' SAGHEER AHMED QADRI, J.---Petitioners-plaintiffs filed suit for declaration challenging the Mutation No,2840 dated 10-4-1951 mentioning the facts that Hayyat Muhammad son of Hazar their common predecessor died on 22-10-1948 leaving behind Mst. Khair Nishan widow, Fazal Dad son and Mst.
Ghulam Sakeena daughter; that Fazal Dad got the Mutation No, 2840 dated 10-4-1951 in respect of the occupancy rights of Hayyat Muhammad deceased showing himself as the sole legal heir while excluding Mst. Khair Nishan widow and Ghulam Sakeena daughter. Present petitioners being the legal heirs of Ghulam Sakeena daughter of Hayyat Muhammad were entitled to the extent of 1/3rd share. Suit was resisted by the respondents-defendants through filing their written statement wherein they raised six preliminary objections and it was objected that as Mutation of Inheritance of Hayyat Muhammad was sanctioned in favour of Fazal Dad on the basis that Mutation in question was attested and sanctioned under section 59 of Punjab Tenancy Act, 1887 wherein occupancy rights can only be devolved upon a male legal heir of the deceased. Prayed that suit be dismissed.
2. Out of the pleadings of the parties learned trial Court framed following issues:--
(1) Whether the plaintiffs are entitled to the decree for declaration with regard to suit land and its possession against the defendants as prayed for? OPP
(2) Whether the plaintiffs have got no cause of action to bring this suit? OPD
(3) Whether the plaintiffs are estopped by their words and conduct to file this suit? OPD
(4) Whether the suit is not maintainable in its present form? OPD
(5) Whether the suit is time-barred? OPD
(6) Relief ' Parties led their respective evidence and learned trial Court while deciding Issues Nos. 1 and 2 against the plaintiffs, remaining against the defendants dismissed the suit. Feeling aggrieved plaintiffs-petitioners preferred an appeal. Cross-objections were also filed by the respondents and same were heard and the appeal was also dismissed while upholding the findings of the learned trial court vide impugned judgment and decree dated 28-1-2003.
3. It is contended on behalf of the petitioners that both the learned courts below have misapplied the law and the facts on the subject; that findings of both the learned courts below on Issues Nos.1 and 2 are result of misreading and non-reading of evidence available on record; that the law was not correctly applied nor discussed. Further contends that as the Inheritance Mutation No, 2840 was sanctioned/attested on 10-4-1951 subsequent to the amendment dated 23-1-1951 of section 59, therefore, it was not rightly sanctioned. While relying on PLD 1974 SC 210 argued that in view of the amendment the exclusion of the present petitioners through their common predecessor Ghulam Sakeena daughter of Hayyat Muhammad deceased was not lawful.
4. On the other hand, learned counsel for the respondents has vehemently opposed the arguments advanced by learned counsel for the petitioners and submitted that the amendment in section 59 was brought on 23-1-1951 whereas Hayyat Muhammad died on 22-10-1948 and at that time unamended section 59 of Tenancy Act was in field whereby only a male successor can succeed the occupancy/tenancy rights. Relies on 1996 CLC 1665 (Rehmatullah v. Mst. Azmat Bi and 2 others), 1983 CLC 57 (Khadi Khan v. Mst. Resham Jan and 2 others), 2008 YLR 650 (Ch. Muhammad Ashraf and others v. Mst. Gulshan Ara and others), 2009 M LD 917 (Muhammad Siddique and 3 others v.
Muhammad Boota and others), 2008 CLC 110 (Nighat Reaz v. Rent Controller, Muzaffarabad and 2 others), 2007 SCM R 914 ,(Begum Syeda Azra Masood v. Begum Noshaba Moeen and others), 2001 SCM R 1062 (Sarfraz v. Muhammad Aslam Khan and another) and 2008 SCM R 1711 (Wahid Bakhsh v.
District Officer (R)/Deputy Settlement Commissioner (Land) Notified Officer, Dera Ghazi Khan and others).
5. I have considered the arguments addressed by learned counsel for the parties and have gone through the record.
6. The suit for declaration was filed by the petitioners/plaintiffs covering the facts in the plaint that their common predecessor-in-interest namely Hayyat Muhammad son of Hazar died on 22-10- 1948 and at the time of his death he was survived by his daughter Mst. Ghulam Sakeena mother of the plaintiffs/petitioners, widow Mst. Khair Nishan and Fazal Dad son the predecessor-in-interest of respondents; that vide Mutation No, 2840 dated 10-8-1951 in respect of occupancy/tenancy rights owned by deceased, Fazal Dad in exclusion of Mst. Ghulam Sakeena his sister got mutated whole of the tenancy of said occupancy rights in his favour and that the mutation in question was illegal whereby Mst. Ghulam Sakeena was deprived of her share in the said inheritance. Both the learned courts below decided Issues Nos.1 and 2 against the petitioners/plaintiffs and observed that at the time of death of Hayyat Muhammad under section 59 of the Punjab Tenancy Act, 1887 the only male lineal descendant was entitled to inherit excluding all the other females including the widow.
Learned counsel for the petitioners/ plaintiffs during arguments has given much stress on the point that no-doubt deceased Hayyat Muhammad died in the year 1948 but the fact remains that impugned Mutation No, 2840 was sanctioned on 10-4-1951 subsequent to the repeal of section 59 of the Punjab Tenancy Act, 1887, which was substituted vide Punjab Act IV of 1951. In order to appreciate the arguments advanced by learned counsel for the petitioners it is beneficial to reproduce here unamended and amended section 59 of Punjab Tenancy Act (XVI of 1887).
' Unamended section 59:-- "(1) When a tenant having right of occupancy in any land dies, the right shall devolve-
(a) On his male lineal descendants, if any, in the male line of descent, and
(b) Failing such descendants, on his widow, if any, until she dies or re-marries or abandons the land or is under the provisions of this Act, ejected therefrom, and
(c) Failing such descendants and widow, on his widowed mother, if any, until she dies or re-marries or abandons the land or is under the provisions of this Act ejected therefrom, and (d)
(2)
(3)
(4)
' Amended section 59.
(1) When a Muslim tenant having a right of occupancy in any land dies, the right shall devolve on his heirs in accordance with the provisions of the Muslim Personal Law (Shariat)."
It is clear from mere, perusal of un-amended section 59 of Punjab Tenancy Act, 1887 that prior to amendment if a tenant having a right of occupancy in any land dies, his right shall devolve upon his male lineal descendant if any in the male line of descent and in case if there is no male lineal descendant then under subsection (1) Clause (b) it devolves on widow as limited owner. In the present case admittedly as pleaded by the petitioners-plaintiffs that deceased Hayyat Muhammad died on 22-10-1948 leaving behind Fazal Dad, son, as male lineal descendant, therefore, remaining two legal heirs i,e, Ghulam Sakeena daughter the predecessor-in-interest of the petitioners-defendants and Mst. Khair Nishan his widow were rightly excluded at the time of attestation of impugned Mutation No, 2840 dated 10-4-1951. The arguments advanced by learned counsel for the petitioners-plaintiffs that no-doubt deceased Hayyat Muhammad died in the year 1948 prior to the amendment but the impugned mutation was attested in the year 1951 subsequent to the amendment, therefore, the inheritance mutation must have been attested keeping in view the substituted section 59 of the Act, ibid. This argument, however, is without any force in view of section 6 of General Clauses Act, 1897 wherein it has specifically been provided as under:- "Effect of repeal.---Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not----
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation. Liability, penalty, forfeiture or punishment as aforesaid; ' and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
It is now settled principle of law that any substantive law if repealed or substituted until and unless specific intention is shown in the subsequent legislation its effect shall not always be taken as retrospectively from the date of its application. In this respect a judgment directly on the subject whereby the amendment in section 59 of Punjab Tenancy Act, 1887 was held as retrospective in operation, can be referred as PLD 1962 W.P. (Lahore) 931 (Muhammad Shafi v. Mehr Bhola and others). The arguments advanced by learned counsel for the petitioners are also without any force in view of the fact and law that as soon as a person dies his inheritance automatically opens and devolves upon the person entitled for it. Admittedly, deceased Hayyat Muhammad died in 1948, therefore, his inheritance opened at that moment of his death and as at that time unamended section 59 of Punjab Tenancy Act was in field, therefore, his occupancy rights according to unamended provisions devolved upon his male lineal descendant Fazal Dad excluding remaining two i,e, daughter and widow. Mere attestation of mutation subsequent to the amendment in section 59 of the Act ibid makes no difference in view of section 6 of General Clauses Act as earlier discussed. Resultantly, concurrent findings of both the learned courts below on Issues Nos.1 and 2 are lawful and justified, thus cannot be interfered with while exercising revisional jurisdiction. As far as the findings of the learned appellate court in respect of Issue No, 5 are concerned, that relates to limitation and no arguments were advanced by learned counsel for the petitioners in this respect, therefore, these are also upheld. No merit in this revision, same is hereby dismissed.