' ATTAULLAH KHAN, J.--- This revision petition is directed against the concurrent judgments and decrees of the learned two Courts below dated 26-5-2004 and 6-5-2005 respectively, vide which the declaratory suit of Mst. Totia Jana etc. Plaintiffs/respondents against Mst Awal Jana etc. Defendants/petitioners was decreed.
2. Briefly stated facts of the case giving rise to this revision petition are that the plaintiffs/respondents had sued the defendants/ petitioners for a declaration to the effect that they being the legal heirs of Rahim Gul, Kabul Darray Khan and Sain Khan in the property fully described in the plaint, the Mutation No,6102 attested on 6-12-1930 and subsequent Mutation Nos.6529, 6530, 9, 19736 and 411 etc; along with all the entries in the periodical record are void, against the facts and thus ineffective upon their rights.
3. Along with the declaration, the plaintiffs also sought permanent injunction that the defendants be restrained from further alienation of the suit property through sale, gift, exchange or any other mode and also from attestation of gift Mutation No,411 in favour of defendants Nos.5 to 8.
4. The suit was contested by the defendants who filed written statement. The pleadings of the patties gave rise to the framing of as many as thirteen issues including the relief.
5. The learned trial Judge on scanning the record in view of evidence brought, on record and hearing pro and contra arguments decreed the suit of the plaintiffs as prayed for whereagainst appeal of the defendants also proved abortive, vide judgments and decrees mentioned above.
6. Still feeling aggrieved, the defendants/petitioners have assailed the aforesaid concurrent findings of the learned two Courts below through this revision petition.
7. Learned counsel for the petitioners vehemently criticized the impugned judgments and decrees of the Courts below on the following grounds:-- ' Firstly; that the learned lower appellate Court has failed to appreciate the legal position that on filing appeal before it, the entire matter including the applicability of Shariat Application Act 1935 was reopened; ' Secondly; that while deciding application dated 31-1-2005 for impleadment of Sahib-ud-din etc; issue No,5 was not taken into consideration by the appellate Court; ' Thirdly; that both the Courts below have failed to give any finding on issues Nos.4 to 6 and have not discussed the evidence on record relating to issues Nos.3 to 8; ' Fourthly; that the findings of both the Courts below on issues Nos.1, 2 and 12 are not correct, because Sain Khan had died in the year 1930 and his inheritance Mutation No,61'02 was attested on 6-12-1930 according to the Customary Law and as per Shariat Application Act No,VI of 1935 on the said date, i.e. 6-12-1935, the daughters of Sain Khan deceased had no cause of action; ' Fifthly; that the three sons of Sain Khan deceased had obtained possession of the suit property as owners under the Customary Law and not as co-sharers, therefore, the findings of the, Courts below in this regard on issue No,2 are erroneous and liable to be set at naught; and lastly ' Sixthly; that both the Courts below have failed to properly consider the agreement deed dated 25- 7-1998 (Ex.DW.1/2) regarding the family settlement and also have wrongly considered Mutation No,411 attested on 25-7-1997.
8. On the other hand, learned counsel for respondents defended the impugned judgments and decrees of the Courts on the grounds that the same are correct being based on sound appreciation of evidence brought on record and need no interference.
9. I have carefully examined the entire record of the case and anxiously considered the arguments of the learned counsel for the parties.
10. Perusal of the record reveals that Sain Khan was admittedly the owner of the suit-land who left behind Rahim Gul, Kabal Khan, Daray Khan sons, and Mst. Totia Jana, Khan Bibi and Wazir Bibi as daughteRs, It is also an admitted fact that during the days of his death, customary law of inheritance was enforced, therefore, the property of Sain Khan deceased was devolved upon only his said three sons, while his daughters named above were excluded from his legacy. However, the Muslim Personal Law (Shariat) Application Act, 1935 was given retrospective effect vide which all the legal heirs of the deceased including ,daughters were held entitled to such legacy and, therefore, Sain Khan was deemed to have been died under the domain of Muslim Law irrespective of the fact that he died prior to the promulgation of the aforesaid Act. Accordingly, the, depriving of females from the legacy of their porosities under the customary law ceased to remain in force.
11. Though under the customary law those females who were married at the time of their propositus were excluded from his legacy, but since there is not an iota of evidence on record to prove that the plaintiffs/respondents were married at the relevant time, therefore, both the Courts below have rightly held them entitled to their shares in the legacy of their deceased father Sain Khan to which no exception can be taken by this Court at this stage.
12. As far as limitation is concerned, the Courts below have correctly reached to the conclusion that the claim is within time for the reason that the time would be counted from the date of mutation.
Reference is given to 1998 SCMR 996, PLD 2004 Lah. 1 and this Court judgment in Civil Revision No,54 of 2005 decided on 10-6-2010.
13. Consequently, the impugned judgments and decrees being based on sound appreciation of materials brought on record are accordingly upheld.
14. Furthermore, the concurrent findings based on facts correct appreciation of evidence brought on record in favour of the plaintiffs/ respondents cannot be set at naught by this Court in exercise of its revisional jurisdiction under section 115, C.P.C. , unless it is proved and established through cogent and convincing evidence that the same are perverse, fanciful or erroneous in view of the dictum handed down by the Apex Court in the cases reported as 2000 SCMR 346, PLD 1994 Supreme Court 291 and PLD 2002 SC 293).
15. As a corollary to what is discussed above, I find no substance in this revision petition which is accordingly dismissed leaving the parties to bear their own costs.