This revision petition is directed against the judgment and decree dated 03/04/3003 passed by the District Judge/Zilla Qazi. Buner whereby he partially accepted the appeal filed by the defendant/petitioner Amir Haider and others defendants against the judgment and decree dated 08/11/2001 of the trial Court.
2. The facts, briefly stated, are that on 03/09/1997 Mst. Taha Plaintiff/Respondent No. 1 being widow and Mst Mash Pari and Mst. Jan Pari Plaintiffs/Respondents No. 2 and 3 being daughters of Sherin filed a declaratory suit challenging the inheritance mutations of their predecessor Sherin attested in favour of defendant/Petitioner No. 1 as uncle of Sherin and Azeemullah and Raidullah predecessors of Defendants/Respondents No. 17 to 25 being nephews of Sherin. It was alleged in the plaint that the property fully described in the heading of the plaint is their ownership being heirs of Sherin and is in their possession. Defendant/Petitioner No. 1 and Defendants/Respondents No. 13 to 24 herein allegedly stopped payment of produce on which the revenue record was contacted and it was found that the suit property has been mutated in favour of Defendants No. 1 to 6 and predecessor of Defendants No. 7 to 13 collusively which is wrong they claimed that their predecessor Sherin was owner of 10 "Sari Daftar" (a local measurement scale of landed property) who died during the rule of Ex-Ruler of Swat and they were left the only heirs. The aforesaid defendants collusively and fraudulently entered the said legacy in their names in the recently concluded first settlements although they were not the legal heirs of Sherin. Sirbiland Defendants/Respondent No. 52 also recorded some of the legacy of Sherin in his favour but he voluntarily abandoned the said legacy in their favour. Sherin died in 1943 the Plaintiff/Respondent No. 1 a parda nasheen lady while Respondents No. 2 and 3 were minor when predecessors of Defendants No. 1 to 13 with their inter-se collusion executed a deed on 01/03/1948 committed themselves before Tehsildar Gagra as stop gape arrangement for payment of maintenance to them as produce of the disputed property (legacy of Sherin) but now they have stopped the produce and have denied the title of the plaintiffs. It was further alleged that neither the said 10 Sari Daftar legacy of Sherin has been sold to the aforesaid defendants nor alienated to them in any manner and being parda nasheen and minor ladies they were unaware of the revenue record, thus claimed correction of the same for recording their names in the ownership column. They also prayed for perpetual injunction against the defendants. Defendants No. 14 to 34 were also arrayed as defendants being purchasers of the some portion of the disputed property. Since their title denied a month back, therefore, cause of action accrued to them. Thus they have approached the civil Court for the redressal of their grievance.
3. In their joint written statement the defendants have raised a number of preliminary objections including limitation and adverse possession They supported the correct entries in the revenue record and it was contended that the predecessor of the Plaintiffs/Respondents No. 1 to 3 was the owner of two Sari Daftar which was sold by him in his life time and they claimed exclusive possession as hereditary owners for the last fifty years. Regarding the maintenance it was contended that on the ground of sympathy they had paid maintenance to the Plaintiffs/Respondents No. 1 to 3 and now they are getting its wrong benefit. The trial Court framed as many as 16 issues including the relief. Both the parties adduced their respective evidence which includes the revenue officials. On the close of the evidence, the trial Court vide judgment and decree dated 08/11/2001 granted a decree in favour of the Plaintiffs/Respondents No. 1 to 3 to the extent of their shari share in the legacy of Sherin i.e. Mst. Taha widow was given 3/24 shares, Mst.
Mash Pari and Mst. Jan Pari daughters of Sherin were granted 16/24 shares collectively and the Petitioner/Defendant No. 1 who is uncle of Sherin was granted 5/24 shares as residuary.
4. Feeling dis-satisfied with the above judgment and decree of the trial Court, defendant/petitioner and others have preferred joint appeal before the lower Appellate Court and vide judgment and decree dated 03/04/2003 the same was partially allowed to the effect that the decree for shari shares in 10 Sari Dafar legacy of their predecessor Sherin was kept intact, however, the sale mutations which were also challenged was kept intact as the shares of the plaintiffs as noted above could be realised from the lands of the vendors who were granted possession of legacy of Sherin.
5. Only Amir Haider Defendant No. 1 who is the uncle of Sherin predecessor of Plaintiffs/Respondents No. 1 to 3 and was granted 5/24 shares in the legacy of Sherin feeling dis-satisfied has moved the instant revision petition. The rest of the defendants/respondents have not filed any appeal/revision being satisfied with the findings of the lower Appellate Court through the impugned judgment and decree of District Judge, noted above.
6. I have heard the learned counsel for the parties and have also gone through the record with their able assistance.
7. The only point agitated before me is that at the time of death of Sherin local Rewaj was holding the field where under female heir was not entitled to get share in the legacy and the same devolved only upon male members of distant relation and the women-folk successors were entitled only for maintenance. The N.W.F.P. Muslim Personal Law (Shariat) Application Act, 1962 terminating the limited estate under customary law was extended to Buner being part of PATA vide Regulation No. 1 of 1976 on 15/01/1976 and by then the legacy of Sherin was already devolved upon male distant legal heirs Defendants No. 1 to 13 in the suit and they were rightly recorded owners of the said property in the first settlement carried out in Buner District concluded in 1978.
8. This is not disputed that Plaintiffs/Respondents No. 1 to 3 are the widow and daughters of Sherin.
Though they had denied that Sherin was the owner of 10 Sari Daftar at the time of his death as it was alleged in the written statement that Sherin was the owner of 2 Sari Daftar which was sold by him in his life time but the plaintiffs produced Ex.PW4/1 which is the judgment regarding the distribution of 10 Sari Daftar as legacy of Sherin. The father of petitioner was granted 5 Sari Daftar alongwith a house and Hujra. Azeemullah his brother Mehmood were granted two and a half Sari Daftar and Raidullah his brother Hakim Shah were granted two and a half Sari Daftar alongwith a house and one house was kept joint between all of them. They expressed their willingness over the aforesaid shares and the property was divided accordingly. This deed was attested on 13/04/1949.
Plaintiff/Respondent No. 1 approached the then Ruler of Swat State through an application that the legacy of her husband has been taken over by the aforesaid five persons and they have denied payment of maintenance to her. It was prayed that in response of 10 Sari Daftar legacy of her deceased husband should be given to her as her shari share and they should pay her maintenance. The Ex-Ruler of Swat passed an order on 01/07/1964 to the effect that husband of the applicant has died and his property has been taken over by the distant relatives, the maintenance for the applicant already fixed should be recovered from them. There is another deed Ex.PW5/3 submitted on 01/03/1948 whereby Plaintiff/Respondent No. 1 had a complained that 10 Sari Daftar of her husband has been taken over alongwith other house-hold articles amounting to Rs. 20,000/- has been divided in themselves and she alongwith minor daughters have been deprived of any share in the legacy. She prayed for the legacy of their predecessor. The father of the petitioner alongwith others who partitioned the legacy of Sherin amongst themselves recorded their joint statement committing themselves for payment of 10 maund maize, five maund barley and five maund wheat shall be paid to Plaintiffs/Respondents No. 1 to 3 being widow of Sherin. Each of them thumb impressed the said statement on 01/03/1948. All these documents were either accepted or could not be rebutted by the defendants. These established facts are sufficient that plaintiff/ respondent never abandoned the claim of shari share in the legacy of their predecessor.
9. In identical circumstances question of adverse possession was elaborately interpreted by this Court in a case 'Mst. Sahib Jan Bibi and others Versus. Walidad and others" reported in PLD 1961 (W.P.) Peshawar 9 wherein it was observed as follows:-- "If female heirs of a deceased, Muhammadan, namely, the widows and the daughters had been receiving produce from the land in lieu of their share of the income of the deceased's property, such female heirs will be deemed to have succeeded to the property with the deceased's sons and they will be deemed to be in joint possession with the latter through receipt of their share of produce. The omission of their names from the revenue-record alone would not divest them of the right which had vested in them by succession. The sons' possession, on that evidence, would not be adverse to them. They would be held to have entered into possession as co-heirs with them. In the payment of grain to the female heirs would lie the admission of their right in the estate".
10.Thus the two Courts below have rightly rejected the defence of adverse possession taken by the defendants/petitioner herein.
11.The defence taken by the petitioner that Sherin predecessor of Plaintiffs/Respondents No. 1 to 3 had died in the domain of local custom whereunder female heirs were not entitled for landed property as share in legacy and the extension of N.W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 as amended by Acts XI of 1950 and II of 1953 in 1976, the question of inheritance concluded under the local custom cannot be reopened. N.W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 was examined by this Court in a case 'Mst. Rehmania and others Versus Mst. Maqbula and others" reported in PLD 1956 (W.P.) Peshawar 115 wherein it was held that on the insertion of Sections 3(2) and 4 was given retrospective effect and the limited estate of female heir of a deceased was held entitled to get shari share as the Muslim Personal Law (Shariat) Application Act, 1935 was retrospective effect. It was observed as follows:-- "When the question of succession arises after the addition of subsection (2) to Section 3, the Act would apply, no matter the interest to which it related had terminated before the coming into force of Section 4 or the death had taken place before 1935. Therefore, the question of succession arising in 1951, to the limited estate of a daughter who had married in 1943, and who herself had succeeded, under custom and under a will, to her father who had died in 1912, was to be determined by going back to 1912 and finding out such father's Muhammadan Law heirs".
12.In the instant case the aforesaid N.W.F.P Muslim Personal law (Shariat) Application Act, 1962 was extended to Buner in 1976 as noted above and the first settlement was carried out in the area in 1978 wherein the legacy of Sherin was recorded in favour of the petitioner and other defendants in deprivation of Plaintiffs/Respondents No. 1 to 3 which has provided a fresh cause of action to the Plaintiffs/Respondents No. 1 to 3 which came into the plaintiff knowledge a month prior than institution of suit and even otherwise Article 112 of the Limitation Act has been declared un-Islamic the claim of the Plaintiffs/Respondents No. 1 to 3 is found not being hit by any law. The plaintiffs/respondents ware regularly paid maintenance and on its stoppage within a month the suit was filed and it was admitted by the petitioner alongwith other defendants that they were paying the plaintiffs' maintenance due to sympathy, thus conceded the payment of maintenance to them which is evident from the documents placed on record noted above was paid to them in lieu of the legacy of their predecessor Sherin which was taken over by them as distant relation.
13.Only the petitioner has expressed his dis-satisfaction over the judgment and decree of the lower Appellate. Court while the rest of the defendants/judgment-debtors including those who took over half of the legacy of Sherin the predecessor of the Plaintiffs/Respondents No. 1 to 3 have not agitated any grievance over the partial decree of the lower Appellate Court which is impugned herein.
14.The crux of the above discussion is that this revision is found without any substance which is hereby dismissed with costs throughout.