' IJAZ AHMAD, J.---Gahi son of Ghulam Hussain, the predecessor of the parties died in the year 1943. He was survived by Ghulam Fatima the daughter, the predecessor of petitioners, Sher Muhammad the son, the predecessor of the respondent No,1 (i) to (x), Mst. Pathani the daughter respondent No,2 and Mst.Bakhti now deceased, the widow. He owned land measuring 38-kanals in mauza Chore Hatta, Kot Haibat and 17-kanals 15-marlas of land in mauza Imrani in Tehsil and District D.G. Khan. Vide Mutation No,2508, sanctioned in 13-6- 1945 (Exh.P-1), the first mentioned property was transferred in favour of Sher Muhammad, the son, only. Vide Mutation No,3697 sanctioned on 16-9-1964 (Exh.P-2), the property 2nd mentioned was transferred in favour of all the legal heirs. Ghularn Fatima, the predecessor of the petitioners instituted a suit for declaration and for setting aside the Mutation No,2508 on 3-9-1976 claiming that Gahi, the deceased was governed by the Sharia law in the matter of inheritance, therefore, she being the daughter, is also entitled to inherit the property. The suit was decreed in favour of Ghulam Fatima, the daughter vide decree dated 28-6-1987, passed by the learned Civil Judge, D.G. Khan, Sher Khan, the predecessor of respondent No,1(i) to (x) instituted a suit for declaration and for setting aside the Mutation No,3697 claiming that deceased Gahi's Khosa tribe was governed by the custom, therefore, he was the sole heir of the property of the deceased. The suit was dismissed by the learned Civil Judge D.G. Khan vide decree dated 28-6-1987. Sher Muhammad preferred Appeals No,165/13 of 1988 in Ghulam Fatima's suit and Appeal No,166/13 of 1988 in Sher Muhammad's suit, against both the decrees.
Through a consolidated judgment and separate decrees dated 12-7-1988, the learned Additional District Judge, D.G. Khan, allowed the appeals and held that Gahi's Imrani Khosa tribe was governed by the customary law; the petitioners filed C.R. No,591/D of 1988 on 8-8-1988 in this Court. Inadvertently, only the decree passed in Appeal No,165/13/1988 was challenged, whereas the decree passed in Appeal No,166/14/1988 was not challenged. However, the petitioners submitted the certified copy of the decree on 26-2-1992. This Court vide judgment dated 6-3-2003, dismissed the revision petition in totality and it was held that copy of the decree passed in Appeal No,166/13 of 1988 was submitted on 26-2-1992 i,e, after the elapse of almost four years, therefore, the revision petition was time barred. The petitioner submitted C.P.L.A. Nos. 1507-L-2003 and 1661- L-2003. The august Supreme Court of Pakistan vide order dated 6-5-2009, was pleased to convert these petitions into appeals and accept, the same. The impugned judgment was set aside. The Civil Revision was to be deemed pending and was directed to be decided on merits.
2. It is contended by the learned counsel for the petitioners that in a case of two suits between same parties, involving the same issues, disposed of by a single judgment, appeal filed against only one decrees of these suits was competent and the omission to challenge the other decree was rectifiable by placing on record the certified copy of the second decree. Places reliance on "1992 SCMR 979" titled Siraj Din and 11 others v.
Rajada, "1981 SCMR 585" titled Abdullah v. Faqirullah and others. It is further contended that the customary succession in Punjab whereby the only male descendants are held entitled is repugnant to the injunctions of Islam Places reliance on "LLD 1981 FSC 278" titled Muhammad Isiaq v. Federation of Pakistan, "PLD 1983 Supreme Court 273" titled The Federation of Pakistan through Secretary, Law and Parliamentary Affairs, Islamabad. In the first cited judgment, the honourable Federal Shariat Court had held the customary succession repugnant to the injunctions of Islam and in the second referred case-law, the judgment of High Court was upheld by the Shariat Bench of the august Supreme Court of Pakistan. It is further argued that section 2-A of the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) amended by West Pakistan Muslim Personal Law (Shariat) Application (Punjab Amendment) Ordinance (XIII of 1983), the inheritance as regard to the agriculture land where parties are Muslim has to be made in accordance with Sharia Law. Section 2-A of the above Act has to take effect retrospectively and the succession even if opened in 1943, the question of inheritance would be decided in accordance with the Islamic Law of inheritance. Places reliance on "2003 SCMR 362" titled Mst. Ghulam Janat and others v. Ghulam Janat through L.Rs, and others, "PLD 1985 Supreme Court 407" titled Abdul Ghafoor and others v. Muhammad Shafi and others, and 2002 CL 733" tilted Sajjad Munir v. Mst. Murad Khatoon and others. The learned counsel appearing on behalf of respondent No,2, tows the arguments already advanced by learned counsel for the petitioners. He arguments his arguments by making a reference to the case-law cited as "2005 SCMR 1217" titled Muhammad Zubair and others v.
Muhammad Sharif, "2008 SCMR 332" tilted Suba and others v. Abdul Aziz and others, whereas the retrospectivity of section 2-A ibid has been sanctioned.
3. On the other hand, the learned counsel appearing on behalf of the respondents Nos.1 (i) to (x) contends that although a single appeal or revision is competent against a consolidated judgment accompanied by two degrees, yet in the instant case the degree passed only in appeal No,165/13 of 1988 has been challenged by the petitioners. He has not challenged the decree passed in Appeal No,166/13/1988 and thus is not entitled to any relief in respect of the subject-matter of Appeal No,166/13 of 1988. Even if a memo. Of revision petition could be complemented by production of the copy of decree drawn in the other appeal, the same should have been done within the period of limitation. The revision petition to the extent of the subject-matter of Appeal No,166/13 of 1988 deserves a dismissal. He further argues that respondent No,1(i) to (x) by production of the oral as well as documentary evidence proved that the Imrani tribe which is the branch of Khosa tribe is governed by the Custom and not by the Sharia Law in matters of inheritance. He makes reference to copy of "Rawaj-eAam" Exh.D-1 and Exh.D-2 and pedigree table Exh.D-7 to establish that Imrani Balouch are a branch of Khosa tribe. He also makes reference to the Mutations Nos. Exh.D-3 to Exh.D-6 to develop the argument that the inheritance devolved on the male heirs only excluding the females of the said tribe. He further argues that the documentary evidence on the subject excludes the oral testimony, therefore, the statements made by the P.
Ws. That the Imrani branch of Khosa tribe, was governed by Sharia law carries little credence and value. Places reliance on "2009 SCMR 1014" titled Bashir Ahmed v. Abdul Aziz and others, "2002 CLC 689" titled Mst. Noor Fatima v. Shah Ji, and "PLD 1985 Supreme Court 407" titled Abdul Ghafoor and others v. Muhammad Shafi and others.
4. I have heard the learned counsel for the parties have also gone through the record.
5. The parties do not dispute their relationship with the deceased Gahi son of Ghulam Hussain who died around the year 1943 i,e, before the enactment of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948. The petitioners and respondent No,2 claim that the property left by Gahi, the deceased should devolve on all the legal heirs under the Muslim Personal Law. On the other hand, respondents No,1(i) to (x) claim that since their predecessor had died before the enactment of the Act of 1948, therefore, their predecessor and after his death they are the sole legal heirs. The point of determination is, which law should govern the Parties and whether the provisions of section 2-A of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (As inserted by Ordinance XIII of 1683) would have a retrospective effect and thus would apply in case of the succession to the agricultural land left by Gahi, the deceased.
6. Before the enactment of the Act of 1948, the Customary Law of Inheritance was being practiced in the areas forming parts of India and Pakistan. Even pursuant to the said Act, the Islamic Law of Inheritance in case of agricultural land had not been fully applied. That necessitated the enactment of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. Under section 2 of the said Act, the Muslim Law was to apply on certain subjects mentioned in the said section. Under section 3 of the said Act, the limited estates under Customary Law were terminated. However, certain estates saved by any enactment were to continue to be governed by that enactment. Insertion of section 2-A into the Act of 1962, introduced a historic turn. It purported to apply Islamic Law of Inheritance in its entirety. On the termination of life estate, the inheritance was deemed to have opened on the death of last male owner in accordance with Sharia law and the estate was deemed to have devolved on all legal heirs according to Muslim Law. A Muslim male heir was to be full owner as if he had not inherited the property under any custom with limitations on his power to transfer but under Mohammadan Law with complete ownership and all the rights attached to the ownership. The judgments "2009 SCMR 1014" titled Bashir Ahmed v. Abdul Aziz and others "2002 CLC 689" titled Mst. Noor Fatima v. Shah Ji, and "PLD 1985 Supreme Court 407" titled Abdul Ghafoor and others v. Muhammad Shafi and others, referred by the learned counsel for respondent No,1(i) to (x) deal an entirely different subject. Under the Act of 1948, the limitations on the powers of even the male heir on alienation of the land inherited under the Customary Law confined. It could be challenged under the Rules of Customary Law on the ground of the sale being without necessity. These judgments deal altogether a different subject. Before the insertion of section 2-A into the Act of 1962, the agnates and the collateral even of a male owner could under the Customary Law, challenge an alienation on the ground of sale being without necessity. The ratio of three judgments, is that such a person had become an absolute owner of the land as if he had inherited it under the Sharia Law. The judgments render the learned counsel for respondents No,1 (i) to (x), little help to prove his case. The judgments cited as "1992 SCMR 979" titled Siraj Din and 11 others v. Rajada, "1981 SCMR 535" titled Abdullah v. Faqirullah and others, referred by the learned counsel for .The petitioners and for respondent No,2 speak of the rectification of the omission to attack the second decree in appeal revision. The submission of a certified copy of the other decree at a latter stage suffices the purpose. The judgments referred by the learned counsel for the petitioners passed in C.P.
Nos.1507-L, 1661-L of 2003, titled Ghulam Rasool and others v. Sher Muhammad (deed) L.Rs, "PLD 1981 FSC 278" tilted Muhammad Ishaq v. Federation of Pakistan, PLD 1983 Supreme Court 2/3" titled The Federation of Pakistan through Secretary, Law and Parliamentary Affairs, Islamabad v. Muhammad Ishaq and another, "2003 SCMR 362" titled Mst. Ghulam Janat and others v. Ghulam Janat through L.Rs, and others, "PLD 1985 Supreme Court 407" titled Abdul Ghafoor and others v. Muhammad Shafi and others and "2002 CLC 733" titled Sajjad Munir v. Mst. Murad Khatoon and others, "2005 SCMR 1217" titled Muhammad Zubair and others v.
Muhammad Sharif "2008 SCMR 332" titled Suba and others v. Abdul Aziz and others, resolve the whole dispute.
The judgments cited as "PLD 1983 Supreme Court 273" titled The Federation of Pakistan through Secretary, Law and Parlimanetary Affairs, Islamabad v. Muhammad Ishaque and another, "PLD 1985 Supreme Court 407" titled Abdul Ghafoor and others v. Muhammad Shafi and others, are in line and share the subject-matter of the judgments referred by the learned counsel for respondents Nos.1(i) to (x). The judgments cited as "2003 SCMR 362" tilted Mst. Ghulam Janat and others v. Ghulam Janat through L.Rs, and others, "PLD 1985 Supreme Court 407" titled Abdul Ghafoor and others v. Muhammad Shafi and others, "2002 CLC 733" titled Sajjad Munir v. Mst.
Murad Khatoon and others, "2005 SCRM 1217" titled Muhammad Zubair and others v.Muhammad Sharif and "2008 SCMR 332" titled Suba and others v. Abdul Aziz and others, make the application of section 2-A of Act of 1962 retrospective. In judgments cited as "2008 SCMR 362" tilted Mst. Ghulam Janat and others v. Ghulam Janat through L.Rs, and others, "2002 CLC 733" tilted Sajjad Munir v. Mst. Murad Khatoon and others, "2005 SCMR 1217" tilted Muhammad Zubair and others v. Muhammad Sharif, "2008 SCMR 332" tilted Suba and others v. Abdul Aziz and others. It was held that in case of the last male owner who died in the year 1930, the agricultural land would devolve on all the legal heirs under Sharia Law. The judgments cited as "2002 CLC 733"
Sajjad Munir v. Mst. Murad Khatoon and others, "2005 SCMR 1217" titled Muhammad Zubair and others v.
Muhammad Sharif, and "2008 SCMR 332" titled Suba and others v. Abdul Aziz and others, embodies the same ratio. The property in similar cases was held to devolve on all the legal heirs entitled to inheritance even in case of death of predecessor before the enactment of Act of 1948.
7. For what has been discussed above, this revision petition is accepted. The judgments and decree dated 12- 7-1988 passed by the learned Additional District Judge, D.G. Khan are set aside. The judgments and decrees dated 28-3-1987, passed by the learned Civil Judge D.G. Khan, decreeing the suit of Ghulam Fatima the predecessor in interest of the petitioners and dismissing the suit of Sher Muhammad the predecessor of respondents Nos.1 (i) to (x) are upheld.