' ABDUL SATTAR GORAYA, J.---This revision application is directed against the judgment and decree dated 42-2006 passed by the learned Additional District Judge, Bahawalpur and that of dated 14- 12-1995 of the learned trial Judge whereby the suit brought by the respondents in the nature of declaration-cum-permanent injunction was decreed.
2. The facts as born out of the pleadings of the parties are that Fazal Din, Nizam-ud-Din, Nawab Din, Mehr Din, Siraj Din, Imam Din sons of Mehnga obtained the land under Abadkari. Scheme measuring 598 Kanals in equal shares comprising Khata Nos.1 and 19 along with six other Ihatas situated in the revenue estate of Chak No,2/BC, Bahawalpur according to Register Haqdaran Zameen pertaining to the years, 1944-1945. The land has been, fully described in the head-note of the plaint. The allotment of the land was made by the Government of Bahawalpur under the Colonization of Government Lands (Punjab) Act, V of 1912 hereinafter called as Act, V of 1912 which in due course was adopted by the State of Bahawalpur on 2nd of May, 1926. Fazal Din who was one of the allottee had yet to make payment of installments with a view to acquire the proprietary rights in State land, died in the year, 1947 before the emergence of Pakistan and left behind him one widow Mst. Mehr Bibi, two minor daughters (i) Rasoolan Bibi and (ii) Alam Bibi and five brothers (i)
Nizam-ud-Din, (ii) Nawab Din, (iii) Mehr Din, (iv) Siraj Din and (v) Imam Din. Conveyance deed was executed in favour of the deceased allottees in due course of time. On the demise of Fazal Din, Mutation of Inheritance No,6 dated 7-11-1948 was sanctioned by which two daughters Rasoolan Bibi and Alam Bibi who were minors at the time when the inheritance stood devolved were excluded and instead, the mutation was sanctioned in favour of brother of Fazal Din deceased allottee.
Mutation of inheritance bearing No,6 attested on 7-11-1948 was brought under impeachment through a suit in the nature of declaration-cum-permanent injunction. In the suit, entries of the record of right built on the basis of the said Mutation No,6 was also sought to be corrected being illegal and inoperative qua the right of the suitors.
3. The defendants and the legal representatives of the said brothers of the deceased contested the suit tooth and nail and came out with the plea that mutation has been rightly sanctioned in favour of brothers of the deceased to the exclusion of his daughters under the customary law which was prevailing in their tribe and in that the mutations were being sanctioned to the exclusion of the daughters of the deceased owner of the suit property. Divergent pleadings of the parties gave rise to as many as 15 issues including one of relief. The learned trial Judge vide his judgment and decree dated 14-12-1995 decreed the suit with costs. Appeal brought against the said decree dated 14-12-1995 remained successful to the extent that the learned Additional District Judge remanded the matter on 28-2-2000 again to the trial court which order was set aside in Civil Revision No,132 of 2000-BWP. In that, my learned brother Muhammad Jahangir Arshad (who then was) directed that appeal be decided on the basis of evidence available on the record after hearing the parties afresh in accordance with law and found the order of remand to be illegal having the effect of a de novo trial. In post-remand proceedings, the learned Additional District Judge vide his judgment and decree dated 4-2-2006 maintained the findings of the learned trial Judge in toto on all issues and ultimately dismissed the appeal.
4. I have given conscious thought to the arguments addressed at the bar by the learned counsel for the parties and with their able assistance perused the record.
5. During the course of arguments, the main hub of the case of the learned counsel for the parties remained confined only to the extent of existence of custom. Learned counsel for the petitioners bitterly argued that case of the peiitioners was governed by the customary law and Mutation No,6, in any case, has rightly been decided by the revenue authorities and interference by the Civil Court to the contrary was uncalled for. To prove the custom, it is a trite proposition of law that burden to prove rests on the party who alleges the existence of a custom. The most A important document to discharge the onus, if any, was Riwaj-e-Aam Wajib-ul-Arz, which is not available on the file. In this case, it was the defendants who asserted that family of the deceased was governed by the custom and the rights of the daughters of the deceased, according to the family rites and customary law, ipso facto stood extinguished. The position, therefore, emerges is that it is easy to allege the application of custom law and difficult to prove and in that event, strong evidence is required. The issue cannot be decided by the. Courts merely on the basis of analogy. I am fortified in my view by Mekr Das and another v. Munshi Ram and others AIR 1936 Lah.920, Abdul Shakur v. Mt.
Allah Rakhi and others AIR 1935 Lah.138, Mt. Barkat Bibi v. Muhammad Amin and another AIR 1935 Lah.325 and Mt. Samon and others v. Shahu and others AIR 1935 Lah.93. Simultaneously it is a celebrated rule established from centuries together that the custom may differ from place to place, street to street, Mohallah to Mohallah and tribe to tribe slightest evidence available on the record that the parties were governed by the special custom can easily be ignored. In absence of any instrument in the nature of Riwaj-eAam Wajib-ul-Arz and the judicial decisions on the subject, court cannot come to the conclusion that the parties would govern by the custom. In support of this view, if any authority is required, Shamsud Din v. Mst. Jewan etc., 1986 MLD 764 can be quoted with advantage.
6. This fact will surely steal the eminence that customary law, if any, applies only to the ancestral properties and in respect of none others. This is common ground between the parties that the deceased Fazal Din acquired the land which was allotted to him in equal share together with his brothers under the provisions of section 10 of the Act V of 1912 in respect whereof, subsequently conveyance deed was issued under orders of the Deputy Commissioner-cum-Collector, Bahwalpur. If any case-law is required, Sikandar and others v. Allah Yar and others 1995 CLC 1253 can be referred. Resultantly, the plea of customary law adopted by the respondents is of no avail in the case in hand.
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7. During the course of arguments, much emphasis has been laid by the learned counsel for the petitioners that the mutation validly sanctioned way back decades together which carried the presumption of truth, has unlawfully been upset by the Courts below and in recording the adverse findings, both the Courts below have committed illegalities and irregularities in exercise of their jurisdiction. This limb of argument of learned counsel for the petitioners carries no weight.
Mutations are never the instrument of title and the same are also not a part of the record of right and do not create any title and they are sanctioned only for fiscal purpose, with a view to keep the record straight. Entries embodied in the mutation and the endorsement made by the Assistant Collector of either grade can conveniently be challenged and brought under impeachment before the Civil Court. Mutation which has been sanctioned to the exclusion of the legal heirs namely the daughters of the deceased, was nothing but a waste paper, running counter to the Shariah by which the Muslim right holders are governed. In holding this view, I seek guidance from Baidullah Khan and another v. Mahmood Jan Khan and 12 others 1985 CLC 821 and Azam Khan v. Azad Khan and 6 others PLD 1986 Lah.275. Even on the score of section 20 of the Act V of 1912, the tenancy rights of the deceased Fazal Din were to be devolved in favour of his widow Mehr Bibi who as per the record and the evidence available, died in the year, 1970. Entries embodied in D the mutation of inheritance No, 6 dated 7-11-1948 vividly show that the inheritance had been devolved upon brothers of the deceased Nizam-ud-Din to the exclusion of the said widow and his daughters. The rule' of succession and inheritance was completely ignored.
8. Section 19-A of the Act V of 1912 and the provisions of Enforcement of Shariah Act, 1991 give a definite assurance that the decisions shall be taken in accordance with the Muslim Personal Laws.
On termination of the limited interest of the female tenants (Mehr Bibi), rights had to be devolved upon her children in accordance with Muhammadan Law. Reference may be made to Mst. Began v. Mst. Bai 1983 SCMR 80.
9. The proposition of law is too settled to admit any debate that after the full price is made and the proprietary rights are acquired in respect of land allotted to the tenant under the provisions of the Colonization of Government Lands (Punjab) Act, 1912, the tenancy comes to an end and the allottee is not governed by statement of conditions. He becomes E absolute owner and is not governed by the provisions of the Act V of 1912. Section 2 of the West Pakistan Muslim Personal Laws (Shariat Application) Act (Act V of 1962) in terms provides the limited interest of the widow which in this case stood terminated with effect from the date Mst. Mehr Bibi widow joined the majority, whereafter the succession had to fall on her legal heirs in accordance with the Shariah. It is reiterated that the property was self acquired by the deceased allottee under the provisions of section 10(2) of the Act V of 1912 and in any case, in view of reiteration in Sikandar Ali v. Allah Yar 1995 CLC Lah.1273, the suit land was not governed by the customary law or the custom prevailing in the family or in that part of the area. Reference may be made to Umar Din v. Mst. Sharifan PLD 1995 SC 686. In the given situation and the facts and circumstances of the case, I hold that the parties were governed by Shariah and the F Muslim Personal Laws. I feel no hesitation but to come to the inescapable conclusion that the mutation was illegally sanctioned and the fact that the entries embodied in the mutation and the question of law has been settled, all superstructure raised would automatically will fall on the ground. Yousaf ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak)104, can be referred in support of the above view. Void transactions are never clothed with finality.
10. Judgment of the learned trial court which has been affirmed by the learned lower appellate Court, is rich in detail. While sitting in revisional jurisdiction, the scope of which ex-facie is very limited except for the reasons and the grounds mentioned in section 115, C.P.C., I have tried my level best to dissect the whole record and scan the evidence but the issue is resting only on the legal proposition. Learned counsel for the petitioners has not H been able to bring out any material or the contradictions in evidence in the nature of misreading or non-reading to warrant interference.
Revision application having no merit is dismissed with costs throughout.