' JAVED IQBAL, J.--- This petition for leave to appeal is directed against the judgment, dated 8-6- 2001 passed by learned Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby the revision petition preferred on behalf of respondents has been accepted and judgment/decree, dated 19-6- 1982 passed by learned Civil Judge, restored.
2. Precisely stated the facts of the case are that "Mst. Faiz Ellahi predecessor-in-interest of the present , petitioners filed a suit for declaration to the effect that Noor Ahmad was the original owner of the land detailed in the suit and that upon his death, he was survived by two sons and two daughters namely Bagh Ali, Mehboob Alam, Mst. Faiz Elahi herself and Mst. Sahib Nishan.
Defendants Nos.1 to 7 in the suit are the legal heirs of said Bagh Ali and Mehboob Alam while the other defendants are the legal heirs of Mst. Sahib Nishan. It was also averred in the plaint that in the matters of inheritance, the parties were governed by Shariat. She also stated to be in possession of her share and thus, claimed to be owner in possession of 1/6 share in the estate of her father Noor Ahmad. The suit was vehemently contested on the ground that Mst. Faiz was not the daughter of Noor Ahmad and factum of possession was also denied. After framing of issues and recording the evidence pro and contra suit was decreed in favour of Mst. Faiz by learned trial Court by means of judgment/decree, dated 19-6-1982. Being aggrieved an appeal was preferred by the petitioners which was accepted vide judgment/decree dated 21-3-1985 which was subsequently, set aside as a result of revision filed by the respondent vide judgment impugned restoring the judgment/decree, dated 19-6-1982 of learned trial Court, hence, this petition.
3.It is mainly contended by Mr. Mehdi Khan Chauhan, learned Advocate Supreme Court on behalf of petitioners that the controversy was decided in the year 1989 and it was held by the Revenue Authority that legal heirs of Noor Ahmad (deceased) are only two sons and three widows. It was also decided on the basis of the statements got recorded by Asmat Bibi and Noor Elahi that they were widows of Noor Ahmad but being issueless they required only maintenance which was being provided to them. It is urged vehemently that the judgment passed by the Chief Court of Bahawalpur State and its endorsement by the Nawab of Bahawalpur State became final on the basis of which mutation of inheritance was attested in favour of Mehboob Alam and Bagh Ali and being final and closed transaction it cannot reopened. It is next contended that in view of the provisions as contained in section 2-A of the West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962 '(hereinafter referred to as the Act) the question of inheritance once decided by the Court of competent jurisdiction cannot be reopened merely on the ground that section 2-A of the Act was given retrospective effect at it was not made applicable to the past and closed transactions and the judgment/decrees passed by the Court of competent jurisdiction could neither be revised nor set aside on the basis of section 2-A of the Act. It is urged with vehemence that all the transactions/alienations/ mutations were completed in the year 1930 which aspect of the matter has been ignored by learned High Court which resulted in serious miscarriage of justice.
It is also urged that it is a case of sheer misreading of the documentary as well as oral evidence, specific reference has been made to Exhs.D.1 and D.2 which have neither been read properly nor due importance has been given. It is contended that the categoric admission made by Asmat Bibi widow of Noor Ahmad before learned Chief Court of Bahawalpur State that she was issueless and provided with maintenance should have been kept in view by the learned High Court while deciding the controversy which has not been done for the reasons best known to learned High Court which has caused serious prejudice against the petitioners.
4. We have carefully examined the contentions as agitated on behalf of the petitioners and scanned the entire evidence carefully. We have perused the judgment/impugned. Let we make it clear at the out set that the learned Appellate Court had framed Issue No,7-B to the effect that "Whether Noor Ahmad deceased was governed by Shariat Law in the matter of inheritance and succession and the daughters were given inheritance, if so with what effect", incomplete ignorance of the fact that the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance XIII of 1983 had already been promulgated w.e.f, 1st of August, 1983.
5. There is no cavil with the proposition that section 2-A of the Act being retrospective in effect, last male holder had to be treated as one who at time of his death was governed by the Muslim Personal Law and resultantly his legacy will be devolved in accordance with Muslim Personal Law/Sharia. In this regard reference can be made to cases titled Hakim Ali v. Barkat Bibi 1988 SCM R 293, Muhammad Qasim Khan v. Mehboba 1991 SCM R 515, Fazal Nishan v. Ghulam Qadir 1992 SCM R 1773, Rattingan's Digest of Customary Law and Federation of Pakistan v. Muhammad Ishaq PLD 1983 SC 273, Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407, Ismail and another v. Ghulam Qadir 1990 SCM R 1667 and Lal and 3 others v. Rehmat Bibi and another PLD 1991 SC 582.
6. We have also adverted to the objection of limitation which appears to be baseless as it does not run against co-sharer which needs no further elucidation in view of Exh.P.1 and Exh.P.2 showing that B property had remained in possession of both Zulfiqar and Shah Nawaz who were admittedly sons of Mst. Faiz and their possession shall be deemed to be the possession of Mst. Faiz. In this regard we are fortified by the dictum laid down in case titled Muhammad Qasim Khan v. Mehbooba 1991 SCM R 515 and Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC 1. Much reliance has been placed by the learned Advocate Supreme Court on behalf of petitioner on the judgment/decree, dated 26-3- 1930 passed by the Chief Court but the learned Advocate Supreme Court could not furnish any plausible justification regarding its applicability to the respondents who were not party to it and hence it would have no binding effect upto their extent. We may point out here that the question of title cannot be decided on the basis of mutation dated 28-8-1930 got recorded on the basis of judgment/decree, dated 26-3-1930 passed by the Chief Court which was not binding on the respondents and resultantly the said mutation would have no adverse effect on their title. The concurrent findings of facts arrived at by the learned dial and Appellate Courts that Mst. Faiz is daughter of Noor Muhammad cannot be reversed without sufficient lawful justification which is lacking in this case. Much reliance has been placed on the endorsement of Nawab of Bahawalpur which we afraid cannot frustrate the object as contemplated in section 2-A of the Act. Mst. Faiz being daughter of Noor Muhammad shall be governed by Muslim Personal Law and cannot be deprived of her due share conferred upon her by Sharia due to previous litigation, point of limitation, earlier mutation or endorsement of Nawab of Bahawalpur having no sanctity of law.
7. The judgment impugned being free from any illegality or infirmity does not warrant interference.
The petition being meritless is dismissed and .