Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court is directed against the judgment dated 17.8.1999 passed by Lahore High Court, Lahore in a civil revision arising out of a civil suit.
2. The suit involving the dispute of inheritance, filed by the appellants, was decreed by the Court of first instance, vide judgment dated 20.11.1997. The decree was further maintained by a learned Additional District Judge in appeal and by the High Court in civil revision filed by the appellants. The leave was granted in this appeal vide order dated 27.7.2000 to consider the following questions:- (1)Whether mutation dated 4.10.1043 could be reviewed by the Collector in 1995 when the question of absolute ownership of Mst. Daulan had twice been determined in earlier rounds of litigation, which had attained finality?
(2)Whether in the circumstances the Courts in the final round of litigation were obliged to follow the law laid down in Abdul Ghafoor vs. Muhammad Shafi (PLD 1985 SC 407) and Mst. Farida and two others vs. Rehmatullah and others (1991 SC 213)
(3) Whether the petitioners, who failed to establish the ancestral nature of the property, have any right of succession in it under Sharia?"
3. The property, subject-matter of the dispute was agriculture land ,which was situated in the revenue estate of Mohinwala District Hafizabad. The land was originally owned by Aait Muhammad father of Mst. Daulan and Khushi Muhammad her cousin who died issueless and on their death the land was mutated in the name of Mst. Allah Jawai mother of Mst. Daulan and on death of Mst. Allah Jawai, Mst. Daulan became the owner of the land vide Mutation No, 45 dated 4:10.1943. The predecessor-in-interest of the appellants claiming themselves collaterals of Aait Muhammad and Khushi Muhammad succeeded in getting the Mutation No, 61 dated 30.4.1947 sanctioned whereupon Mst. Daulan filed a suit seeking declaration that she was full owner of the land and the mutation in question was illegal. The suit was decreed by the learned Civil Judge at Hafizabad, vide judgment dated 12.8.1948 and the appeal preferred by the predecessor-in-interest of the appellants was dismissed by the District Judge vide judgment dated 11.4.1940. In pursuance thereto, a Mutation No, 69 dated 27.6.1950 was attested in the name of Mst. Daulan which was subsequently challenged by one Muhammad on the revenue side but he remained unsuccessful. The predecessor-in-interest of the appellants then filed a fresh suit raising the same dispute and the learned Civil Judge, Hafizabad vide judgment dated 19.1.1966 dismissed the suit. The appeal preferred by them was allowed by a learned Additional District Judge, Gujranwala vide judgment dated 11.2.1967 and case was remanded to the trial Court for decision of the suit afresh but in the post remand proceedings, the suit was again dismissed by the trial Judge vide judgment dated 16.4.1968. The appeal preferred by the appellants against dismissal of suit was also dismissed by a learned Additional District Judge, Gurjanwala vide judgment dated 1.3.1970 and this judgment as well as the judgment in the earlier suit, having been not further challenged attained finality. The appellants then after lapse of a period of more than two decades moved an application before the Collector, Hafizabad for review of Mutation No, 45 dated 30.4.1947 and the Collector, vide order dated 27.3.1995 reviewed the mutation as a result of which three Mutations Bearing Nos, 63, 64 and 65 were attested. Mst. Daulan respondent therein filed a suit seeking declaration that the order dated 27.3.1995 passed by the Collector was illegal and ineffective to her rights. The appellants contested the suit and the main question raised for adjudication and consideration was in respect of the status of Mst. Daulan as to whether a full owner of the land or a limited owner and if she was a limited owner, the suit property on enforcement of West Pakistan Muslim Personal Law. (Shariat)
Application Act, 1962 as amended by West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act, 1983 (Act XIII of 1983), would not devolve upon the legal heirs of Aait Muhammad and Khushi Muhammad in accordance with law of Sharia.
4. The learned counsel for the appellants has contended that all the three Courts were misled to understand the proposition of law involved in the litigation in respect of right of inheritance of the appellants in the property in accordance with law of sharia. The Courts instead of attending the real question confused the matter with technicalities of procedural law and thereby deprived the appellants from their legitimate right of succession in the property. The learned counsel argued that the right of inheritance is not extinguished by afflux of time and the law of limitation or principal of res judicata would not operate against the right of succession of the appellants under law of Shariah, therefore, the earlier judgments in the civil suits rendered by the Civil Court would not debar them from claiming the right of succession as legal heirs of the last male owner on the termination of limited interest of Mst. Daulan under West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962 as amended by Act XIII of 1983. The argument was that the suit property having devolved upon the legal heirs of Aait Muhammad and Khushi Muhammad, the Collector in consequence thereto, could competently review the mutation and while placing reliance on the short pedigreetable prepared by the Patwari on the mutation and also the entries in the revenue record made on the basis of mutation in question contended that the claim of appellants to the succession of Aait Muhammad and Khushi Muhammad the last made owners of the land could not be disputed. The learned counsel for the respondents on the other hand seriously challenging the correctness of the pedigree table prepared by the Patwari on the mutation and the genuineness of the claim of appellants to be the collaterals of the last male owner, contended that except the disputed mutation there was no independent evidence, oral or documentary, to suggest that appellants were collaterals of the last male owners and since their claim was earlier rejected twice by the Civil Court, therefore, the fresh suit on same subject, was not maintainable.
5. The limited estates in respect of immovable property held by the Muslim female under the customary law being governed by West Pakistan Muslim Personal Law Shariat Application Act,, 1962 stood terminated by virtue of Section 3 of the Act, and on the insertion of Section 2-A in the ibid Act by Ordinance No, XIII of 1983, the position would further be changed. Section 2, 2-A and 3 of Act V of 1962, provided as under:-- "2. Application of the Muslim Personal Law.-- Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gift, religious usages or institutions including Waqfs, trusts and trust properties, the yule of decision, subject to the provisions of any enactment for the time being in force, shall be the Mdslim Personal Law (Shariat) in cases where the parties are Muslims."
3. Termination of Limited estates under Customary Law. The limited estates in respect of immovable property held by Muslim females under the Customary Law are hereby terminated: Provided that nothing herein contained shall apply to any such estate saved by any enactment repealed by this Act and the estates so excepted shall continue to be governed by that enactment, notwithstanding its repeal by this Act."
Section 2A inserted in the said Act by Ordinance No, XIII of 1983 is read as under:-- '2-A. Succession prior to Act IX of 1948.--Notwithstanding anything to the contrary contained in Section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim--
(a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat);
(b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act;
(c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith: Provided that nothing therein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees."
6. There can be no cavil to the legal position that notwithstanding any judgment, decree or order on termination of limited interest, the property would be reverted to the legal heirs of the last male owner and his succession would be deemed to have opened on his death. The estate of Muslim deceased thus would be deemed to have devolved on all those persons who were his heirs according to the law of sharia on the date of his death and in case of the death of any of them, his share was to be devolved on his heirs. The matter involving the interpretation of the above referred provision of law with reference to the succession of a deceased muslim was discussed in Mst.
Ghulam Janat and others versus Ghulam Janat through Legal Heirs and others (2003 SCM R 362), Ismail and another versus Ghulam Qadir and others (1990 SCM R 1667) and Muhammad Yousaf through Legal Heirs and 2 others versus Mst. Karam Khatoon through Legal Heirs and 2 others (2003 SCM R 1535) and it was consistently held that the above provision of law would operate accordingly. The learned counsel for the respondent without taking any exception to the above legal position conceded that on termination of limited interest, the property of a deceased Muslim would definitely devolve upon his legal heirs according to the law of Sharia and his succession would be deemed to have been opened on his death but argued that in the present case, no convincing evidence was brought on record to establish that either Mst. Daulan was limited owner or the parties were connected with common ancestors. It may be seen that without determination of the controversial question regarding the claim of the appellants of their relationship with the last male owners, it would be a futile exercise to go into the question whether Mst. Daulan was limited owner or she was full owner of land. The appellants have not brought any evidence on record to prove their relationship with the last male owner and they have also not been able to show us that the question of relationship was not conclusively decided by Civil Court in the earlier litigation or that the previous judgment of the Civil Court were on the different subject. Be that as it may, the law is that the revenue authorities cannot sit over the judgments of Civil Court and the Collector neither could change the status of Mst. Daulan from full owner to that of a limited owner not it was within his domain to hold that she had common ancestors with the appellants. In short B the question regarding the relationship of the appellants with last male owners and the status of Mst. Daulan' as a limited owner or full owner of land, having been twice decided byThe Civil Court, could not be reopened by the Collector in his limited jurisdiction under the revenue law. The appellants without producing any evidence in support of their claim, made an attempt to establish their right on the basis of oral assertion and we having perused the record have not been able to find out any defect of misreading or non reading of evidence in the concurrent finding of three Courts on the precise question raised by the appellants.
7. There is no cavil to the proposition of law that on the enforcement of Muslim Personal Law (Shariat) Application Act, 1962 as amended by Act XIII of 1983; the property of last male owner subject-matter of limited interest would be deemed to have devolved upon his legal heirs on his death, and the right of succession would not be defeated by the law of limitation or the principle of res-judicata as no law or judgment can override the law of Sharia which is superior law. However, the right of inheritance neither can.be created nor extinguished merely on the basis of oral assertion and in case of any dispute of the relationship of the claimant with the deceased owner, the person asserting such claim must prove it through the positive evidence. The question of relationship is purely a question of fact which would necessarily be decided on the basis of evidence and the burden of proving the relationship for the purpose of inheritance would be on the person who claimed right of succession. In the present case, the appellants without bringing any convincing evidence on record, in support of their claim of being collaterals of the last male owners, asserted their right in their property on the basis of the disputed mutation and the subsequent entries made in the revenue record. The perusal of evidence would evidently show that the appellants have not been able to discharge the heavy onus of proving their relationship with the last male owners. We find that the High Court having considered the controversial question relating to the existence of relationship of the predecessor-in-interest of the appellants with last male owners of the suit land in detail affirmed the concurrent finding of the two Courts and held that the claim of succession of the predecessor-in-interest of the appellants to the estate of Aait Muhammad and Khushi Muhammad was without any foundation. The learned counsel for the appellants made an attempt to convince us that in the peculiar circumstances of the ease, the existence of relationship of the appellants with last male owners, would be presumed and argued that the entries in the revenue record made on the basis of disputed mutation having been not disputed by the respondents at any stage of the proceedings, would be considered a sufficient proof of the genuineness of the claim of the appellants and notwithstanding the non availability of any other evidence, a legitimate presumption could be raised that the appellants and last male owners were connected with common ancestors. We are afraid, no judicial notice can be taken of a fact which was not proved on record through evidence and are of the considered view that in presence of the two judgments of the Civil Court on the same subject, the Collector in exercise of his powers under the revenue law could not interfere in the matter and undo the effect of said judgments and decrees passed by the Civil Court. The right to the succession of a deceased Muslim on the termination of limited interest would definitely devolve upon his legal heirs but to claim the right of succession, it would be essential to establish firstly that the property subject- matter of dispute involved limited interest and secondly, the claimants were the legal heirs of the last male owner and without proving the above basic question through the direct and legal evidence, the right of succession in the property could not be claimed. The appellants, except the disputed mutation have not been able to bring on record any evidence, oral or documentary, but the mutation in question or the subsequent revenue record prepared on the basis of said mutation could not be considered as an evidence of existence of relationship between the appellants and the last male owner of land. The learned counsel has not been able to show us any jurisdictional error or legal defect in the judgment of the High Court or any misreading or non-reading of the evidence to justify interference in the concurrent finding of three Courts on a question of fact.
8. We having perused the record, with the assistance of learned counsel for the parties, have not been able to find out any substance in the claim of appellants and consequently, dismiss this appeal with no order as to costs.