' CH. SHAHID SAEED, J.---Through the instant civil revision petitioners have challenged the impugned judgment and decree dated 3-7-2008 passed by learned Additional District Judge, Depalpur District Okara by way of which appeal filed by the respondents was accepted and their suit for declaration along with permanent injunction was decreed.
2. Brief facts of the case as enumerated in the plaint are that parties are successors-in-interest of Musa Khan and Ganj Bakhsh. A piece of land measuring 2030 Kanals 18 Marlas in Khewat Nos.14 and 576 Kanals 17 Marlas in. Khewat No,15, situated at Mauza Amlayke Suhag, was owned by Musa Khan and Ganj Bakhsh and after their death, Noor Muhammad, Kalay Khan, Nehal Khan, Aman, Khan, Jahangir Khan, Jamay Khan, Kamal Khan, Ilyas Khan sons of Ganj Bakhsh and Raiban Bibi daughter of Ganj Bakhsh remained under possession of the same. The afore-said land remained in possession of the afore-mentioned persons as adverse possession, but after the death of Musa Khan and Ganj Bakhsh, the suit land was devolved upon their legal heirs including Raiban Bibi.
Raiban Bibi is the predecessor-in-interest of plaintiffs. As per contention by the plaintiffs Raiban Bibi was owner to the extent of 208 Kanals 8 Marlas, out of the afore-said property. All the affairs of suit land were being dealt with by the brothers of Raiban Bibi for the reasons that she was simple villager and illiterate woman. It has been further alleged in the plaint that brothers of Raiban Bibi with the collusion of revenue staff got mutated the suit land vide Mutation No,137 dated 17-6-1950 and thereafter, vide Mutation No,62 sanctioned in the year 1963. In the year 1957, Raiban Bibi accompanied by her brothers filed a petition before the Deputy Custodian which was accepted, vide order dated 12-3,-1966 and later on it was confirmed by the learned Custodian, Evacuee Trust Property, vide order dated 1-2-1973. Raiban Bibi died in the year 1988, where-after her successor-in- interest i.e, plaintiffs have claimed the suit property, through the suit for declaration to the effect that Mst. Raiban Bibi was initially owner in possession of the same. The plaintiffs have also challenged the validity of Mutation No,137 dated 17-6-1950 and subsequent mutation 1011 dated 8- 11-2000, contending that those were against law and facts, void, in-operative and ineffective qua their rights. They have also prayed for correction of entries in the register of rights since 1941-1942 and implementation of the orders dated 12-3-1966 by Deputy Custodian, Evacuee Trust Property, North Zone, Lahore Exh.P.1 and Custodian Evacuee Trust Property, Punjab Lahore Ex.P.2.
3. Defendants appeared before the learned trial court and contested the suit by tooth and nail while submitting their written statement. Out of the divergent pleadings of the parties learned trial court framed necessary issues including relief. Both the parties got recorded their oral as well as documentary evidence. Learned trial court after hearing the arguments of both the sides at length ultimately dismissed the suit of the plaintiffs vide judgment and decree dated 6-9-2005. Plaintiffs/ respondents preferred an appeal which was accepted by the learned 1st Appellate Court on 3-7- 2008 and their suit was decreed. Feeling aggrieved by the said judgment and decree defendants/petitioners have filed, the instant civil revision.
4. Learned counsel for the petitioners contends that the impugned judgment and decree passed by the learned appellate court are against law and facts and also based upon mis-reading and non-reading of evidence; that in the plaint respondents have claimed in Paragraph No,4 of the plaint that they are entitled of the property in dispute on the basis of adverse possession but they have not produced any-evidence to prove the said plea. Even the said plea was not available to the respondents because since 1950 petitioners are in possession of the property in dispute. Further argued that honourable Supreme Court of Pakistan has declared adverse possession against the injunctions of Islam. Further argued that the issue of inheritance was not involved in the matter because the predecessor in interest of the parties was illegal occupant over the property in dispute and the same was an evacuee property, therefore, question of inheritance does not arise. Learned counsel further maintained that Mst. Raiban did not challenge the mutation in dispute during her life time. Further argued that learned Supreme Court of Pakistan has observed in so many citations that if the sister/original claimant does not file the suit in her life time, her legal heirs cannot claim the same, hence, in the light of said observation the suit of the respondents was not maintainable.
Further argued that the suit filed by the respondents was hopelessly barred by time. Mutation in dispute was challenged after more than 50 years. That an objection with regard to limitation was duly taken in the written statement but the learned Appellate Court without considering the said objection has decreed the suit of the respondents. Further argued that P.W.2 has admitted in his statement that his mother had the knowledge about the said mutation but she did not challenge during her life time. Further maintained that at the time of alleged mutation daughters were not given share out of inheritance of their father in accordance with the customary law. That Mst.
Gamman was also the daughter of Ganj Bakhsh but she did not challenge the mutation in dispute.
Learned counsel further argued that initially the petitioners were illegal occupants over the property in dispute; that they filed an application to the Deputy Custodian which was allowed and they were declared as lawful owners of the property in dispute and the said decision was affirmed by the Custodian. Further states that predecessor in interest of the respondents did not agitate before the Deputy Custodian or Custodian that she was also owner of the property in dispute.
Lastly learned counsel for the petitioners has relied upon 2002 SCM R 1330, 2011 SCM R 808, 2011 SCM R 480, PLD 2011 Supreme Court 657 and 2007 SCM R 480.
5. On the other hand learned counsel for the respondents maintained that the claim of the respondents was not on the basis of adverse possession because when the application was filed before the Deputy Custodian she was a party in the said application and she was also declared as owner of the property in dispute. Further maintained that in the periodical record the name of Mst.
Raiban Bibi is mentioned as co-sharer in the property in dispute. Further argued that learned Appellate court has rightly decided the suit in favour of the respondents.
6. Arguments heard. Record perused.
7. The main stance of the petitioners was that Mutation No, 137 was sanctioned in favour of the petitioners on 17-6-1950 in which name of Mst. Raiban Bibi predecessor in interest of the respondents was not mentioned and after the said mutation Mst. Raiban Bibi remained alive more than 37 years but she did not challenge the said mutation during her life time. The second contention of the petitioners was that the suit was filed in 2001 after 13 years of the death of Mst.
Raiban Bibi which is badly barred by time. The said contentions of the petitioners are without substance because in the periodical record annexed with the file the name of Mst. Raiban Bibi is existing as co-sharer in the property in dispute. Undisputedly, petitioners along with Mst. Raiban Bibi filed an application under section 22 of Act XII of 1957 before the. Deputy Custodian on 16-12- 1.965 to .The effect that they be declared as lawful owners of the property in dispute which was accepted by the Deputy Custodian vide order dated 12-3-1966 and the said decision was affirmed by the Custodian. In both the decisions (Exh.P.1 and Exh.P.2) predecessor in interest of the respondents was also declared as lawful owner of the property in dispute. It is also an admitted position that the said decisions are still in field and never were challenged by either of the party. If the predecessor in interest of the respondents was not entitled of the property in dispute according to customary law then why the petitioners did not agitate this matter before the custodian or Deputy Custodian. The main stance of the petitioners is that the name of Mst. Raiban Bibi is not mentioned in the Mutation No,137 sanctioned in favour of the petitioners after the partition, has no substance because after the decision of the Custodian the said mutation has no value in eye of law. Moreover it is settled law that mere mutation does not create any right in favour of the party unless and until the same is validated by the competent authority. At that time the competent A authority was Custodian who declared Mst. Raiban Bibi as lawful owner of the property in dispute including petitioners. Moreover after the decision of Deputy Custodian and Custodian on the application jointly filed by all the legal heirs of Ganj Bakhsh including Mst. Raiban Bibi petitioners are estopped to take an alternate plea with regard to the customary law.
8. The other contention of learned counsel for the petitioners was that matter of inheritance is not involved in the matter because the predecessor in interest over the parties namely Ganj Bakhsh was illegal occupant of the property in dispute. I am not in an agreement with the contention raised by learned counsel for the petitioners because undoubtedly Ganj Bakhsh was illegal occupant over the property in dispute and after his death the property in dispute was simply transferred in favour of his legal. Heirs in the capacity of illegally occupants. The said contention is not helpful for the petitioners because issue which has to be resolved by this court is whether Mst.
Raiban Bibi was entitled of the property, in dispute or not in the light of decisions made by the Deputy Custodian and Custodian. In the light of Exh.P.1 and Exh.P.2 predecessor in interest of the respondents has been declared lawful owner of the property in dispute and her name is existing in all the Jamabandies prepared after the said decisions. Therefore, respondents being her legal heirs are entitled to get the share from the B property in dispute.
9. One of the contention of learned counsel for the petitioners was that when Ganj Bakhsh died at that time customary law was prevalent in the society according to which only male members of the family were entitled to get the property left by his deceased 'father. The said contention has no force because Ganj Bakhsh was illegal occupant over the property in dispute. Hence customary or Shariat , law was not applicable in the matter in issue.
10. The other contention of the learned counsel for the petitioners was that respondents have taken a specific plea of adverse possession in Paragraph No,4 of their plaint but they have failed to prove the same. Learned counsel for the petitioners has misinterpreted the said paragraph because after perusal of said paragraph it reveals that since their forefathers they were illegal occupant over the property in dispute. Respondents have not claimed the property in dispute on the basis of adverse possession. The said contention is also repelled being devoid of any force.
11. This pertinent to mention here that in whole the periodical record the name of Mst. Raiban Bibi as co-owner is existing. The respondents have specifically mentioned in their plaint that they came to know about the impugned sale in the year 2000 when the petitioners got executed another Mutation No,1011 after the decision of honourable Supreme Court of Pakistan. Admittedly the petitioners came to know about the impugned sale in 2000 and they tiled the suit in 2001 which was within time.
12. So far as the judgment and decree passed by the learned 1st Appellate Court is concerned.
Although learned Additional District Judge Depalpur has not taken into consideration some material aspects of the case but has rightly observed that at the time of death of Ganj Bakhsh inheritance was not being devolved in accordance with Muhammad Law of inheritance and that the same was being devolved in accordance with custom. When admittedly Ganj Bakhsh was illegal occupant over the disputed property and after his death the property in dispute was transferred in favour of all the legal heirs being illegal occupants including predecessor in interest of the respondents. Thereafter in the initial Mutation No,137 dated 17-6-1950 the name of Mst.
Raiban Bibi was, excluded with mala fide intention by the petitioners. The land in dispute was an evacuee property, hence customary law was not applicable on the said property. The customary law was only applicable on the inherited property. Learned Appellate court has rightly declared Mutation No,137 dated 17-6-1950 as well as Mutation No,1011 dated 18-11-2000 as void ab initio.
13. One of the contention of learned counsel for the petitioners was that already the matter in issue has been decided up to the Hon'ble Supreme Court of Pakistan and Mst. Raiban was also party in the said suit, therefore, the second suit regarding the same property was not maintainable. The said contention is also without any force because the earlier suit was regarding another property.
The controversy in the said matter was also different. When the subject matter in both the suits were different then provisions of Order II Rule 2, C.P.C. As well as section 11, C.P.C. Were not attracted.
14. The last contention of learned counsel for the petitioners was that there was another daughter of Ganj Bakhsh namely Mst. Ghamman but she had not claimed her share due to customary law, hence, Mst. Raiban was also not entitled to get share from the property in dispute in the same scenario. It is pertinent to mention here that in the pedigree-table given in the plaint, name of Mst.Ghamman is not mentioned, which paragraph has been admitted by the defendants in their written statement. It is settled law that something admitted in the pleading needs not to be proved.
The said contention of learned counsel for the petitioners is also baseless and unfounded. Learned counsel for the petitioners has failed to point out any illegality or material irregularity in the impugned judgment and decree passed by the learned Appellate Court. The citations referred to by learned counsel for the petitioners are different and distinguishable from the facts and circumstances of the case in hand, hence these are not helpful for the petitioners.
15. For the foregoing reasons, there is no force in the instant civil revision and the same is dismissed with no order as to costs.