'MAULVI ANWARUL HAQ, J.--- On 2-4-1986 the respondents filed a suit against the appellants. I may note here that Mst. Misri appellant No,1 died issueless during the pendency of this R.S.A. And the respondents are stated to be her L.Rs, Karam Ali appellant No,2 also died and is represented by his L.Rs, brought on record. According to the plaint, the last male owner of the suit-land, mentioned in the plaint, was Nagina son of Alia who died in village Sonkra, Tehsil and District Karnal before the independence of the country. The land was mutated in favour of his widow Mst. Misri as a limited owner. She migrated to Pakistan and filed a claim in respect of the said land. A pedigree-table was drawn in para.4 of the plaint according to which the respondents are the successors of Faiz Ali the brother of Alia. According to them, the widow inherited 1/4th share and the residue came to them. It was complained that the said widow had transferred the land vide a decree, dated 19-3-1986 in favour of the said Karam Ali deceased defendant. A declaration was accordingly sought that they are the co-owners in the suit-land to the extent of 3/4th share and the said decree is ineffective upon their rights. The widow and the said vendee filed a joint written statement on 2-6-1986. They objected that the said decree ought to have been challenged under section 12(2), C.P.C. On merits, it was stated that the widow was herself the owner of the land against which the suit-land was transferred. The pedgree-table was also stated to be incorrect. Following issues were framed by the learned trial Court:--
(1) Whether the suit is not maintainable in view of preliminary objection No,1 of the written statement? OPD
(2) Whether the suit has been incorrectly valued for the purposes of court-fee and jurisdiction. If so, what is the correct valuation for both of the purposes? OPD
(3) Whether the plaintiffs have got no cause of action to bring this suit? OPD
(4) Whether the defendants are entitled to recover special costs, if so, to what extent, OPD
(5) Whether the pedigree-table given in the para. No,4 of the plaint is correct, if so, its.Effect? OPD
(6) Whether the plaintiff are legal heirs of Nagina son of Alia? OPP
(7) Whether the decree, dated 19-3-1986 is illegal against law and facts and hence has no effect upon the rights of the plaintiffs and is liable to be set aside? OPP
(8) Whether the plaintiffs are owners of the disputed land to the extent of their legal shares as heirs of Nagina son of Alia and hence they are entitled to recover the possession of the same? OPP
(9) Relief.
'Evidence of the parties was recorded. The learned trial Court found Issues Nos.1 and 4 in favour of the respondents but answered Issues Nos.5, 6 and 8 and consequently Issues Nos.3 and 7 against the respondents. The suit was dismissed vide judgment and decree, dated 23-7-1989. A first appeal filed by the respondent was allowed by a learned Additional District Judge-II, Bhakkar, on 21-6-1990 who decreed the suit of the respondents.
2. This R.S.A. Was dismissed by this Court vide judgment, dated 21-3-2001. C.A. No,1806 of 2002 filed by the appellants was allowed by the Honourable Supreme Court of Pakistan on 26-9-2006 and the matter was remanded back to this Court for fresh decision after hearing both the parties.
3. Mr. M. Zafar Chaudhry, Advocate/learned counsel for the appellants contends that although an objection was not taken but the suit was barred by time. Further contention is that evidence on record has been misread. According to learned counsel, the respondents had failed to prove their relationship with Nagina and the learned Additional District Judge has relied on the weaknesses in the evidence of the appellants. Learned counsel vehemently contends that the learned Additional District Judge has acted against the law while relying upon the additional evidence in the form of pedigree-table without a chance to the appellants to rebut the same. He also argues that the pedgree-table having not been attested in accordance with Article 96 of the Qanun-e-Shahadat Order, 1984, was otherwise not admissible in evidence.
4. Malik Amjad Pervaiz, Advocate/learned counsel for the respondents, on the other hand, contends that the suit was very much within time and no objection was ever raised. According to the learned counsel, even if the said pedigree-table is taken out of consideration, the entitlement of the respondents to inherit the suit-land stands fully established on record.
5. I have gone through the lower Courts records, with the assistance of the learned counsel for, the parties. I deem it appropriate to deal with the matter of additional evidence in the first instance.
The first appeal was admitted to hearing on 30-7-1989 and the case was being adjourned for arguments. On 25-3-1990 it was noted that the appellants (in the first appeal) have filed an application for additional evidence. On 4-4-1990 it was noted that a reply has been filed and the case was adjourned to 12-5-1990 for arguments. On this date, the learned Presiding Officer was on leave and the case was adjourned to 18-6-1990 and then to 21-6-1990 on which date the arguments were heard and the appeal was decided. Somehow or the other the learned Additional District Judge has observed in para.8 of the impugned judgment that the application for additional evidence has not been accepted. He, however, relying upon the case of Nathe Khan v. Mst. Rahmat Bibi and others PLD 1961 (W.P.) B.J. 96 proceeded to consider the pedigree-table.
6. I have checked up the entire file and do not find any order deciding the said application. Be that as it may, I do agree with the learned counsel for the appellants that the document could not have been relied upon without an opportunity to the appellants to object to the same and, of course, to rebut the same. I, therefore, do hold that the said document could not have been considered while passing the impugned judgment.
7. I have already stated above the material contents of the pleadings of the parties. According to the pedigree-table drawn in the plaint and statements made in para.5 of the plaint, Nagina is shown to be son of Alia son of Kanwra while Yousaf respondent No,1 is shown as son of Jora son of Faiz Ali, respondents Nos.2 to 5 are shown as sons of Mohyud-Din son of Faiz Ali and.Ashiq Ali respondent No,6 is shown as son of Mehmood Ali son of Faiz Ali. The said Faiz Ali is son of Kanwra and brother of Alia. In reply it was stated that the name of grandfather of Nagina was not Kanwra and that he had no uncle named Faiz Ali. It will be seen that it has not been stated as to who was father of Nagina if not Kanwra.
8. Be that as it may, the respondents produced P.W.3 Wazir Ali aged 70 years (on 12-4-1988). He stated that Kanwra had two sons namely Faiz Ali and Alia. Alia had two sons namely Mazhar and Nagina, who had no issue and his widow Misri is alive while Aleem-udDin son of Mazhar has died.
Faiz All had six sons. Only Mohy-ud-Din came to Pakistan and the remaining died in India. The respondents Nos.2 to 5 are the sons of Mohy-ud-Din while Yousaf is the son of Jora and Ashiq Ali is the son of Mehboob Ali. The witness was cross-examined. It was suggested to him and he denied that Alia was son of Biju. The other pedigree explained by the witness was not questioned. Ashiq Ali appeared as PW..4 and made a similar statement. Conversely, Mst. Misri the widow of Nagina herself appeared as D.W.2. She stated that Nagina was son of Alia son of Biju. She also stated that Mazhar was the brother of Nagina. She was directly suggested that Faiz Ali and Alia were the sons of Kanwra and she expressed ignorance. She admitted that Mohy-ud-Din, Mehmood Ali and Jora were sons of Faiz Ali. She admitted that the respondents are the progeny of the said sons of Faiz Ali.
9. Mehboob Ali aged 60 years appeared as D.W.1. In his very examination-in-chief he stated that Nagina was son of Alia and he does not know the name of the father of Alia. He also expressed ignorance that the respondents were related to Nagina. In his cross-examination, he expressed ignorance as to whether Alia had a brother or not. He also expressed ignorance as to how many sons Kanwara had.
10. Exh.P.1 is the certified copy of pedigree-table of the revenue estate of Sonkra. Alia and Faiz Ali appeared in the same line and the other contents are in accordance with the said statements of the respondents' witnesses.
11. Having thus, examined the records, I do find that the conclusion arrived at by the learned Additional District Judge on issues Nos.5 and 6 are supported by the said evidence on record.
12. So far as the question of limited ownership of Mst. Misri is concerned, she herself admitted in the witness-box without any demur that she got the suit-land in inheritance from Nagina. Similarly, Mehboob Ali D.W.1 also admitted that the suit-land was allotted in lieu of the land of Nagina.
13. As to the objection to limitation, the same is also baseless. The widow was treated as a limited owner by operation of law i,e, section 2 of the Punjab Muslim Personal Law (Shjariat) Application (Removal of Difficulties) Act, 1975. The contention of the learned counsel is that the suit should have been filed within one year of the date of promulgation of the said Act. I am afraid the one years' period provided in section 2 of the said Act is for revival of proceedings already decided and not for a suit of instant nature. The need for seeking declaration arose because of the said act of the widow by alienating the land through the decree passed on 19-3-1986. The suit having been filed on 2-4-1986 cannot by any stretch of imagination be said to be barred by time.
14. A question has been raised as to the share of Mst. Misri. Since she had admitted having alienated land to Karam Ali deceased, the alienation to the extent of 1/4th share shall remain in tact in favour of Karam Ali deceased and now his L.Rs, of course, the residue 3/4 will vest in the plaintiffs-respondents. No other point has been urged. The R.S.A. Is dismissed but without any orders as to costs.
15. The records of the lower Courts be remitted back immediately.