' The instant R.S.A. No.731 of 1980, R.S.A. No. 732 of 1980 and C.R. No.1734 of 1980, are being disposed of together, as common questions of law and facts are involved in all these matters.
2. The present appeals are pending since 1980. Today, the appellant's son Muhammad Khalil-ur- Rehman has put in appearance, whereas, they are represented by Messrs Ghulam Sabir, Rana Abdur Rahim Khan and Rana Muhammad Arshad Khan, Advocates, but none of them is present.
Muhammad Khalil-ur-Rehman simply requested for an adjournment, but no valid reason has been given. I have asked him to argue the matter, but he has declined. I could have dismissed these appeals for non-prosecution, but after hearing the learned counsel for the petitioners in the connected Civil Revision No.1734 of 1980, which is against the same judgments and decrees, I myself scanned through the record and decided not to knock out the appellants for non-arguing the case, but to dispose of the matters on merits.
3. Briefly stated the facts of the case are that, Rehmat Khan son of Baray Khan was the owner of certain agricultural land situated in village Tajopur Kalan Tehsil and District Hoshiarpur, East Punjab.
He died in India before partition and his estate was mutated in favour of his widow to the extent of 1/6th share, 1/6th was given to Mst. Ghulam Fatima, widow of his predeceased son Tufail Khan, whereas 2/3rd share equally in favour of Taj Muhammad, A Muhammad Ali Khan and Muhammad Hussain Khan, .His three surviving sons. In this regard, the Mutation No.1959, dated 26-5-1943 was duly sanctioned. After the partition of the Sub-Continent, Mst. Ghulam Fatima, widow of Tufail Khan came to Pakistan and in lieu of the land in her name left in India, got 364 Kanals and B 18 Marlas of land allotted to her situated in Mauza Mananwala, Jodh Singh Tehsil and District Sheikhpura.
However, subsequently she through Mutation No. 153, dated 9-1-1961, sold the aforesaid land in favour C of Rana Telemand Khan, her real brother. Muhammad Hussain son of Rehmat Khan, Hamid Khan, Nawazish Khan sons of Muhammad Ali Khan the other son of Rehmat Khan, Aziz Bibi, Ghulam Fatima daughters of Rehmat Khan, Surrayya, Naziran, Hamidan daughters of. Muhammad Ali Khan, brought a suit for possession by challenging the aforesaid sale. Besides, Mst. Tabassum Naheed alias Shagufta Begum the daughter of Muhammad Rafique who was the son of Taj Muhammad Khan, also brought a separate suit for the possession, claiming the share in the suit property and challenging the aforesaid sale. Both the suits were consolidated and the following issues were framed:-- ' Issues:-
(1) Whether this suit is time-barred?
(2) Whether this suit is not maintainable in its present form?
(3) Whether this suit is res judicata?
(4) Whether plaintiffs are estopped to bring this suit?
(5) Whether Ghulam Fatima was limited owner of the suit-land?
(6) Whether Rehmat Khan was last male holder of the suit-land?
(7) Whether this suit is bad for the misjoinder of any party?
(8) Whether plaintiffs are heirs of Rehmat Khan?
(9) Whether sale in favour of defendant No.2 is ineffective against the plaintiffs?
(10) Whether limited estate was terminated by operation of law, if so, from which date?
(11) Whether sale in favour of defendant No.2 is for consideration and legal necessity?
(12) Whether plaintiffs are entitled to mesne profits, if so, at what amount?
(13) Whether plaintiffs have no locus standi for this suit?
(14) Whether this suit is not properly valued?
(15) Whether Tabasum Naheed is heir to Rehmat Khan last mala holder?
(15-A) Whether Mst. Ghulam Fatima defendant succeeded to the estate of Rehmat deceased as full owner under special custom prevalent in the tribe of the deceased? OPD No.l.
(16) Relief.
4. The parties were put to trial and the learned Civil Judge seized of the matter, decided the issues as under:-- ' Issue No.1 against the appellant. Issue No.2 against the respondent. Issue No.3 against the appellant. Issues No.4 against the appellant.
' Issues Nos.5 and 15-A against the appellant.
' Issues Nos.6 and 7 against the appellant.
' Issues Nos.8 and 15 against the appellant.
' Issues Nos.9 and 11 against the appellant.
' Issue No.10 against the appellant. Issue No.12 against the respondent.
' Issues Nos.13 and 14 against the appellant.
' Resultantly both the suits were decreed vide judgment and decree, dated 13-11-1979 in the following manner:-- "Admittedly at the time of death of Rehmat Ali Khan his sons Taj Khan, Muhammad Ali, Muhammad Hussain and his daughters Mst. Aziz Bibi, Mst Fatima, Rashidan Bibi, and his widow Amir Begum were alive. After the termination of the limited estate of defendant No.1 the inheritance would devolve upon the said legal heirs of Rehmat Khan. The shares of the said legal heirs would be Muhammad Hussain, Muhammad Ali and Taj Muhammad to the extent of 14/72 each. Mst. Aziz Bibi, Ghulam Fatima and Rashidan daughters of Rahmat Khan to the extent of 7/72 each and 9/72 share would devolve upon the widow Amir Begum. Now Taj Muhammad Khan had since died leaving behind Muhammad Rafiq his only son who is survived by defendant No.5 Tabassum Naheed, the plaintiff in the rival suit. This being so Tabassum Naheed would be entitled to 7/72 share out of the share of Taj Muhammad Khan and remaining 7/72 share would revert to Muhammad Hussain, whose share will be enhanced to 21/72. The share of Muhammad Ali Khan i.e. 14/72 would devolve upon his legal heirs i.e. Plaintiffs Nos.1 and 2 to the extent of 14/288 share each. Surya, Naziran and Hamidan plaintiffs and Mst. Sharifan defendant No.4 to the extent of 7/288 share each. The learned counsel appearing on behalf of Muhammad Hussain had made a statement on 5-11-1979 and stated that plaintiff No. 1 admitted the defendant No.1 to be full owner and as such the suit to the extent of plaintiff No.1 should be dismissed. In these circumstances, the share of the plaintiffs out of the suit-land would be as follows:--Hamid Khan and Nawazish Khan plaintiffs are entitled to 14/288 share each. Sarya, Naziran and Hamidan daughters of Muhammad Ali Khan are entitled to 7/288 share each and Aziz Bibi and Fatima Bibi daughters of Rahmat Khan are entitled to 28/288 share each. Defendant No.5 Tabassum Naheed, the plaintiff in the cross-suit, is entitled to 28/288 share.
' Accordingly a decree for possession of land measuring 105/288 share out of the total suit-land measuring 364 Kanals, 18 Marlas is passed in favour of the plaintiffs Hamid Khan and others and against the .Defendants Nos.1 and 2 with costs. The suit of the plaintiff No.1 fails as withdrawn which is hereby dismissed. The suit of Mst. Tabassum Naheed is decreed in her favour and against the contesting defendants for possession of the suit-land to the extent of 28/288 share out of the total land measuring 364 Kanals and 18 Marlas with costs."
5. Against the above judgment and decree, Rana Talemand Khan filed two appeals, whereas Hamid Khan etc. Also filed an appeal. All these including the cross-objections filed by Ghulam Fatima, were dismissed by learned Addl. District Judge Sheikhupura, and the judgment and decree of the learned trial Court has been upheld. There is a concurrent finding of facts recorded by both the Courts below, that the suits brought .By the respondents/ plaintiffs in the year, 1973, are not beyond the limitation. In this behalf, the learned Court of appeal particularly has considered the effect of the Punjab. Muslim Shariat Application (Removal of Defects) Act, 1975. It has been further concurrently found by the learned Courts below, that the land in question was acquired by Ghulam Fatima as a limited owner under the customary law, being the widow of the predeceased son of Rehmat Khan. She under the special custom never inherited the land to the extent of 1/6th share and, therefore, was not the exclusive and the full owner of the property, which she could have sold in favour of her brother Rana Talemand Khan. Thus, being the limited owner, the sale made by the lady on 9-1-1961, on the enforcement of the Punjab Muslim Personal Law (Shariat) Application Act, 1962, when her limited ownership terminated, was rendered void.
6. The appellant's son, who is present in the Court, has been repeatedly asked to show, if there was any special custom, which has been proved on the record to establish, that Ghulam Fatima had inherited the property instead of the mutation being in her favour as limited owner, he has been able to show none. Even the special custom, under which the widow of a predeceased son could inherit the estate of her father-in-law in the capacity as an owner, has not been proved on the record. The only reason that she has not been shown as a limited owner in Mutation No.1959, dated 26-5-1943, the omission by itself is no proof either of the special custom or her inheritance of the property on account of such custom. It is an admitted position on the record that being a widow of the predeceased son or otherwise, Ghulam Fatima H on the death of Rehmat Khan would not inherit his estate, as she was not his legal heir.
7: As regards the question involved in the matter, whether the estate of the limited owner terminates by force of law, this is very much clear from the provisions of section 3 of the Muslim Personal Law (Shariat) Application Act, 1962. The other issue, if the sale in favour of Rana Talemand Khan, is ineffective and whether the sale was for legal necessity, suffice it to say that, the appellant or even Ghulam Fatima has failed to prove anything on the record, compelling her or legally necessitating the sale of the property in favour of her brother. As there is a concurrent finding recorded on the material issues, particularly about the lack of legal necessity of the sale, I, J while going through the evidence, do not find it to be erroneous for any misreading and non-reading.
Therefore, both the appeals fail.
8. The facts of the Civil Revision No.1734 of 1980 are, that this has been filed by Hamid Khan etc., the co-plaintiffs of the first suit with Muhammad Hussain and claim, that they have been given the less share as against their entitlement. Hafiz Khalil Ahmad, Advocate, their counsel, has not been able to show, as to how the. Learned Civil Judge has calculated the share less than their entitlement.
The submission, that the petitioners have moved some application under Order XLI, rule 27, C.P.C..
To prove the death of their father afterwards, suffice it to say that, the mutations, which they wanted to produce before the Court below, were available with the petitioners and they were also cognizant of the nature of the controversy and the facts required to be proved, yet for no reason, these documents were not produced in evidence. Moreover, the mutations are not the conclusive proof of the date of death of a person, resultantly, I do not find any reason to interfere in the revisional jurisdiction as well.
' In the light of above, both the R.S.As. And the Civil Revision are hereby dismissed.