' This judgment shall decide Civil Revisions Nos.1201, 1202 and 1203 of 1996 as these proceed against common judgment of a learned Additional District Judge, Lahore.
2. On 3-4-1990 the petitioner filed three suits against the respondents in these cases. Common contents of three plaints are that the father of the petitioner, namely, Hussain Bakhsh owned land in India (the particulars are not available in the plaints or anywhere else in the record). He died there and against his land his three sons i.e. The brothers of the petitioner, namely, Ghulam Mustafa, Syed Abdul Hakeem and Muhammad Latif got transferred the respective suits-land mentioned in three plaints. I may not here that Civil Revision No.1201 of 1996 pertains to the land transferred to said Ghulam Mustafa. Civil Revision No.1202 of 1996 pertains to the land transferred to the said Muhammad Latif while Civil Revision No.1203 of 1996 pertains to the land transferred to the said Syed Abdul Hakeem. According to the petitioner, she being heir of her father demanded her share when her brothers assured her that she will be given her due share and that her name will be got entered in the Revenue Record. In 1985-86 a dispute arose upon the death of Abdullah Shah, the uncle of the petitioner and they refused to pay share of the petitioner. With these averments she sought a declaration that she is entitled to 1/3rd share in the suit-land mentioned in each of the plaints. The common plea taken by the respondents who are the respective successor in interest of the said three sons of Hussain Bakhsh was that their father died in the year 1921 and according to the custom the land devolved upon three sons. The petitioner never challenged the said devolution at any time. They also raised a specific plea that the suit has not been filed by the petitioner and the plaint does not bear her thumb-mark and is not signed and verified by her. It was further stated that the said three persons filed their respective claims against the land that had since devolved upon them in the year 1921 and the same was transferred and the civil suit, which practically seeks setting aside the transfer order, is not competent in a Civil Court. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed all three suits vide judgment dated 21- 5-1995. The petitioner filed three first appeals, which were also heard together by a learned Additional District Judge, Lahore. Vide a common judgment and decree dated 15-2-1996 the three appeals were dismissed.
3. Mr. M. A. Zafar, learned counsel for the petitioner argues that after induction of section 2-A in the Shariat Application Act. 1962, the petitioner being daughter of the said Hussain Bakhsh is entitled to inherit him under Muslim Personal Law. Further contends that the custom was to be pleaded and proved by the respondents, which has not been done. Learned counsel for the respondents, on the other hand, contends that it is an admitted position on record that the estate of Hussain Bakhsh devolved upon his sons in the year 1921 and the petitioner was excluded under the custom and there is no denial on record of the said fact. According to him the said sons of Hussain Bakhsh having inherited land before the crucial date of 15-3-1948 became the full owner under the Muslim Personal Law and the petitioner has no locus standi to file the suits. He vehemently urges that the petitioner who never entered the witness box while her attorney was unable to answer all the material questions put to him in the cross-examination had not filed the suits. Then contends that the suit-lands were allotted against the claim filed by the said sons of Hussain Bakhsh and the said allotments were not challenged in any manner prescribed by law.
4. I have gone through the copies of the records. The evidence led in all these cases is common.
Now Abdul Hakeem son of Hussain Bakhsh appeared as D.W. I in all these cases. He stated that he is aged 86 years. His father died in India. He owned 7/8 acres of land, which devolved upon three sons. The inheritance mutation was attested in the year 1921 and the land was mutated in favour of three brothers as at that time the daughter could not get any share. After migrating to Pakistan they filed separate claims and they were transferred land separately. This was a Banjar Area. He stated that his sister has not filed the suit. His statement was recorded on 18-12-1993. According to him at the time of attestation of mutation he was 11/12 years. He denied that he had stated before the Tehsildar that they do not have any sister.
5. Now as noted by me above, the petitioner did not appear. Her son Muhamad Akram, who was aged 50/55 years on 10-4-1993 appeared as P.W.4. He stated that his maternal grandfather Hussain Bakhsh owned land in village KaIlay Tehsil Nasow, District, Hushyarpur. He died in the year 1921. He had three sons and a daughter. After his death the land was commonly administered.
According to him he was 10/11 years of age at the time of independence of the country. They took up common residence in Pakistan as well and Ghulam Mustafa was incharge. In his cross- examination he stated that he has not brought along his N.I.C. His remaining statement was recorded on 4-5-1993. He denied that according to N.I.C. His age is 40 years. Then he stated as follows:- {{URDU TEXT}} ' He then admitted that three claims of three brothers came separately from India and according to the same the land was allotted. He admitted that his mother had not questioned the allotment till the year 1975 or thereafter. Following is the response to some material questions:- {{URDU TEXT}} ' Now this statement was concluded on 4-5-1993 whereas the suits were decided on 21-5-1945. No attempt was made to examine the petitioner lady when the attorney had failed to answer the said material questions and had expressed ignorance and had not denied that the parties were not covered by the personal law when Hussain Bakhsh died. The other P. Ws. Are not relevant at all.
Suffice to say that admittedly the parties are Syed whereas Abdul Sattar P.W.1 is a Faqir and Gulab Din P.W.2 is Rajput. While Muhammad Ashiq P.W.3 is Arain.
6. Having thus read the evidence on record and keeping in view the established circumstances that Hussain Bakhsh died and the land was mutated in favour of the sons in the year 1921 coupled with the plea and said unchallenged statement of D.W. I that devolution took place under the custom and no denial of the same was made by the attorney of the petitioner in the witness box persuade me to agree with the cqnclusion arrived at by the learned Courts below that the devolution of the land upon sons in the year 1921 -took place under the custom. There is not even a plea that the petitioner did not know this devolution in the said manner. Thereafter there is no plea that arrival of the separate claims from India and ultimate transfer of evacuee land in favour of the sons was not known to the petitioner. The suits were filed in the year 1990. The said plea and unrebutted statement of D.W.1 sufficiently discharged onus that inheritance in the year 1921 was covered by the custom.
7. Needless to state that under the said section 2-A, a male heir inheriting the property before 15-3- 1948 shall be deemed to be exclusive owner of the same and further it shall be deemed that he has inherited the land under Muslim Personal Law. Thus the last male owners to inherit the land under custom within the meaning of section 2-A of Shariat Application Act, 1962, would be said sons of Hussain Bakhsh and nothing, therefore, turns in favour of the petitioner with reference to the said provision of law. Three civil revisions are accordingly dismissed without any order as to costs.