' NASIR-UL-MULK, J.--- This appeal by leave of the Court is directed against the judgment of the Lahore High Court dated 29-11-2004, allowing the civil revision filed by the respondent/plaintiff Mst.
Fatima Bibi and by setting aside the judgments and decrees of the District Judge, Vehari dated 15- 4-2004 and of the Civil Judge dated 19-2-2003, decreed the suit of the respondent, in which she had sought declaration that Mutations Nos.72 dated 7-8-1947 and No,5 dated 19-4-1964 were unlawfully attested and sanctioned in favour of the petitioner/defendant and the plaintiff/respondent was entitled to equal share in the suit property.
2. Leave to appeal was granted to the appellant on 14-11-2006 in the following terms:- "After hearing the learned counsel for the parties, we grant leave to appeal to consider the question, inter alia:---
(i) whether the present case would be governed by the provisions of section 3 of West Pakistan Muslim Personal Law Shariat (Application) Act, 1962 or sections 19-A, 20 and 21 of the Colonization of Government Lands (Punjab) Act, 1912;
(ii) whether the proprietary rights to Mst. Fateh Bibi were validly conferred by the Colonization Authorities on 20-2-1962;
(iii) whether Mst. Fateh Bibi was to be treated as limited owner despite conferment of proprietary rights and she was not empowered to transfer the suit-land to her husband, Muhammad Sharif, the petitioner No,2;
(iv) whether consequent upon marriage of Mst. Fateh Bibi with Muhammad Sharif, the suit-land would devolve upon the legal heirs of late Laloo, the father of petitioner No,1 and respondent No,1 and
(v) whether Mst. Fatima Bibi, the respondent No,1 could also be treated to be a co-tenant along with Mst. Fateh Bibi upon the death of their mother late Mst. Budhai, widow of late Laloo."
3. State owned land measuring 580 Kanals and 4 Marlas was granted to one Lalu in Chak No,67/K.B.
District Vehari, under the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter referred as to the Act). Lalu died on 2-9-1940 and the said land was divided in 3 equal shares through Mutation No,48, dated 4-12-1940 among his two sons Amira, Bhawala and daughter-in-law Mst.
Bhawala, the widow of Noora, the 3rd son of Lalu, who had predeceased him. Mst. Budhai died in the year, 1947 and was survived of two daughters Mst. Fateh Bibi and Mst. Fatima Bibi. Mst. Fatima Bibi was married at the time of death of her mother and thus the entire share of Mst. Budhai was attested in favour of her unmarried daughter, Mst. Fateh Bibi, through inheritance Mutation No,72 attested on 7-8-1947. On 12-2-1962 proprietary rights were conferred on Bhawala, Ghulam Rasool son of Amira and Mst. Fateh Bibi, 1/3rd share each and Patta Malkiat was executed in their favour by the District Collector. Mst. Fateh Bibi gifted her share of the land to her husband, Muhammad Sharif, through gift Mutation No,5 dated 30-4-1964. It was not until the year, 1997 that Mst. Fatima Bibi brought the present suit claiming 1/2 share in the share of her mother Mst. Budhai. This was denied to her by the trial and the Appellate Courts but granted to her by the High Court in its revisional jurisdiction.
4. Mr. Gul Zarin Kiyani, Advocate Supreme Court appeared for the appellant, Mian Ghulam Hussain for the respondent, Mst. Fatima Bibi. Two applications, one C.M.A. No,976-L of 2005 has been filed by the legal heirs of Amira and the other, C.M.A. No,1520 of 2007, by the legal heirs of Bhawala. The applicants in both the applications have prayed for impleadment in the present proceedings, pleading that Mst. Budhai was a limited owner in the suit property which was to be reverted to the original owner upon her death or remarriage. That accordingly neither of the two daughters of Mst.
Budhai was entitled to inherit their mother share and the same had to be divided between the legal heirs of Bhawala and Amira. The legal heirs of Amira have also filed a civil suit in the year, 2005 on the same subject-matter.
5. Mr. Muhammad Munir Paracha, Advocate Supreme Court appeared for the applicants in C.M.A.
No,976-L of 2005 and Raja Abdul Ghafoor, Advocate Supreme Court for the applicants in C.M.A.
No,1520 of 2007. They also addressed the arguments in support of their respective applications.
6. The learned counsel for the appellants assailed the findings of the learned Judge-in-Chambers that on the death of Mst. Budhai, her two daughters inherited equally her share in the property and that Mst. Fatima Bibi's right of inheritance cannot be defeated on account of time limitation. The learned counsel submitted that it was not a case of plain inheritance in accordance with Sharia and that initially, upon the death of Lalu, the original tenant, the distribution of the property was to be regulated by section 20 of the Act. That the evidence brought on record unequivocally establishes that Mst. Fatima Bibi was married at the time of the death of her mother and thus according to the rules she was excluded from inheritance. The learned counsel pointed out that the appellant had become full owner in the year, 1962 through Patta Malkiat and thus her proprietary ownership thereafter was not amenable to any claim of inheritance. It was further argued that even if respondent No,1 had any right in the property she has lost the same by acquiescence as she slept over her rights for more than 50 years. It was, therefore, argued that the suit was barred by time and on this score alone it was liable to be dismissed. In support of his contentions the learned counsel relied upon Zil Muhammad v. Mst. Hayat Bibi 1971 SCM R 514, Mst. Rasul Bibi v. Mst. Rehmat Bibi 1987 SCM R 2036, Ahmad Din v. Muhammad Shafi PLD 1971 SC 762 and Federation of Pakistan v.
Public-at-Large PLD 1988 SC 153.
7. The learned counsel representing respondent No,1, Mst. Fatima Bibi, referred to para 3 of the complaint and pointed out that as a matter of fact the respondent was engaged and not married at the time of death of her mother. That it was Bhawala, who had managed recording of incorrect entries in the Revenue Record showing her married in order to deprive her from her share in her mother's property so that it would entirely go to his future daughter in law (Mst. Fateh Bibi). To substantiate the respondent's/plaintiff's plea that she was unmarried at the time of death of her mother, the learned counsel took us to the statement of Muhammad Sharif (D.W.2) and Hassan Bakhsh (D.W.3). As to the question of limited ownership, the learned counsel cited Mst. Jhando v.
Muhammad Sharif 2006 SCM R 882, Mst. Janntan v. Mst. Taggi PLD 2006 SC 322, Mst. Kaneezan Bibi v. Muhammad Ramzan 2005 SCM R 1534 and Mst. Began v. Mst. Bai 1983 SCM R 80.
8. The learned counsel for the applicants in C.M.A. No,976-1 of 2005 and C.M.A. No,1520 of 2007 contended that the applicants were necessary parties to the proceedings in that due to the limited ownership of the mother of the appellant and respondent No,1, neither of them were entitled to any share in the property, originally allotted to Lalu, predecessor-in-interest of the parties. They further argued that as a matter of fact they were necessary parties to the very suit filed by Mst. Fatima Bibi and thus the same be amended and remanded for fresh adjudication afresh.
9. The case of respondent, Mst. Fatima Bibi, before the trial Court, as seen from her plaint, was that like her sister Mst. Fateh Bibi, defendant, she was also entitled to a share in the legacy of their mother, Mst. Budhai, and that she had been wrongly deprived of such share because she was incorrectly shown as married woman in the Mutation No,72 dated 7-8-1947. However, she did not dispute that according to the law then prevalent, that as a married woman she would not have been entitled to a share in the suit property. Thus the question initially before the trial Court was whether or not the plaintiff was married at the time of death of her mother. The trial Court, held that the plaintiff had failed to produce evidence in rebuttal of the entries made in the Mutation No,72 dated 7-8-1947 regarding her marriage and thus on this score dismissed her suit. While doing so the Court also observed that the plaintiff did not personally appear to substantiate her claim but was represented by her attorney, Hafiz Abdul Majid, her son. The Appellate Court, during hearing of the appeal, summoned both the sisters and recorded their better statements. The Court held that there was no dispute between the parties that the suit-land was to be distributed in accordance with section 20 of the Act; that on the death of the allottee, only the unmarried daughters of the tenant could receive the land under subsection (c) of section 20 of the Act. With this in mind, the Appellate Court focused on the question as to whether the plaintiff, Mst. Fatima Bibi, was unmarried at the time of death of her mother and on the basis of the evidence found her claim false. The Court further held that the suit was barred by time as it was filed 50 years after the mutation in question, was sanctioned in the year, 1947. The learned Judge-inChambers in the High Court did not give much attention to the controversy that was raised before the two Courts but focused on the issue of time limitation and held that since the plaintiff, Mst. Fatima Bibi, was entitled to her Sharai share in equal proportion to her sister's and that being a case of inheritance limitation would not come in her.
10. It will be seen that the questions formulated in the leave granting order reproduced in para 2 above pertains to matters that do not arise from either pleadings of the parties or the judgments of any of the three Courts. Thus notwithstanding the questions so formulated, we would confine ourselves to the issues raised before the Courts below and their determination thereon.
11. Mst. Budhai, the mother of the contesting parties, held her share in the property left by Lalu, as tenant under the Colonization of Government Lands (Punjab) Act, 1912. It is common ground between the parties that upon the death of Mst. Budhai her interest in the property would be devolved in accordance with the provision of clause (c) of section 20 of the Act, according to which the unmarried daughters would succeed to the tenancy. It is not disputed that Mst. Fateh Bibi was unmarried when Mst. Budhai passed away and entry to that effect was made in Mutation No,72 dated 7-8-1947. The same mutation had excluded Mst. Fatima Bibi from succession on the ground that she was already married. The burden was, therefore, on the plaintiff, Mst. Fatima Bibi, to establish that the entry regarding her marriage in the said mutation was incorrect. Before the trial Court she produced two witnesses in support of her claim, who only made oral assertion that the plaintiff was unmarried at the relevant time. The plaintiff did not appear as her own witness to substantiate her assertion and on this an adverse observation was made by the trial Court. To further reach a proper conclusion on the issue, the Appellate Court summoned both the sisters and recorded their statements.
12. The year of birth of Mst. Fatima Bibi in her identity card is entered as 1925 and that of the petitioner, Mst. Fateh Bibi, recorded as 1943. Thus in the year, 1947 Mst. Fatima Bibi was of marriageable age of 22 years and Mst. Fateh Bibi only around three years old. These facts further give support to the entry made in the Mutation No,72 dated 7-8-1947. When examined by the Appellate Court, Mst. Fatima Bibi stated that Mst. Fateh Bibi was only two years younger to her. It seems that this assertion was made in order to narrow the gap of the ages of the two sisters. Thus, however, totally contradicts the entries of dates of birth made in their respective identity cards, which show that Mst. Fatima Bibi was 18 years old than Mst. Fateh Bibi. Thus the plaintiff had not only failed to rebut the entry made in Mutation No,72 dated 7-8-1947 but the evidence produced rather corroborates such entry.
13. As regards limitation no issue was framed on the point and the trial Court did not advert to the same. However, the Appellate Court took it as an additional ground for maintaining dismissal of the suit of the plaintiff, whereas the High Court had mainly discussed this question. The plaintiff had not claimed her share on the basis of inheritance under Sharia Law but on the plea that she also was entitled to a share like her sister under section 20(c) of the Act as she was also unmarried when her mother died. It was on this basis that she challenged Mutation No,72 dated 7-8-1947. The succession of the tenancy rights of Mst Budhai was to be regulated under section 20(c) of the Act.
The High Court, therefore, misdirected itself in proceeding on the premises that the dispute between the parties was regarding Sharai share of Mst. Fatima Bibi. Limitation would be a hurdle in the plaintiff's way in seeking relief. The plaintiff filed the suit 50 years after the impugned mutation and according to the statement of Mst. Fatima Bibi, she did not claim her share earlier due to her respect for her unless, Bhawala. By her own statement, the plaintiff thus demonstrated that notwithstanding her knowledge of the entries in the mutation, she deliberately desisted from claiming her share in the suit property. This can hardly be legal ground for condoning delay. The plaintiff's suit was, therefore, barred by time having been filed 50 years after the cause of action arose to her.
13-A. Another aspect of the case is that the petitioner/defendant remained a tenant of the suit property until 1962, when she was assigned proprietary rights by an instrument executed on 12-2- 1962. This instrument of ownership had not been challenged by the plaintiff in the suit for she assailed only mutations Nos.72 dated 7-8-1947 and No,5 dated 19-4-1964, whereby Mst. Fatima Bibi had gifted the property to her husband. The petitioner's ownership of the suit property, therefore, remained unchallenged.
14. In the light of foregoing discussion, the impugned judgment of the Lahore High Court cannot be sustained. The appeal is, therefore, allowed, the judgment and decree of the High Court are set aside and that of the trial Court restored, with the result that the suit filed by the respondent, Mst.
Fatima Bibi, is dismissed.
' C.M.A. No,976-L of 2005 and C.M.A. No,1520 of 2007 ' As regards C.M.As. No,976-L of 2005 and 1520 of 2007, the applicants in both the applications are legal heirs of the two sons of Lalu and the nature and the basis of their claim to the suit property is totally different than the dispute between the plaintiff and the defendant in the present litigation.
Their claim, therefore, cannot be adjudicated in the present litigation. The applications are, therefore, dismissed.