' MUHAMMAD JEHANGIR ARSHAD, J.---The facts in brief are that on the death of Ghulam Muhammad predecessor in interest of the parties, his mutation of inheritance No,110 was attested on 12-4-1950 (Exh.P-1) in favour of his son Muhammad Iqbal as the sole heir. The said mutation was challenged by Mst. Zubaida Bibi (predecessor in interest of respondents Nos.1 to 4) and Mst.
Khurshid Bibi respondent No,5 claiming themselves as daughters of said Ghulam Muhammad deceased through plaint, dated 11-8-1997 with the claim that Muhammad Iqbal was not the sole heir of Ghulam Muhammad deceased but he had also left two daughters named above, whereas, said mutation was got attested by omitting their names. It was further averred in the plaint that Muhammad Iqbal in his life time had been paying their share to them and after his death in the year, 1995, his heirs i.e, the present petitioners has also been paying share of produce to them.
However, when the respondents wanted to get their shares separated the heirs of Muhammad Iqbal refused and on obtaining copies of revenue record it transpired that the petitioners had been deprived of their right of inheritance of their father Ghulam Muhammad which compelled them to file the suit. The suit was contested by the present petitioners on the ground that Mutation No,110 was correctly attested and that respondents had nothing to do with the inheritance of Ghulam Muhammad. No further plea with regard to the claim of the respondents was taken in the written statement. Keeping in view the pleadings of the parties the learned trial Court framed the following issues:-- Issues:
(1) Whether the plaintiffs being the legal heirs of GhulamMuhammad deceased are entitled to their respective shares in the suit property, if so, to what extent? OPP.
(2) Whether mutation of inheritance, dated 12-10-1950 is wrong, illegal, collusive, void, ineffective qua the rights of the plaintiffs? OPP.
(3) Whether the plaintiffs have got no cause of action and locus standi to file the suit? OPD.
(4) Whether the suit is barred by time? OPD.
(5) Whether the suit is not maintainable in its present from? OPD.
(6) Whether the plaintiffs are estopped by their words and conduct to file the suit? OPD.
(7) Whether the suit is false and vexatious, if so, whether the defendants are entitled to recover special costs from the plaintiffs and to what extent? OPD.
(8) What is the effect of P.O.No,6 of the written statement? OPD
(9) Relief.
' The learned trial Court recorded oral as well as documentary evidence of the parties and on the conclusion of the trial, vide judgment, dated 7-12-2000 decreed the suit of the respondents. Against said judgment and decree of the learned trial Court, the present petitioners filed an appeal which when came up for hearing on 26-3-2001 before the learned District Judge, Toba Tek Singh, the appellants (before the learned District Judge) through their learned counsel made the following statement:-- "Stated that Mst. Haleeman widow of Ghulam Muhammad deceased was alive at the time of death of Ghulam Muhammad. She was entitled to inherit the suit-land and the learned trial Court has allocated the share in favour of Iftikhar Ahmad, etc. Illegally. Therefore, the case be sent back to the learned trial Court only for determination of the shares of the legal heirs of Ghulam Muhammad, etc. Inter se and the findings on other issues shall remain intact. The appeal and cross objections be decided accordingly."
' The respondents also got their following statement recorded through learned counsel:-- "I have heard the statement of learned counsel for the appellants and the same is accepted by me. I have no objection if the appeal and the cross objections are decided accordingly."
' After recording the above statements of the parties the learned District Judge, Toba Tek Singh decided the appeal in the following terms:-- "In view of statement of learned counsel for the parties the suit is sent back to the learned trial Court with the direction to determine the share of legal heirs of the deceased afresh in accordance with law. The findings of the learned trial Court on other issues shall remain intact. The appeal and cross objections are therefore, decided accordingly."
' On receipt of the file in terms of abovementioned order of the learned District Judge, dated 26-3- 2001 the learned trial Court after hearing the parties passed the following judgment on 3-5-2001:-- "The perusal of the record reveals that the instant case was sent back by the learned appellate Court with the direction to determine the share of the legal heirs of the deceased afresh in accordance with law. The findings on other issues remained intact. In view of this direction the following shares are hereby determined in accordance with law:--
(1) Mst. Haleema Bibi widow 4/32 share;
(2) Muhammad Iqbal son 14/32 share;
(3) Mst. Khurshid Bibi daughter 7/32 share;
(4) Mst. Zubaida Bibi daughter 7/32 share; ' Let this file be consigned to record room after its due compilation."
' The petitioners assailed the abovementioned judgment of the learned trial Court through an appeal which was heard by learned District Judge and was dismissed on 19-11-2001, hence this Civil Revision.
2. The following points require determination in this case:--
(i) Whether in the light of judgment, dated 26-3-2001 passed by learned District Judge, Toba Tek Singh on the basis of statements of the parties, the final judgment of the learned trial Court, dated 30-5-2001 was appealable before the learned District Judge?
(ii) Whether the remand order, dated 26-3-2001 of the learned District Judge, Toba Tek Singh can be challenged through present Civil Revision?
(iii) Whether the findings of Courts below declaring the respondentsas entitled to inherit the estate of Ghulam Muhammad deceased were based on correct appraisal of evidence and law?
(iv) Whether this Civil Revision has abated in view of the law declared by the Hon'ble Supreme Court of Pakistan in the case "Abdul Ghafoor and others v. Muhammad Shafi and others" (PLD 1985 SC 407)?
3. Learned counsel for the petitioners argued that judgment/order of the learned District Judge, dated 26-3-2001 was not subject to further appeal through regular second appeal, hence in terms of Order XLIII, Rule 1(u) C.P.C. The remand order despite the consent of the petitioners, can be assailed through this Civil Revision in terms of section 105, C.P.C. It is next argued that as Ghulam Muhammad admittedly died in the year, 1945 viz. Before the enforcement of West Pakistan Muslim Law (Shariat Application) Act, 1948, hence there is a presumption that prior to enforcement of the said Act, the parties were governed by custom and there is evidence on record to the effect that family of Ghulam Muhammad deceased was also governed by custom, whereby daughters were excluded from inheritance of their father in the presence of sons, hence mutation in question was rightly attested in favour of Muhammad Iqbal sole son of Ghulam Muhammad. To elaborate his this argument the learned counsel has referred to oral evidence of P. Ws. Who have in their statements deposed that family of Ghulam Muhammad was governed by custom whereby daughters were excluded from inheritance of their father in the presence of son, therefore, according to the learned counsel the findings of two Courts below were not only against law but also suffer from misreading as well as non reading of evidence.
4. On the other hand, learned counsel for the respondents has argued that neither any plea with regard to the fact that family of the parties was governed by custom or that mutation in dispute was attested under custom, has been raised in the written statement nor any issue to this effect was framed by the learned trial Court and that the oral evidence led by the petitioners on this point was neither admissible nor could be looked into at all because it is an established principle of law that the party is bound by the case set up in the pleadings and no evidence can be allowed to be produced on record regarding a fact not set up in the pleadings and in case any evidence to this effect has been produced the same cannot be looked into at all. It is next contended that it is an established principle of law that for proving that family of the parties at the relevant time was governed by custom cogent and strong evidence with regard to existence of such custom should have been made available on record and by mere oral evidence no findings in this respect could be recorded. The learned counsel further argues that despite theabovementioned legal infirmity in the pleadings of the petitioners, the respondents have placed on record copies of mutations (Exh.P2 and Exh.P-3) relating to the family of the parties were available whereby daughters of the deceased were given share under Shariat. It is next argued by the learned counsel that petitioners could easily place on record copy of to substantiate their plea. It is nextargued that in view of vague and evasive pleadings of the petitioners they were estopped from taking the plea of existence of custom in evidence. It has been finally contended by the learned counsel that through their statements, dated 26-3-2001 the petitioners in fact admitted the case of the respondents and consented to the remand of the case for limited purposes of determination of shares of the parties which were accordingly determined by the learned trial Court on 30-5-2001, therefore, the petitioners were estopped from challenging the remand order, dated 26-3-2001 whereby the judgment of the learned trial Court, dated 7-12-2001 on all the issues was maintained and as the petitioners failed to point out any illegality in the later findings of the learned trial Court, dated 30- 5-2001 therefore, their appeal was rightly dismissed by the learned appellate Court through the impugned judgment.
5. The abovementioned arguments of learned counsel for the parties have been considered in the context of evidence available on record.
6. So far as the question whether petitioners were legally entitled to challenge the findings of the learned trial Court recorded on 7-12-2000 is concerned, I feel that the order of remand, dated 26-3- 2001 was only for limited purposes of determining the shares of the parties, hence no findings on the remaining issues were recorded by the learned District Judge, as such the petitioners rightly challenged the findings of the learned trial Court, dated 7-12-2000 along with later findings of the learned trial Court, dated 30-5-2001 and their appeal was competent and was correctly decided by the learned appellate Court on merits on all the issues.
7. However, the question whether the family of Ghulam Muhammad deceased was governed by custom and thus mutation in dispute was rightly attested under custom as alleged by the petitioners, is concerned, the same needs adjudication in the light of pleadings, evidence as well as law on the subject. As argued by learned counsel for the respondents and rightly so the written statement of the petitioners not only contains vague and evasive denial of contents of the plaint, but also does not specifically contain the plea that Ghulam Muhammad deceased was governed by custom and thus his mutation of inheritance was rightly attested under customary law. It is an established principle of law that a plea of fact not pleaded in the pleading no case can be founded on such appeal and the evidence so recorded or brought on record has to be ignored. This was so declared by the Hon'ble Supreme Court of Pakistan in the case "Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad" (PLD 1976 SC 469). Therefore, I am not inclined to entertain the plea of the petitioners that as the family of Ghulam Muhammad deceased was governed by custom thus his mutation of inheritance was rightly attested under custom whereby his daughters namely Mst. Khurshid and Zubaida Bibi were excluded in view of the custom allegedly prevalent in his family at the time of his death. Even otherwise, there is no an iota of evidence on the record except the oral assertion of D.Ws. That family of Ghulam Muhammad deceased was governed by custom in the matters of inheritance and that there was any specific custom in vogue in his family excluding daughters from inheritance of their father in the presence of son. In the absence of any cogent and strong evidence, I feel that there is no force in the contention of learned counsel for the petitioners that as Ghulam Muhammad died before the enforcement of West Pakistan Muslim Law (Shariat Application), Act, 1948 hence there is a presumption that family of said Ghulam Muhammad was governed by custom in the matter of inheritance and by ignoring the plea of the petitioners the two Courts below have committed no illegality or irregularity while passing the impugned judgments.
8. Before parting with this judgment, I would also like to point out that after the judgment of Shariat Appellate Bench of the Hon'ble Supreme Court in Ishaq's case (PLD 1983 SC 273) declaring "custom no more rule of inheritance in Pakistan being repugnant to the injunction of Islam" and to implement the said judgment the Government of Punjab. D issued Ordinance No,XIII of 1983 i.e, Punjab Muslim Personal Law (Shariat) Act (Amendment) Ordinance and by virtue of section 2-A(c) even the decrees passed prior to the said judgment of the Hon'ble Supreme Court giving any right to any person on the basis of such custom, were declared as abated. The effect of said Ordinance was considered by the Hon'ble Supreme Court of Pakistan in Abdul Ghafoor's case (PLD 1985 SC 407) wherein after analyzing the said Ordinance in the light of judgment in ISHAQ's case (PLD 1983 SC 273) the Hon'ble Supreme Court while summing up the judgment held that custom was no more the rule of inheritance and any decree, judgment or order of any Court confering right on any person under custom or usage unless it was a past and closed transaction, was void. Since the petitioners have based their defence against the mutation in dispute by taking the plea of custom which they can neither take after the above referred judgment of the Hon'ble Supreme Court in ISHAQ's case nor the same is even otherwise, proved by the record, I am therefore, satisfied that this Civil Revisionhas no force and the same is accordingly dismissed, resultantly the judgments and decrees of Courts below are maintained.