MIAN SAQIB NISAR, J.--- Allah Din having acquired the suit property measuring 18 Kanals and 14 Marlas situated in Mauza Khoram Tehsil and District Kasur, under the custom, had sold it to the predecessor-in-interest of the petitioners/the vendees; the respondents, who are the sons of Allah Din, on 14.11.1970, filed a suit under the customary law claiming such sale to be against their reversionary rights; the petitioners contested the matter and the learned Civil Judge vide judgment and decree dated 29.5.1980, decreed the suit; against the above, the petitioners preferred an appeal, which was pending, when on 1.8.1983, the provisions of section 2-A of the Muslim Personal Law (Shariat) Application Act, The Punjab (Amendment)
Ordinance, 1983, were promulgated; in the light whereof, the learned ADJ accepted the appeal, holding that the judgment and decree dated 29.5.1980, has become inexecutable. Against this, the petitioners preferred a CR No. 1157 of 1984, which came up for hearing before this Court on 8.5.2002 and was decided in the following terms:-- "I have heard learned counsel for the parties and find that the question whether or not, the possession has been taken over by the petitioners in execution of the decree, dated 29.5.1980, is a question of fact, on which, parties were entitled to lead evidence, before the appeal of the respondent, could be accepted in view of the promulgation of the Act. But this has not been done by the Court of appeal. Resultantly, this revision petition is allowed, the learned Appellate Court is directed to frame requisite issue and after enabling the parties to produce evidence, to prove/disprove, whether or not, the possession was delivered to the petitioners under the decree dated 29.5.1980 to decide the matter afresh in accordance with law, considering the effect thereof.
In the light of above, by setting aside the impugned judgment of the Court of appeal, this petition is allowed."
In the post remand proceedings, the learned ADJ, framed an additional issue i.e. "Whether the physical possession of the suit property was actually delivered to the plaintiff in pursuance of judgment and decree dated 29.5.1980 and if so, what is its effect? And after recording the evidence led by the parties, on the said issue; and while upholding the judgment and decree of the learned Trial Court, on merits and also by giving finding about the possession on the additional issue in favour of the respondents, it has concluded that "With due regard the judgment referred by learned counsel for the appellants/defendants is not relevant according to the peculiar circumstances of the instant case because appeal is being dismissed and impugned judgment and decree is being upheld and it is also established that possession was delivered to the respondents/plaintiffs before the amendment was made in 1983. As such respondent/plaintiffs are protected by proviso of section 2-A of Muslim Personal Law (Shariat) Application Act, '1962."
Accordingly, the appeal has been dismissed vide judgment and decree dated 1.11.2003. Hence this revision.
2. Learned counsel for the petitioners has argued that the proviso to section 2-A would only come into play, where the transaction is past and closed, and under which, the possession of the suit land had been delivered to the decree-holder in execution of the decree. It is stated that where an appeal, which is the continuation of the suit, was pending against the original decree, and in the meanwhile, section 2-A come into force, the suit and the decree were clearly hit by the said law, which are not protected by the proviso thereto. Because, the matter was , not a past and closed transaction thus irrespective that the possession of the land had been taken over by the decree- holder in an execution of that decree, the decree on account of section 2- A was rendered void and inexecutable and the suit stood abated; therefore, the appeal should have been accepted, declaring the decree dated 29.5.1980, as nullity, etc. In this regard, he has relied upon the case reported as Ghulam Muhammad v. Ghulam Qadir, etc. (1995 SCM R 1830).
3. Mr. S.M. Masud, learned counsel for the respondents by relying upon the cases reported as Sardar through Legal Heirs v. Ghulam Haider (1991 CLC Note 252) and Abdul. Ghafoor and others v.
Muhammad Shafi and others (PLD 1985 SC 407 @ 424 (m) (n), has- argued that where the possession of the land under a decree passed. According to the custom, had already been delivered to the plaintiff/decree-holder, when section 2-A came into force, the transaction shall necessarily be covered by the rule of past and closed, so as to attract the proviso to section 2-A of the Act ibid.
4. Heard. Immediately after the partition of the Sub-Continent and with the creation of the Pakistan, a State emerging in the name of Islam, a conscious effort was made by the legislature, to annul the custom in the matters of inheritance, so that the succession, should be governed by the rules of Shariah. The legislative endeavours and the historical background in this behalf has been very enormously given by the Honourable Supreme Court in the case reported as PLD 1985 SC 407 supra. Therefore, I do no find expedient to undertake the same exercise, but shall like to emphasis that the enforcement of Section 2-A is a very substantial and deliberate exertion of the law-maker in same direction and thus has to be construed and interpreted in that perspective.
5. As mentioned earlier, section 2-A was enforced on 1st August, 1983 and sub-clause (b) in unequivocal and categorical terms postulates that any judgment and decree, or the order affirming the right of any reversioner under Custom to call in question such an alienation or delivery of possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to Muslim Personal Law (Shariat) Act. According to subsection (c) all suits and other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree, shall abate forthwith: From the clear wording of the section, there does not seem to be any doubt and ambiguity about the scope of interpretation and the application of this section, which when considered in isolation while excluding the proviso, simply ordains that all the matters pending or decided under the custom, which are contrary to the Shariah, shall abate forthwith and if any decree in violation thereof exists, it shall be rendered void and inexecutable, having no effect or the consequence. And there seems no difficulty in comprehending the section and the purview of its application. However, the proviso to section 2-A, which under the rules of interpretation, only creates an exception to the main provision but cannot override the section, to which it forms part and is purely based upon the rule of finality and conclusiveness, in the judicial dispensation attached to a judgment and decree, has only secured and protected those transactions, which are firstly past and closed, a principle and phraseology well-understood in the legal parlance and secondly, in addition thereto, the possession under such transactions has also been delivered to the decree-holders. Thus in order to attract the proviso, the two conditions mentioned above must co-exist and are duly satisfied. But if one of those is missing, the proviso shall not apply. However, in order to adjudge, if any transaction is past and closed, the condition precedent is that the chapter in relation to the subject, to which the transaction pertains, must be conclusively shut, meaning thereby that the decree, if any passed, must have attained the finality, either it is not challenged by the aggrieved party or it so done by crossing the forums of appeals, or revisions, etc. In the hierarchy, it is passed. If however, any appeal is pending against a judgment and decree, particularly, the first appeal, which is an important right of a litigating party and is the continuation of the suit/lis, the, entire matter is rendered reopen and during the pendency of the appeal, no decree can be held to be final, conferring thereto the sanctity of the doctrine of past and closed transaction. In support of the above, reliance can be placed upon the judgment of the Division Bench of the Karachi High Court, reported as Messrs Lever Brothers Pakistan Ltd. v. Customs, Sales Tax and Central Excise Appellate Tribunal through Registrar and another (2005 PTD 2462).
In the view of the above, obliviously, till the petitioners' pending appeal was awaiting decision, the judgment and decree passed in favour of the reversioners/respondents was never final or conclusive and was subject to the verdict of the Court of appeal. But before any decision could be made, the provision of section 2-A was enforced and thus not only the suit of the respondents stood abated on account of the sub-clause (c) of the section, rather the decree passed in their favour under the dictate of sub-clause (b) became void, nullity in the eyes of law and was rendered inexecutable, therefore, irrespective whether the possession of the property, had been taken over by the respondents during the pendency of the appeal, may be on account of the reason that no injunction was granted by the Court of appeal or it was during the period, when the appeal yet not filed, would not bring the case of the respondents within the mischief of the proviso, which as mentioned earlier, comprises of two parts and both the conditions provided therein are to squarely satisfied and co-existent.
6. The question about the application and the effect of section 2-A to the pending cases particularly, with reference to the appeal against the judgment and decrees procured by the reversioners under the customary law, came into consideration in the judgment of the Honourable Supreme Court titled Ghulam' Muhammad v. Ghulam Qadir and 2 others (1995 SCM R 1830) and the Court held as below:-- "This provision declared the judgment and decrees already obtained by reversioners as void and of no legal effect. Confronted with this legal position, learned counsel sought to rely upon the proviso to section 2-A, which excluded the application of the substantive provisions of the said section to the transactions past and closed where possession of the land had already been delivered under the decrees obtained by the reversioners under custom and contended that the petitioners having obtained the possession of the suit land under the decree passed by the Trial Court, long before section 2-A was inserted in the West Pakistan Muslim Personal Law (Shariat) Act by amending Ordinance XIII of 1983, the provisions contained therein were not attracted to his case. In the submission of the learned counsel, delivery of possession of the suit land to the petitioner under the decree of the Court rendered the transaction past and closed within the purview of the proviso afore-mentioned and consequently section 2A was not applicable to his case. We are not persuaded to accept this contention.
Possession of the suit land is no doubt shown to have been delivered to the petitioner in execution of the Trial Court's decree but that decree was not final. It was brought under challenge in an appeal before the District Judge and filing there, the, respondents preferred second appeal in the High Court. Thus notwithstanding the section of the Trial Court's decree and delivery of possession to the petitioner, the dispute remained alive throughout until the High Court allowed the respondents' appeal and setting aside the judgments and decrees of the Courts below dismissed the petitioner's suit. Needless to observe that the delivery of nossession in execution of the Trial Court's decree was subject to the result of appeal before the District Judge and further appeal in the High Court and of course C.P.C. Provided for restitution on acceptance of appeal. In the circumstances, mere delivery of possession to the petitioner did not make it a case of past and closed transaction with the result that the petitioner cannot take the benefit of proviso relied upon by his learned counsel."
In my view, the proposition has been clinched and any law to the contrary expressed in the judgment reported as .1991 CLC Note 252, has no legal effect.
7. As regards the arguments of learned counsel for the respondents that the judgment reported as abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 SC 407 @ 242 (m) (n), suffice it to say that the paragraphs (m), (n) have no application to the facts and circumstances of the case, which as already submitted above, is covered by the judgment of the Honourable Supreme Court reported as 1995 SCM R 1830.
In the light of whatever has been stated above, I am constrained to hold that in fact the Court of appeal should have rendered and declared the judgment and decree of the learned Trial Court as being void, inexecutable and the suit haVing abated with the consequences to follow, therefore, the revision petition is accepted; the judgment and decree of the Court of appeal is set aside and it is held that the judgment and decree dated 29.5.1980 passed by the learned Trial Court, in favour of the respondents is void and the respondents' suit stands abated. No order as to the costs.
Civil Revision .