The petitioner Mansab Mai through this revision petition, assails the judgment dated 03.10.2007, passed by the learned Additional District Judge Multan whereby the appeal filed by the respondents against the judgment and decree dated 21.06.2006 of Learned trial Court, was set aside and the case was remanded back to the learned trial Court for framing of additional issue and deciding the controversy a fresh.
2. Briefly stated facts as those emerge out of this petition are that Mansab Mai petitioner filed a suit for declaration, claiming joint ownership in possession, of the disputed property to the extent of 1/5 share alongwith respondents/defendants as legal heirs of Ghulam Rasool deceased being her real daughter and for setting aside disputed mutation, of Inheritance No. 387 dated 27.04.1945 of Mauza Salay Mahay and Mutation No. 106 dated 11.01.1946 Mauza Terpai, Multan sanctioned in favour of Respondent/Defendant No. 1 and predecessor-in-interest of Respondents No, 2 to 4 whereby she was deprived from her rights of inheritance.
3. The suit was resisted by way of filing written statement and upon divergent pleadings of the parties the learned Civil Court framed as many as eleven issues. The parties led their respective evidence whereafter vide judgment and decree dated 21.06.2006 passed by the learned Civil judge Multan, the suit filed by Mansab Mai was dismissed which was assailed before the learned Additional District Judge who vide the impugned judgment dated 3.10.2007, remanded the case back to the learned trial Court for deciding the same a fresh after training following additional issue.
"Whether the family of the.parties was governed by customary law in the matters of inheritance at the time of death of Ghulam Rasool the predecessor of the parties, if so with what effect ?OPD"
4. The respondent also filed cross-objection to the appeal praying for dismissal of the suit, which were also disposed of through the implicated judgment.
5. It is inter alia contended by the learned counsel for the petitioner that the learned Additional District Judge proceeded to remand the case by framing an additional issue without any legal justification and that instead of remanding the case he should himself had decided the appeal on merits and the impugned judgment and decree of the learned Civil Court should have been reversed in view of law laid down by the Honourable Supreme Court which was followed by this Court in numbers of cases for the 'simple reason that sufficient evidence on the record was available. He thus prays that this Court should examine the entire evidence and after setting aside both, the judgments of learned Courts below proceed to allow this civil revision, and the suit filed by the petitioner may be decreed declaring that at the time of death of deceased Ghulam Rasool the father of Mst. Mansab Mai petitioner, he was not governed by customary law; and that on the contrary Islamic law of inheritance being applicable shall have every right to get his due share in the inherited property.
6. The learned counsel for the petitioner has referred to the provisions of The North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935. The West Punjab Muslim Personal Law (Shariat) Application Act 1948 Punjab Act, IX of 1948, (as amended by Act, XI of 1951).
To canvass that the Muslims are not governed by the customary law rather notwithstanding any rule or custom etc: they are governed by Muslim Personal Law/Shariat in cases where the parties are Muslim.
Further submits that in such matters limitation would not run against co-sharer as possession of legal heirs would be deemed to be of legal heirs of deceased predecessor. Reliance is placed upon 2008 SCM R 905, Muhammad Anwar and 2 others vs. Khuda Yar etc. PLD 2006 S.0 322 Mst. Janntan and others vs. Mst Taggi through L.Rs and others, (2005 SCM R 1281) Khan Muhammad and others vs. Ghulam Farid through L.Rs and others.
7. Conversely the petition is resisted with vehemence by the learned counsel for the respondents. It is inter alia contended that this petition is not maintainable as the impugned judgment is in fact an order passed under Order XLI, Rule 23 CPC which is appealable under Order XLIII, Rule 1(U) CPC and before filing the appeal notice to the respondents under the said rate was mandatory. The petitioner has erred in filing the present civil revision against remand order and also failed to observe the mandatory provisions of Rule 43 regarding prior notice to the respondents. The civil revision is not maintainable because the impugned order is not covered by the (case decided) reference is made to KLR 1185 C.0 2008 and 1985 CLC 1112. Further submits that the petitioner is estopped to file the subject revision petition, she cannot be allowed to take contradictory pleas as on the one hand, she assailed the judgment and decree of learned lower Court before the learned District Judge on the grounds of non-framing of specific issues regarding non-applicability of customary law, whereas, on the contrary the learned counsel for the petitioner is submitting that no specific issue was required to be framed. Adds that the learned trial, Court decided the question, of custom but without framing any issue to that effect which is very material adds that the Honourable apex Court of the country has held that when the pleadings were never perused with diligent application of mind by the trial Court and the material issue clinching the controversy between the parties could not be framed, the remand of the case to the trial Court was justified to avoid the miscarriage of justice and to save the parties from being prejudiced. Reliance is placed on 2000 SCM R 1124, 2000 CLR 1731, PLD 2003 S.0 184. They have thus prayed that the order of remand passed by the learned appellate Court being legally justified, to remove the technical error of non- framing of the material issue on real controversy between the parties is sustainable.
7. Arguments heard. Record perused.
8. Admittedly the petitioner herself in her appeal before the learned Additional District Judge assailed the judgment and decree passed by the learned Civil Judge on the ground of non- framing of specific issue with, regard to applicability of customary law or Islamic Law of inheritance and in fact the learned Additional District Judge has allowed appeal by agreeing with the contention raised by the petitioner before him. Now it is well-settled law that nobody can be allowed to approbate and reprobate in the same breath. The contradictory pleas are being taken on behalf of the petitioner which is not permissible under the law. The case law cited at bar by the learned counsel for the petitioner is of not much help to him in view of peculiar facts and circumstances of the case whereas on the other hand the case law cited on behalf of the respondents does apply, however without commenting upon the merits of the case, in view of peculiar facts and circumstances of the case, arguments led by the learned counsel for the parties and minute examination of the entire record as well as judgments cited at bar, I am of the view that the learned Additional District Judge proceeded to pass the impugned order in exercise of the jurisdiction vested in him, under the law. No illegality, or material irregularity misreading or non- reading worth mentioning has even been pointed out, I am, not, therefore, inclined to interfere in the well-reasoned judgment of the learned Additional District Judge which otherwise is perfectly in accordance with the facts and law applicable to the case. This petition, therefore, being devoid of any merit is hereby dismissed. No order as to costs.