' SYED JAMSHED ALI, J.---The concurrent judgments and decrees of the two Courts have been assailed in this revision petition which arises out of the following circumstances.
2. On the death of Mst. Fazeelat alias Feiji, Mutation No.26 was attested on 27-9-1966, according to which, her estate was transferred in favour of Mst. Salaman, daughter (1/2 share) and Mst. Meiji, sister (1/2 share). The respondents-plaintiffs, claiming to be the collateral of Niaz Muhammad, husband of Mst. Fazeelat, filed an appeal against the said mutation which was dismissed on 18-11- 1974. Their appeal and revision petition were dismissed on 22-5-1975 and 25-11-1979. On 24-2-1980 they filed a suit for declaration. Their case was that Mst. Fazeelat Bibi was the limited estate holder and as collaterals- of Niaz Muhammad they were entitled to inherit the estate of Niaz Muhammad along with the petitioners.
3. The suit was contested and vide judgment dated 5-2-1985, it was dismissed. On the appeal of the respondents, the suit was remanded vide judgment dated 28-10-1989. After the order of remand, the suit was decreed on 16-6-1990 and the appeal of the petitioners was dismissed on 4- 6-1992. At the time of admission of this revision petition on 18-4-1993, it was not disputed that the plaintiffs-respondents were the near collaterals of Niaz Muhammad. However, the revision petition was admitted to consider the questions whether Mst. Fazeelat Bibi was a limited estate holder and whether the suit filed by the plaintiffs-respondents was barred by time?
4. On the first question the submission of the learned counsel for the petitioners is that the learned two Courts decided the case on the basis only of an assumption that Mst. Fazeelat Bibi was a limited estate holder. According to him, there was no evidence in the form of any rehabilitation record, Jamabandi, Fard-e-Haqiat or Register R.L-II to demonstrate that the land held by Mst.
Fazeelat Bibi in Pakistan was allotted to her in lieu of the land held by her husband Niaz Muhammad in India. He maintains that the oral evidence produced in, the case as to the status of Mst. Fazeelat Bibi as a limited estate holder was wholly untrustworthy. On the second question his submission is that initial allotment was made in favour of Mst. Fazeelat Bibi as full owner and if at all the respondents had any grievance, they could have filed an application within one year before the competent authority under the provisions of the West Pakistan Muslim Personal Law (Shariat Application) (Removal of Difficulties) Act (No.XXV), 1975. According to him, the question of limitation being a question of law, even it was given up before the trial Court, was allowed to be raised by the learned first appellate Court but was wrongly repelled. Reliance was placed on Gobardhan Das v.
Dau Dayal (AIR 1932 Allahabad 273), Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187) and Hakim Muhammad Buta and another v. Habib Ahmad and others (PLD 1985 SC 153).
5. On the other hand, the learned counsel for the respondents submits that relationship of the plaintiffs-respondents with Niaz Muhammad deceased having been admitted, the suit of the plaintiffs/respondents was rightly decreed. He relied on the disputed mutation, Exh.P.2., Jamabandi, Exh.P.3 and the pedigree-table, Exh.P.7 in which Mst. Fazeelat is recorded as widow of Niaz Muhammad. He submits that the oral evidence produced in the case read with the documentary evidence clearly established that Mst. Fazeelat Bibi was in possession of the estate of Niaz Muhammad. As to the question of limitation, his contention is that having been given up before the learned trial Court, it could not be allowed to be raised before this Court. According to him, it was binding on the petitioner. Reliance was placed on Dr. Ansar Hassan Rizvi v. Syed Mazahir Hussain Zaidi and 3 others (1971 SCMR 634). His other submission is that question of limitation was mixed question of law and fact and, therefore, for this reason as well this plea could not be entertained.
He vehemently submits that the matter stands concluded by concurrent findings and, therefore, no interference is called for.
6. The submissions made by the learned counsel for the parties have been considered. The learned two Courts decided the case on the assumption that Mst. Fazeelat Bibi was a limited estate holder without examining the evidence produced in the case. Since it is an old matter, I thought it proper to myself decide the question in the light of the evidence produced by the parties in the case.
7. Rasheed Ali Khan, P.W.1 a co-villager of the parties in India, was examined as P.W.1. He stated that Niaz Muhammad died in India without leaving a male issue and the property was mutated in the name of Mst. Fazeelat Bibi. Muhammad Yaqoob was examined as P.W.2, he was atm) a co-villager in India and stated that on the death of Niaz Muhammad his property was transferred as a limited owner in fav6ur of Mst. Fazeelat Bibi, Jamshed Ali, one of the plaintiffs, appeared to support his own case. In the documentary evidence order dated 25-11-1979 of the Board of Revenue was produced as P.1, Mutation No.55, and Jamabandi for the year 1964-65 were produced as Exh.P.2 and P.3 respectively. Mutation No.111 in respect of inheritance of one Mst. Faizi was produced as Exh.P.4. The plaint in the suit earlier filed by petitioners Nos.2 and 4 and two others against Mst. Kaneez and Mst. Meiji was produced as Exh.P.4. This suit was decreed on the basis of compromise of the parties and the order was produced as Exh.P.6, the pedigree-table was produced as Exh.P.7.
8. On behalf of the petitioners, nine witnesses were examined including Mst. Meiji and Mst. Salaman.
All of them stated that the plaintiffs/respondents were not related to Niaz Muhammad. However, since relationship of Niaz Muhammad with the respondents was conceded by the learned counsel for the petitioners at the time of admission of this revision petition, I do not consider it necessary to examine their statements. It may however, be noted that none of them asserted that Mst. Fazeelat was full owner of the property or held landed property in her own right in India. Orders dated 18-11- 1974 of the Assistant Commissioner in two separate appeals, one relating to estate of Khan Muhammad and the other relating to the estate of Niaz Muhammad, were produced as Exh.D.1 and D.2. The orders of the Additional Commissioner and the learned Member of Revenue were produced as Exhs.D.3 and Exh.D.4, while copy of the order dated 25-11-1979 of the learned MBR was produced as Exh.D.5. Khasra Girdawari for Kharif 1969 to Kharif 1976 was produced as Exh.D.6. The orders passed by the Revenue Authorities did not determine the question whether Mst. Fazeelat was a full owner or a limited estate holder.
9. P.W.1 and P.W.2, the co-villagers in India clearly stated that Mst. Fazeelat Bibi was holding the estate of Niaz Muhammad as a limited owner. In the mutation Exh.P.2 and in the Jamabandi, ExhP.3, she is recorded as widow of Niaz Muhammad. The entry in the pedigree-table (Exh.P.7) below one Niaz Muhammad. Mst. Fazeelat Bibi was recorded as {{URDU TEXT}} This entry standing alone may not have been sufficient to establish that she was holding a limited estate but in view of the statements of P.W.1 and P.W.2, the said entry stands fully corroborated that she was a limited estate holder. This conclusion is inevitable in view of the fact that no evidence in rebuttal was produced by the petitioners. It has not been the case of the petitioners that Mst. Fazeelat Bibi was holding property in her own right in India. The initial burden having been discharged by the plaintiffs/ respondents, it was for the petitioners to disprove it.
10. The expression {{URDU TEXT}}came under consideration of this Court in Muhammad Bibi v.
Ghulam Muhammad and others (PLD 1978 Lahore 483) and it was held that it did not denote anything other than that the widow was holding a life estate. In Exh.P.7 Khan Muhammad was shown as a real brother of Niaz Muhammad but on his (Niaz Muhammad's) death the estate of Niaz Muhammad happened to come into possession of his widow Mst. Fazeelat Bibi. This could not have been possible except under custom. It may also be noted that before the learned first appellate Court the stance of the petitioners was that Mst. Fazeelat Bibi was a limited estate holder and the suit should have been filed within one year of the promulgation of Act No.XXV of 1975. This admission has a material bearing.
11. As far as the contention of the learned counsel for the petitioners that the suit was barred by time by virtue of the provisions of Act No.XXV of 1975 is concerned, it has no merit either because on termination of life estate of Mst. Fazeelat Bibi, the plaintiffs/respondents as collaterals of Niaz Muhammad, became co-sharers. It may also be noted that section 2 of Act No.XXV of 1975 contemplated that a refugee female allottee was erroneously treated as a full owner but in this case there was no such prior determination. Section 3 of the said Act permitted filing of a fresh suit within one year and in this case the suit was filed within one year from the order dated 25-11-1979 of the learned Member Board of Revenue. I am also of the view that section 3 of the said Act did not alter the law of limitation in case of a suit by a co-sharer.
12. For what has been stated above, I find no merit in this petition which is, accordingly, dismissed.