' M. JAVED BUTTAR, J.---The petitioners, through this petition, are seeking leave to appeal against the judgment dated 25-5-2005 of a learned Single Judge of the Lahore High Court, whereby Civil Revision No,1102/1996 instituted by the petitioners, against the judgment and decree dated 16-10- 1996 passed by Additional District Judge, Dera Ghazi Khan, at Taunsa, decreeing the respondents' suit for declaration , was dismissed with no order as to costs.
2. On 25-3-1981 Mst. Taggi, the predecessor-in-interest of the respondents (hereinafter referred to as the plaintiff) instituted a suit for declaration against the petitioners. It was stated in the plaint that the last male owner of the suit-land (detailed in the plaint) was Ghulam Hassan. He was survived by a son, namely, Haider (predecessor-in-interest of the petitioners) and the plaintiff as daughter but, in the inheritance Mutation No,169 (Exh.P3) attested in the year 1909, she was excluded. It may be mentioned here that on the death of said Haider, her share in the estate of Haider, was mutated (Exh.P9) in her favour in the year 1951. The declaration was accordingly sought that she is co-owner in the estate of Ghulam Hassan to the extent of 1/3. The suit was contested by the petitioners raising the preliminary objections of limitation and estoppel. It was pleased that Ghulam Hassan was governed by agricultural custom in the matter of succession and in the presence of son the daughter did not inherit. At the same time, it was alleged that the plaintiff is not the daughter of Ghulam Hassan. Issues were framed evidence of the parties was recorded. Ahmad Bakhsh D.W.1, Allah Bakhsh D.W.2 and Zafar Iqbal D.W.3 stated that Ghulam Hassan was governed by Shariat. The last mentioned witness, being attorney of the petitioners, specifically stated that Sonharas (caste of the petitioners) followed Shariat in the matter of inheritance. The learned trial Court on 30-6-1991 after holding the plaintiff to be the daughter of Ghulam Hassan, dismissed the suit. On 2-9-1993, the First appeal was allowed and the case was remanded after framing issue 8- A as to whether Ghulam Hassan followed the rule of custom in the matters of inheritance and if so, what was that custom and further for the decision of question of limitation in the light of the judgment of this Court in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1. After remand, the trial Court again dismissed the suit on 13-9-1993. First Appeal filed by the respondents was allowed by the Additional District Judge, Dera' Ghazi Khan, at Taunsa Sharif, on 16-10-1996. The petitioners' revision petition was dismissed by a learned Single Judge of the High Court on 25-5-2005.
3. We have heard the learned counsel for the parties and have also seen the available record.
4. It is submitted by the learned counsel for the petitioners that Ghulam Hassan was governed by custom and under the custom the daughter stood excluded, hence mutation of his inheritance was correctly recorded in the year 1909 (Exh.P3), it was assailed for the first time by the plaintiff through the present suit for declaration on 25-3-1981, she remained silent for more than 70 years, therefore, the suit was hopelessly barred by time as there are several circumstances on the record indicating that the plaintiff was aware of the said mutation particularly when she had inherited from the state of Haider, as his sister (he died without any male issue) in the year 1951. Learned counsel has also referred to the provisions of Muslim Personal Law (Shariat) Act (Amendment)
Ordinance, No,XIII of 1983 to contend that Haider upon acquisition of the agricultural land in the year 1909, before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, became an absolute owner of the said land, it had become past and closed transaction, the possession has throughout remained with the petitioners and it shall be deemed as if the land in dispute had devolved on Hadier under Muslim Personal Law (Shariat) and on this ground also the plaintiff's suit was liable to be dismissed. The contentions have been opposed by the learned counsel for the respondents. It is submitted that Ghulam Hassan, was not governed by the custom, the parties were governed by Shariat, the plaintiff was illegally excluded, the mutation of inheritance of Ghulam Hassan (Exh.P3) was procured by concealing the fact that he had left behind a daughter as well i,e, plaintiff, Ordinance, No,XIII of 1983 has no applicability to the facts, of the present case because in the instant case Haider had not-acquired the land in dispute under custom and was able to secure it to the exclusion of the plaintiff, because of concealment of the' fact that Ghulam Hassan had left behind a daughter (plaintiff) as well. He has also argued that parties are governed by Shariat, the plaintiff became co-owner in the land in dispute, the moment Ghulam Hassan died and therefore, there is no question of limitation. He relies on the case of Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512 affirming the dictum of this Court in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1.
5. The findings recorded by all the Courts below that the plaintiff was proved rather admitted to be the daughter of Ghulam Hassan, has not been questioned before us. Similarly it was not questioned in the First appeal or in the Civil Revision, before the High Court. As regards custom, the parties are Sonharas by caste. Prior to the remand, as noted above, Ahmad Bakhsh, Allah Bakshsh and Zafar Iqbal as D:W.1 to D.W.3, stated that Ghulam Hassan was governed by Shariat and the last mentioned witness specifically stated that Sonharas followed Shariat in the matters of inheritance.
These very witnesses, after the remand, stated that Ghulam Hassan was governed by custom. Their assertion after remand is not believable. They contradicted themselves. It seems that after remand, they were ready to give false statement, just to make sure that plaintiff remains excluded from the inheritance of her father Ghulam Hassan. The statement of D.W.4 Allah Dawaya is irrelevant. He is not a Sonhara. He has no relationship in the said tribe. It is not explained that how he knew that Sonharas were governed by custom. As against the said evidence, the P. Ws.
Unanimously stated that Ghulam Hassan was governed by Shariat. It has been recorded by the learned Judge of the High Court in the impugned judgment that the petitioners did not produce Riwaj-e-Aam and the Riwaje-e-Aam produced by the respondents did not show that Sonharas were governed by custom in the matters of inheritance. There is nothing on the record available with us to show that these findings of the learned Judge of the High Court are incorrect. The first appellate Court, after considering the entire evidence produced by the parties, came to the conclusion that Ghulam Hassan was not governed by custom and was governed by Shariat. This finding of fact has been affirmed by the learned Judge of the High Court. The learned counsel for the petitioners has not been able to show any misreading or non-reading of evidence in the impugned judgment. We are of the view that two Courts below correctly concluded that Ghulam Hassan was governed by Shariat in the matters of inheritance. It may also be mentioned here that the photocopy of Mutation No,169 (Exh.P3), in regard to the inheritance of Ghulam Hassan in the year, 1909, produced by the learned counsel for the petitioners, during the course of arguments, has been perused by us. It does not show that the said mutation was decided under the customary law. It does not show that the Revenue Officer had the information that Ghulam Hassan had left behind a daughter as well namely Mst. Taggi, the plaintiff. It can, therefore, be reasonably concluded that the said mutation was procured in favour of Haider, to the exclusion of the plaintiff, by concealing the fact of existence of plaintiff. As regards issue of limitation, the plaintiff was proved to be the daughter of Ghulam Hassan who was admittedly the last owner of the land in dispute. It stood establish that he was governed by Shariat in the matters of inheritance. Under the Muslim Law of inheritance, the land automatically devolved on the plaintiff and her brother Haider, the moment Ghulam Hassan died. It is immaterial that her ownership was not recorded in the mutation of inheritance, which is not a title document. She was, therefore, a co-sharer in the land in dispute to the extent of her share since very beginning, thus there is no question of suit being barred by time. In Shahro and others v. Mst. Fatima and others (supra), last male owner having died in 1936, his inheritance mutation was attested in 1937, whereby his daughters and widow were deprived of their share of inheritance while his nephews got his whole property claiming that their tribe was governed by custom whereby females were excluded from inheritance. Trial Court dismissed plaintiff's claim while appellate Court and High Court decreed their suit on the ground that tribe of plaintiffs was governed by Muhammadan Law and not by custom and that two daughters and widow were entitled to succeed to their respective shares of inheritance. The main question, however, for determination was that of limitation and adverse possession for more than 12 years. It was held that:- "It has been held in several decisions by this Court and is now well-settled that possession of one co-sharer or co-owner is for benefits of all other co-sharers and the mere fact that mutations had been attested in favour of some of the co-sharers would not extinguish the title of the other co- sharers. It has also been held, time and again, that entries in the Revenue Record of rights do not create or extinguish title but are a mere evidence thereof. In Ghulam Ali's case (supra) it had been held that adverse entries in the Revenue Record and non-participation in the profits in the property would not amount to ouster of the co-sharers as wrong mutations confer no right in property, the Revenue Record being maintained only have the purpose of ensuring realization of land revenue..
' In the present case, the male heirs of Mitha tried to deprive the female heirs of their right to inherit the lands left by deceased Mitha. The female heirs of Mitha were his widow and daughters. In Ghualm Ali's case (supra) it had been held that a brother could not legally claim adverse possession against his sister and much less ouster. It was further held that an heir in possession has to be considered to be in constructive possession of the property on behalf of the heirs in spite of his exclusive possession and the possession of the brothers would be taken to be the possession of their sisters, unless there is an express repudiation of the claims of the sisters by the brothers".
' The above judgment is on all fours to the present case.
6. As regards the last contention of the learned counsel for the petitioners that the matter has become past and closed in view of the provisions of above said Ordinance No,XIII of 1983, suffice it to say, that it is applicable only to those male owners who have or had acquired any agricultural land under custom from a Muslim, whereas in the present case, Haider had inherited land under Muslim Shairat and not under custom, therefore, the said Ordinance is not applicable to the facts of the present case at all. The plaintiff was excluded from her share in the mutation proceedings (Exh.P3) through concealment of fact that Ghulam Hassan had left behind a daughter as well.
In view of the above mentioned, we find no merit in this petition, which is dismissed with costs.
Leave refused.