-1937 and 19-11-1951, shall have no legal effects and shall be deemed to be void; therefore, Mst. Fateh Khatoon, would inherit 1/4th share in the whole of the estate of the deceased Fateh Sher and thus the sales made by her within the limits of such share, in favour of the respondents, is valid. The learned Civil Judgethough the order of the Board of Revenue was never challenged before him by the respondents, but of his own, declared the order of the Board of Revenue as illegal, in the following words: "Plaintiff Fateh Khatoon was entitled to inherit the property of deceased husband according to her Islamic share of 1/4th out of his property, whereas MBR confirmed 1/3rd share to Fateh Khatoon and as such his order to that extent is held to be illegal." The plaintiffs were thus not found entitled to 399 kanals of the land, about which, they sought the declaration of ownership; the suit was also declared to be not maintainable, as the possession had not been asked. It may be pertinent to mention that on issue No,1, the trial Court has made lengthy discussion on account of which, its view is quite indiscernible about the limitation. But it seems if the Court was also of the view that the suit is out of limitation, whereas, there was no issue framed in this behalf. Anyhow, aggrieved of the above, the petitioners challenged the judgment and decree in appeal, which has been sustained by the learned Court of appeal, with the additional clear reason that the suit is barred by limitation.
5. Learned counsel for the petitioners has argued that according to the consent decree dated 7-12- 1937, passed in favour of Lal and Jamal, they had become the exclusive and absolute owners of 2/3rd estate of the deceased Fateh Sher, whereas the limited ownership of Mst. Fateh Khatoon, was restricted only to 1/3rd share. The enforcement of the Muslim Personal Law (Shariat) Application Act 1962, never effect the aforesaid decree, which was never passed under the Customary Law, rather on the basis of their free-will; and the parties thereto, entered into an agreement, which culminated into the decree of the Court. It is further submitted that in the year 1950, when Mst.
Fateh Khatoon, alienated the suit property out of her 1/3rd share, which she was holding as a limited owner, the petitioners were constrained to file a civil suit, and the Court through its judgment dated 29-11-1951, affirmed the earlier' decree dated 7-12-1937 as under:- "The plaintiffs have also proved that compromise dated 7-12-1937, of which Exh.P-1 is the attested copy. It is definitely mentioned in Exh.P-1 that Mst. Fateh Khatoon (defendant No,4) would retain one third share for her life time or till remarriage only. In this way instead of being made a full owner of one third share in her husband's land defendant No,4 continued to hold her husband's one third land in a manner peculiar to a widow's life estate." Furthermore, while giving findings on the effect of the Shariat Act, 1948, upon the rights of the parties, it was held "It is true that under the provisions of the Shariat Act, 1948 she will be entitled to one fourth share as Fateh Sher's heir under Islamic Law because he died without leaving any issue but this 1/4th share will be only out of the land held by her now as a limited heir and not out of the whole of the land left by him." Therefore, according to the learned counsel, under the decree dated 7-12-1937, Lal and Jamal had acquired the rights of absolute ownership of the 2/3 estate of Fateh Sher, and to this an extent, the matter was a past and closed transaction; which was not effected or reopened in any manner on account of the enforcement of the Muslim Personal Law (Shariat)
Application Act, 1962. The first decree, therefore, shall not be rendered void and ineffective, rather it is only the decree dated 29-11-1951, which would be deemed to have abated, and. Mst. Fateh Khatoon became the co-sharer to the extent of 1/4th out of 1/3rd which, she was holding as a limited owner, along with Lal and Jamal, as being the legal heir of the last male owner, under the Islamic Law of Inheritance. On the basis of above, it is submitted that it is settled law by now, that the possession of a co-sharer shall be the possession of all and that no limitation shall run against a co-sharer, thus the contrary 'view expressed by the two Courts below cannot be sustained. It is also submitted that the point of limitation had never been an issue between the parties, resultantly, to non-suit the petitioners on that basis, without given them proper opportunity of adducing the evidence, is nullity in the eye of law. Likewise, it was argued that the petitioners being the co- sharers in the property, asking the possession under joint Khata, their suit should not have been dismissed on account of the maintainability for not asking for the separate possession of the property, when they were asserting the Hissadari possession thereof.
6. Conversely, Kh. Saeed-uz-Zafar, learned counsel for the respondents has argued that the petitioners' suit is out of limitation, because they have never challenged the sales in favour of the respondents, within 12 years from the enforcement of the Muslim Personal Law (Shariat) Application Act 1962, even if considering that they had become the co-sharers of the property besides, on the promulgation of the Shariat Application Act 1962, as also the enforcement of section 2-A of the Muslim Personal Law (Shariat) Application Act (Amendment) Ordinance, 1983, the decrees dated 7- 12-1937 and 29-11-1951, being under the Customary Law and on the basis of the reversionary rights of Lal and Jamal, shall stand abated and the entire estate of the deceased, shall be deemed reverted to the deceased for its distribution to his legal heirs according to the Shariat Law, therefore, Fateh Khatoon being widow, shall have 1/4th share, out of whole estate of her husband and resultantly, the sales made by Fateh Khatoon, within the limit of her 1/4th, are protected under the law.
7. I have heard learned counsel for the parties and find that there was no issue about the limitation and resultantly, both the Courts have erred in non-suiting the petitioners an a question, which has never been the proposition between the parties at the trial or before the Appellate Court. Assuming that it is purely a question of law and on the basis of the admitted facts of the case, can be resolved; and under section 3 of the Limitation Act, it is the duty of the Court to see if a lis before it within time or not Yet the legal position in this behalf is quite simple. Because admittedly, Lal, etc. Challenged the sale made by Fateh Khatoon in favour of the vendee within the prescribed period of limitation under the provisions of the Punjab Limitation Act, 1920 and that is at the best what they could have done under the law in vogue at the relevant time. This suit was decreed in the terms as below:-- "In view of the above findings, this suit, so far as it relates to Mst. Changi and Mst. Gullan, fails but succeeds as regards Lal and Jamal plaintiffs. I, therefore, dismiss Mst. Changi plaintiff's suit but pass a decree in favour of Lal and Jamal, plaintiffs, granting them the declaration that the sale in suit, shall be void and inoperative as against their reversionary rights after the death or remarriage of defendant No,4." Obviously the above decree was to take effect, on the happening of the eventualities mentioned therein. But as per the record, Mst. Fateh Khatoon never married and died on 12-1-1981, there was thus no occasion for Lal, etc. To enforce the decree, before the termination of the limited ownership of Mst. Fateh Khatoon. However, in the meantime, a vital and important legal change was brought by West Pakistan Muslim Personal Law (Shariat) Act, 1962, and under section 3 thereof, the limited ownership in respect of the immovable properties held by a Muslim Female under the customary law, was terminated. In addition under section 7 of the Act, inter alia Punjab Limited (Custom) Act, 1920, Punjab Custom Power to Contest Act, 1920 and Punjab Muslim Law, (Shariat Application) Act, 1948, were repealed, with the further signified legal consequences that the limited owned property would revert back to the last male owner, who in this case, was Fateh Sher, to A be distributed amongst his legal heirs, whosoever, were surviving at that time, according to. The Muslim Law of Inheritance. In such a situation, Mst. Fateh Khatoon, remains entitled to the ownership of 1/4th share and the remaining has to go to Mst. Changi and Mst. Gullan, Lal and Jamal. The decree dated 19-11- 1951, on account of the law, was rendered nugatory and no further action on the basis of such decree under the earstwhile customary law could have been initiated or sustained by Lal, etc. Rather they along with Mst. Changi, Mst. Gullan and Mst. Fateh Khatoon, or her vendees, who stepped into her shoes, became the co- B owners of the property by operation of law and it is settled by now that there is no limitation for a co-sharer, to enforce his such rights against another co-sharer. Likewise, it is also an eminent principle, that period of limitation, shall not impede the enforcement of the rights of inheritance. Thus on both the counts, the suit of the plaintiffs could not be debarred by limitation. The view taken by the Courts below, particularly, the Court of appeal, that the suit is barred on account of limitation, in the following words:- "As the decree passed in 1951 by Civil Court was not executable because of custom of Limitation Act, 1920 was applicable to, that decree and limitation for controlling alienation for filing a suit for declaration is 6 years and after death of limited owner, suit for possession should have been filed within three years. In this case limited ownership was terminated by operation of Muslim Personal Law, Shariat Application Act, 1962 and plaintiffs should have filed suit within three years from the termination of limited ownership, which they have not filed. According to Customs Limited Act of 1920, it is mandatory after having the decree of declaration that after termination of limited ownership, the claimants of property should file a suit for possession within prescribed period of 3 years but the present appellants-plaintiffs have not filed a suit for possession within time. If Article 141 of Limitation Act which is general law, is to be applied then limitation for filing a suit for possession is 12 years and as limited ownership of Fateh Khatoon terminated in 1962, therefore, plaintiffs should have filed suit upto 1974, which they have not filed within the limitation." is based upon erroneous understanding and application of law. In the facts and circumstances of the case, Punjab Limitation Act, 1920 had no application at all, because Lal, etc. Were not seeking the implementation of any decree declaring their rights under the customary law, rather, were asking for the enforcement of their rights of co-ownership and inheritance, which they had acquired under the law, and for which, as mentioned earlier, there is no limitation. The general law regarding the suits for the possession of the immovable property also did not create any hurdle in the way of Lal, etc, because the possession of the respondents/defendants was in the nature of the co-owners and Article 141, etc. Was not attracted to the matter at all. Therefore, the view of the Courts below that the suit of the petitioners is barred cannot sustain, and it is hereby set aside, with the result that the dismissal of the suit on this account by two Courts below, also stand reversed.
8. The other key question, involved in the case is about the effect of the decrees dated 7-12-1937 and 29-11-1951. As regards the first decree is concerned, suffice it to say that Lal, etc. And Mst.
Changi, had filed a suit for the declaration,, against Fateh Khatoon wherein Mst. Changi claimed that Fateh Sher, had made a will in her favour, about the whole of the property and the parties in that suit, entered into a compromise out of their own free-will, whereby Mst. Fateh Khatoon, voluntarily gave 2/3rd share of the estate of Fateh Sher to Lal, etc., whereas 1/3rd share was retained by her, as being the limited owner. Lal; etc. In pursuance of the said decree, got sanctioned the Mutation No,394 dated 29-11-1938 and thereafter their possession was under the decree. Thus for all intents and purpose, they became the exclusive owners of the property, which whereafter, never remained a part of the estate of Fateh Sher, to be distributed after the termination of the limited ownership of Fateh Khatoon. It is only 1/3rd share, which remained with Mst. Fateh Khatoon, as the limited owner. The above reasoning is further strengthened that when Mst. Fateh Khatoon, sold her part of 1/4th share in favour of contesting respondents; Lal, etc., Mst.
Gullan and Mst. Ghangi,all the four challenged the said sale as against their reversionary rights and the Court was pleased to reaffirm the exclusive ownership of Lal, etc. About 2/3rd share of Fateh Sher's estate, which is undoubtedly clear from the various paragraph of the judgment dated 29-11- 1951 reproduced above. Consequently, when in the year 1962, the limited ownership of the females terminated, it only related to 1/3rd which Fateh Khatoon was holding under the custom and had nothing to do with 2/3rd share, which had already been conferred upon Lal, etc. Under the decree dated 7-12-1937. This decree as mentioned earlier had attained the finality and was a past and closed transaction. Mst. Fateh Khatoon, as the heir/widow of Fateh Sher, was only entitled to 1/4th of 1/3rd share, of which, she could validly transfer to the respondents and could be protected. The Courts below have fallen in serious error to hold that the decree dated 7-12-1937 had abated and therefore, Fateh Khatoon, shall be entitled to 1/4th share of the whole estate; this is absolutely misconceived and against the law, also for the reason that even under the provision of section 2-A of the 1983 Ordinance, such decree never abated. Therefore, the judgments and decrees of the Courts below, refusing the relief to the petitioners with regard to their rights of inheritance in the property, cannot sustain.
9. As regards the question of maintainability of the suit for the lack in asking the separate possession is concerned, it may be held that the suit of the petitioners is for the declaration, about their rights of inheritance in the property and also for the joint possession. Obviously, if they are declared to be the co-sharers of the property they get Hissadari possession and therefore, the omission in this behalf, shall not bring the case of the petitioners within the mischief of the proviso to section 42 of the Specific Relief Act. Resultantly, the findings of Courts below particularly, the trial Court, that the suit is incompetent cannot be upheld.
10. The nutshell of the above discussion is, that the decree dated 7-12-1937, was not the customary decree, rather based upon an agreement between Lal etc. And Fateh Khatoon, which was arrived at, out of their free-will, containing a superadded command of the Court, the said decree was never challenged by Mst. Fateh Khatoon or any other person deriving any subsequent title from her and therefore, has become final; the said decree was given due effect in the Revenue Record and the possession of Lal., etc. Was recognized under the decree the said decree when considered in the subsequent litigation, about the reversionary rights of Lal, etc. Against Mst. Fateh Khatoon and the contesting respondents, was affirmed in the manner as stated in the preceding paragraphs, and despite having abated by the operation of law, it is, however, clear from the decree that 2/3rd share was severed from the limited ownership of Fateh Khatoon and was given in the absolute ownership of Lal, etc. And was never a customary decree. In the light of above, by the setting aside the impugned judgments and the decrees, the suit of the petitioners is allowed but only to the extent of 1/12th share of 1/3rd share of the deceased Fateh Sher's estate, as this is the share, which they shall be entitled to inherit, as being the legal heir of Fateh Sher, whereas, 1/4th shall go to Mst. Fateh Khatoon, while remaining 2/3rd to Mst. Gullan and Mst. Changi. And if the sales made in favour of the contesting respondents falls within the limits of 1/4th share of Fateh Khatoon, such sales shall be protected and be valid. However, to the extent of 2/3rd share of Gullan, etc., it cannot be declared invalid in the present suit, because they have never come forward to challenge the said sales regarding enforcement of their rights and their share cannot be given to the petitioners. Therefore, as mentioned earlier, the suit of the petitioners shall be decreed to the extent of 1/12th of 1/3rd, which Mst. Fateh Khatoon has retained as limited owner of the property with the relief granted to the petitioners about the joint possession of such sharer.
As regards C.R. No,3044 of 2004, and F.A.O. No,264 of 2002, as also F.A.O. No,330 of 2004, are concerned, these have been filed by the petitioners therein, for seeking the enforcement of the compromise, allegedly entered into between some of the parties, which has not given effect by the lower Appellate Court. I find that in the light of the decision made in the noted petition i,e, C.R.
No,2547 of 2004, the said revision petition as also the appeals, have become infructuous, and therefore, the same are accordingly disposed of.