' MUHAMMAD SAIR ALI, J.---Through this civil revision petitioner, Mst. Zaidan daughter of Jahana has challenged judgment and decree dated 21-9-1985 passed by learned Civil Judge, Jhang, partly decreeing the suit of respondent Mst. Bhakkan, and judgment and decree dated 30-4-1988, of learned Additional District Judge, Jhang, partly accepting appeal filed by Mst. Zaidan against the above said judgment and decree and, thus, in fact modifying the decree to the extent of shares.
Feeling aggrieved of the shares so allocated by the learned Additional District Jhang, Mst. Zaidan has called in question the determination of shares as done by the learned Additional District Judge in the impugned judgment and decree.
2. On 26-6-1979, Mst. Bhakan wife of Bahadur, (respondent No,1) through her real son and her special attorney, filed suit against the present petitioner, Mst. Zaidan, Mst. Sattan and Fattan daughter of Jahana and Ghulam Muhammad. Subsequently, on death of Mst. Sattan and Mst.
Fattan, their legal heirs were brought on record. The suit filed by respondent No,1 was for declaration and perpetual injunction whereby she claimed to be the owner in possession of land measuring 24 Kanals through inheritance from her deceased father Jahana. In the suit she challenged following mutations:--
(i) Mutation No,169 dated 15-12-1932 recorded upon death of Jahana deceased;
(ii) Mutation No,201 dated 4-6-1935 whereby share of Roshnai widow of Jahana was transferred to petitioner upon remarriage of Roshnai;
(iii) Mutation No,363 dated 19-11-1960 whereby share of Allah Jawai, another widow of Jahana was transferred to her daughters, namely, Bhakkan, Sattan and Fattan;
(iv) Mutation No,4 dated 3-6-1964 whereby share of Sabhrai daughter of Jahana and his third wife Roshnai (not the first wife Roshnai) was transferred to her husband, Ghulam Muhammad and other sisters and others upon death of Sobhrai; and
(v) Mutation No,66 dated 16-8-1977 by which Ghulam Muhammad (husband of Sobhrai) sold his share inherited from Sabhrai to Mst. Zaidan, petitioner.
2. Jahana died on 1932 leaving the following as heirs:--
(i) Roshnai, first widow;
(ii) Allah Jawai, second
(iii) widow, Roshnai third widow,
(iv) Mst. Zaidan, i.e,, daughter of Jahana deceased and his first wife Mst. Roshnai,
(v) Mst. Sattan, Mst. Fattan and Mst. Bhakkan, (respondents), i.e,, three daughters of deceased Jahana from Allah Jawai, the second wife,
(vi) Mst. Sobhrai daughter of deceased Jahana from his third wife; also named Roshnai.
3. Consequent upon death of Jahana on 28-11-1932 inheritance was recorded through Mutation No,169 dated 15-12-1932 (the first mutation). In the suit was contended that this mutation was incorrectly recorded without notice all to the legal heirs, hence the purported illegality.
3(a).Mst. Roshnai, the first wife of deceased Jahana, remarried and thus lost the right to retain share held by her as limited owner. This share was according to the custom mutated in favour of petitioner Zaidan through Intekal No, 201 dated 4-6-1935 (the second mutation). In this manner petitioner Zaidan got the initial 7/40 share plus 1/16 share of her mother Roshnai making the total as 19/80. This mutation was also challenged by Mst. Bhakkan in the suit.
3(b).Mst. Allah Jawai, the second widow of deceased Jahana, died on 12-9-1959 wherefor her share was also transferred to her three daughters, Mst. Bhakkan, Mst. Sattan and Mst. Fattan, to the extent of their respective 1/40 share through Mutation No, 363 dated 19-11-1960 (third mutation). This mutation was also challenged by Mst. Bhakkan in her suit.
3(c). Mst. Sabhrai daughter of Jahana and his third widow (another Roshnai) died issueless in 1962, whereupon her 7/40 share equally devolved upon her four stepsisters, i.e,, the petitioner and other three female respondents, Bhakkan, Fattan and Sattan to the extent of 7/320 each through Mutation No,4 dated 3-6-1964 (forth mutation). Her husband (of Sabhrai) namely Ghulam Muhammad (defendant No,2 in the plaint) also got his share from inheritance of Sabhrai through this mutation. This mutation was also challenged by Mst. Bhakkan in her suit. Mst. Bhakkan, plaintiff (respondent No,1) claimed to have thus become owner in possession of share to the extent of 209/960 (para.10 of the plaint).
3(d). Above referred Ghulam Muhammad sold his share, obtained from inheritance of his deceased wife Sabhrai, to petitioner Zaidan per registered Sale-deed No,147 dated 17-2-1977 and this transaction of sale was incorporated in Mutation No,66 dated 16-8-1977 (fifth mutation), which was also challenged in the suit by respondent No, 1 .
4. Respondent No,1, Mst. Bhakkan, filed her suit on 26-6-1979 by stating that she discovered only after consolidation proceedings held about a year prior to the suit (which means in 1978) that all the above referred mutations had been incorrectly recorded and she in fact was owner of 209/960 share purportedly equivalent to 24 Kanals in the estate of deceased Jahana, hence the suit seeking decree for declaration against all the mutations and for re-evaluation of shares.
5. Contesting written statements were filed by all the defendants including the petitioner whereby they termed the pleas of the respondent /plaintiff as incorrect and false. Some preliminary objections were also raised.
5(a) Issues were framed by the learned trial Court. Parties led their evidence. The learner Civil Judge partly decreed the suit in favour of plaintiff Bhakkan and against the defendants, including the petitioner, to the extent of 41/240 share in the entire estate of Jahana deceased as per exhibit P.7 (Register Haqdaran Zamin of year 1928-29). This decree dated 21-9-1985 was challenged in appeal by the petitioner Mst. Zaidan. The learned Additional District Judge, Jhang, for the reasons contained in the judgment, recalculated the shares of the parties in para.12 of the judgment and by modifying the decree of the learned Civil Judge, granted 1107/6480 share equivalent to 10 Kanals and 17 Marlas to Mst. Bhakan and 1377/6480 equivalent to 23 Kanals and 9 Marlas to the petitioner Zaidan. It is, thus, against the calculation of shares by both the learned Courts below that petitioner Zaidan felt aggrieved and filed the present civil revision.
6. The learned Additional District Judge, in para-12 of the impugned judgment made the following allocation of ;hares to the parties:-- Names of HeirsOn termination of limited estate (1/3rd share) of Mst.
AllahOn termination of limited estate of Mst. ZaidanOn termination of limited estate (1/3rd share) of Mst.
SabhraiOn the death of Mst.
Sabhraitotal shareArea of land K -M from motherfrom deceasedfrom motherfrom deceasedfrom motherfrom deceased Mst.
Sattan1/44 2/45 1/44 2/45 1/44 2/451/60 =1107/648018- 17 Mst.
Fateh1/44 2/45 1/44 2/45 1/44 2/451/60 =1107/648018- 17 Mst.
Bakhan1/44 2/45 1/44 2/45 1/44 2/451/60 =1107/648018- 17 Mst Zaidan1/48 2/45 1/48 2/45 1/48 2/451/60 =1377/648023- 09 Mst.
Sabhrai2/45 2/45 2/45 Sardara etc.5/72 5/72 5/72 157223- 00 Ghulam Mohd.1/15 1/1507- 07
7. The learned counsel for the petitioner contends that the learned Courts below fell in legal error by calculating devolution of shares to three widows of deceased Jahana under Muhammadan Law, although at that time customary law was prevalent, where under, the three widows were entitled to the extent of 1/3rd shares as limited owner of the estate. And that it would be on termination of limited estate by operation of law or otherwise on remarriage that 1/3rd would devolve upon the legal heirs. And that this 1/3rd share should have been allocated as limited owner to Mst. Roshnai (the first wife of deceased Jahana and mother of the petitioner) and should have been given to the petitioner upon remarriage of her mother. It is further contended that the petitioner through 5th mutation purchases 20 Kanals of land through registered sale-deed from Ghulam Muhammad on 16-8-1973 and said Ghulam Muhammad had come into ownership and possession of the said land upon death of Sabhrai as per the facts stated above. The petitioner being bona fide purchaser could not have been disturbed or deprived of the land purchased by her.
' Contrarily, the learned counsel for the respondents supported the impugned judgment and decree of the learned Additional District Judge by contending that the learned Additional District Judge through a well-reasoned judgment had redetermined the shares in accordance with law.
8. I have considered the submissions of the learned counsel for the parties and have also examined the record placed with the present civil revision by the petitioner. The main thrust of the case of the petitioner is that under the Customary Law, the entire estate of Jahana deceased should have been transferred as limited owners in equal shares to his three widows to the extent of 1/3rd each. And further that upon remarriage of her mother Roshnai (the first wife of Jahana deceased), this 1/3rd should have been transferred as limited owner to her upon termination of limited ownership in 1962 by enforcement of Muslim (Personal Law) Shariat Application Act, 1962.
Further contention as reached above is that 20 Kanals of land was properly and duly transferred to Ghulam Muhammad through mutation, which was purchased by the petitioner, who was entitled to protection of law being the bona fide purchaser without notice for consideration of the mutation of sale entered in her favour.
9. I have examined the written statement filed by the petitioner, memo. Of appeal as well as the memo. Of present civil revision. The case now raised by the petitioner, for the first time, while arguing the present civil revision, was neither pleaded by the petitioner in her written statement nor in memo. Of appeal nor in the grounds of the present civil revision. The petitioner Mst. Zaidan was transferred the land through second Mutation No,201 dated 4-6-1935. This transfer to her was upon termination of the limited estate to Mst. Roshnai. According to Exh.P.2 (Mutation No,201) dated 4-6- 1935, all share of Roshnai as limited owner was transferred to petitioner Mst. Zaidan and was accepted by her without any challenge. The ground being now urged was not the case of the petitioner any more. Learned counsel for the petitioner has himself argued that upon termination of the limited estate in 1962, the entire share should have reverted back to the legal heirs of deceased Jahana. Be that as it may, no incorrect or erroneous transfer of share was alleged by the petitioner in her joint written statement along with others or in her memo. Or in grounds of revision.
Furthermore, petitioner also failed to particularize any of her pleadings in the written statement, which were too general to be specific as per the mandatory requirements of the provisions of C.P.C.
Similarly, petitioner also failed to allege, plead or assert in the written statement, grounds of appeal or in the grounds of present civil revision that she was entitled to protection as bona fide purchaser without notice for consideration of the mutation of sale entered in her favour upon purchase from Ghulam Muhammad. Fourth and fifth mutations, as narrated above, were entered on the basis of share transferred to Ghulam Muhammad and from Ghulam Muhammad to petitioner. These mutations do not specify the land transferred to Ghulam Muhammad or from Ghulam Muhammad to the petitioner. Even otherwise, the learned Additional District Judge very competently and elaborately, on the basis of detailed reasons, Came to the conclusion that allocation of share of Ghulam Muhammad from Sabhrai was illegal and was incorrectly done. This has not been rebutted by the learned counsel for the petitioner except for claiming protection as bona fide purchaser.
10. Under the circumstances re-counted above, this suit involved calculation of shares of co- owners upon termination of limited estate through deceased widows of Jahana, whereof, no such protection could either be claimed or advanced by the petitioner as against other co-owners.
11. Learned counsel for the petitioner has read out the statements of P.W.1, P.W.2 and D.W.2 to substantiate his case by stating that shares as allocated by the learned Additional District Judge to the parties were incorrect. The most relevant of the above statements is the statement of Mst.
Zaidan, deposing as P.W.2. Even while, appearing as a witness, Mst. Zaidan did not particularize either the extent of share or quantum of land claimed by her or as to how shares should have been calculated.
12. Under, these circumstances, this Court cannot enter into exercise of recalculating the shares of all the parties, when the same had been very properly and competently been done by the learned Additional District Judge through a well reasoned judgment. In view thereof, I do not find any merit in the present civil revision, which is dismissed with no order as to costs.