' ABDUL SATTAR GORAYA, J. By means of this revision petition, the judgment and decree dated 18-3- 1996 passed by the learned District Judge, Sahiwal has been brought under challenge.
2. Facts in brief are that Mst. Bakhshai brought a suit for declaration and permanent injunction as a consequential relief against the respondent on 24-3-1980. In the plaint it was stated that property sufficiently described in para 2 of the plaint was allotted to her father namely Walia son of Ramzan under section 10(2) of the Colonization of Government Lands Punjab Act, 1912 and on the death of Walia in 1932, the suit land devolved upon Mst. Fatima widow of Walia and mother of Mst. Bakhshai through mutation No,14 dated 20-3-1932 as a limited owner. It is stated that Mst. Fatima in due course contracted second marriage and the property held by Walia devolved upon respondent No,1 through mutation No,28 and when Mst. Bakhshai contracted second marriage, half of the property of Walia devolved upon Mst. Bakhshai and the remaining half devolved upon Mst.
Bhaghan, sister of Walia by means of mutation No,200 dated 21-4-1951. After death of Mst. Bhaghan respondent No,9-11 succeeded in her place. It is stated that Mst. Bakhshai shifted to Goth Babu Shah Tehsil Thar District Khairpur Thari in the Province of Sindh and she delivered the possession of her share to defendants Nos.1 and 2 as tenants. On persuasion made by the defendants, one Nizam Din-defendant No,8 was appointed as constituted attorney to look after the property who incidentally was known to her husband. It is stated that abruptly defendants Nos.1 and 2 stopped paying share of the produce to defendant No,8 and feeling dissatisfied with the conduct of defendants Nos. 1 and 2, Mst. Bakhshai again shifted her residence from Goth Babu Shah (Sindh) and settled in Chak No,92/6R. When she came in the Province of Punjab, she came to know that ex parte decree dated 18-12-1962 has been obtained by practising fraud and furnishing wrong address. The said arrangement was made, in fact, in collusion with defendant No,8 who was constituted attorney. It was claimed that mutation No, 200, dated 21-4-1951 and the decree dated 18-12-1962 were the result of misrepresentation and fraud and the suitor was entitled to succeed to the legacy of Walia. There was a hot contest by the respondents. Apart from merits, several preliminary objections were taken. It was claimed that the application for ex parte decree and the appeal against the said decree also failed and in any case the matter is hit by the principle of res judicata. Divergent pleadings of the parties gave rise to as many as ten issues including one of relief. The learned trial Judge vide his judgment and decree dated 26-6-1991 dismissed the suit by having held that the succession was governed by the customary law and the mutation has legally been sanctioned to the exclusion of Mst. Bakhshai, daughter of Walia. Against the said judgment and decree, appeal was taken before the learned District Judge who vide judgment and decree dated 10-3-1996 accepted the appeal and decreed the suit as prayed for.
3. Learned counsel for the petitioner states that the learned lower appellate Court has fallen in serious errr in reaching at the conclusion that the succession was not governed by the customary law. Further argued that section 2-A of the Act V of 1962 had no application in the case in hand and the matter in issue has been decided on wrong premises. Also argued that according to the custom prevailing in the tribe, Mst. Bakhshai had no conceivable right to claim her share and to maintain the suit.
4. Learned counsel for the respondents argued that under the Shariah the land had to devolve upon the daughter of the deceased and the impugned judgment and decree passed by the learned lower appellate Court is not suffering from any illegality or jurisdictional error.
5. I have given conscious thought to the submissions made by the learned counsel for the parties.
Available record perused.
6. The moot question involved for determination in this case is that as to whether the succession will operate under the custom or the mutation shall be sanctioned in accordance with the Shariah.
The limited ownership was terminated when wife of the deceased contracted second marriage.
Succession devolved upon Mst. Bakhshai through mutation No,28 fundamentally for the reasons that she was a limited owner after the death of her mother. Section 2-A of the Act V of 1962 reads:-- "2.A. 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 of possession of agricultural land on such basis shall be void, in-executable 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".
This is trite proposition of law that the person who alleges custom must prove. Burden of proof rest on his shoulder. The A most important document to discharge to onus is Riwaj-e-Aam Wajib-ul- Arz. Which is not available on the file of the case. In this case, it was the petitioner who asserted that family of the deceased was governed by the custom that the mutations of inheritance shall be sanctioned to the exclusion of daughters of the deceased. The position, therefore, which in any case springs out is that it is easy to allege the application of customary law but difficult to prove and in that event, strong evidence is required. This issue on the basis of analogy cannot be decided. I am fortified in my view by Mehr Das and another v. Munshi Ram and others AIR 1936 Lahore 920, Abdul Shakur v. Mt. Allah Rakhi and others AIR 1935 Lahore 138, Mt. Barkat Bibi v. Mohd Amin and another AIR 1935 Lah. 325 and Mst. Samon and others v. Shahu and others AIR 1935 Lah.
93. Apart from this, 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 person was governed by the custom B can easily be ignored. In absence, of an instrument in the nature of Wajib-ul-Arz and the judicial decisions, the Court cannot come to the conclusion that the parties would be governed by the custom. Reference may be made to Shamsud Din v. Mst. Jewan and others 1986 MLD 764.
7. The very important fact in this case which will surely steal the eminence is that the customary law applies only to the ancestral properties. This is common ground between the parties that the original allottee Walia, father of the petitioner, was allotted land by the Provincial Government in respect whereof the conveyance deed was executed after the death of the original allottee. Much emphasis has been laid that the mutation was rightly sanctioned to the exclusion of the daughters of the deceased and the learned District Judge has illegally interfered in the matter and thus committed illegalities and irregularities in exercise of his jurisdiction. The argument has no force.
Mutations are not instrument of title and the same also not form part of the record of right. They are sanctioned only for fiscal purpose with a view to keep the record straight. The mutation which has been C sanctioned to the exclusion of the daughters carries no sanctity in law. It is nothing but a waste paper running counter to the Sharaih by which the Muslim right holders are governed.
Reference may be made to 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 Lahore 275. After the death of the original owner, the rights of the limited owner were extinguished. Section 19-A of the Colonization of Government Lands Punjab Act of 1912 gives a definite assurance that the decisions in the matter of inheritance in respect of land held by the Provincial Government shall be sanctioned in accordance with the Shariah and the inheritance shall necessarily devolve on all the legal heirs.
Reference may be made to Mst. Began v. Mst. Bai 1983 SCMR 80. In any case this was the property self required by Walia and it was not an ancestral property. The land was originally the State land which was allotted to Walia by the Provincial Government and if this be the position, the suit-land was not covered by the customary law or the custom prevailing in the family or in that part of the area. Reference may be made to Sikandar Ali v. Allah Yar 1995 CLC Lahore 1273 and Umar Din v. Mst.
Sharifan PLD 1995 SC 686. The consent decree for all purposes was ex parte. In those proceedings, the question was neither mooted nor discussed. The ex parte decree was also challenged in the suit which has been decreed by the learned lower appellate Court. In the circumstances I feel no hesitation to hold that the parties are not governed by the custom in respect of the land detailed in the suit because for all purposes the suit-land was initially State land which was self acquired by Walia. The case of the petitioner has been scanned within the permissible limits of section 115, C.P.C.
But I have not been able to persuade myself to interfere in the judgment of the learned District Judge. Petition has no merit and the same is dismissed with costs throughout.