' SHAH JEHAN KHAN YOUSAFZAI, J.---This revision petition is directed against the concurrent findings of the two Courts below whereby the suit for declaration and perpetual mandatory injunction filed by the plaintiffs/respondents was decreed by the trial Court vide judgment and decree dated 20- 6-2009 which was upheld by the lower Appellate Court through judgment and decree dated 15-1- 2010.
2. Briefly stated the facts of the case are that the plaintiffs-respondents instituted a suit for declaration regarding the disputed property fully described in the heading of the plaint to the effect that Mutation in question bearing No.1192 attested on 5-9-1930 in respect of the suit property in favour of their predecessor being brother and Faqir Shah, Mureed Shah, Ismial Shah, Latif Khan and Kawon who are the successors of pre-deceased brothers is illegal to that extent, unIslamic, fraudulent and is liable to be cancelled to the extent of the aforesaid persons and that subsequently if any mutation or inheritance Mutations are attested in favour of legal heirs of the aforementioned five persons, the same are also ineffective upon the rights of the plaintiffs and are liable to be cancelled and all other mutations which were attested on the basis of mutation in question, the same are also liable to be cancelled. The defendants/petitioners contested the suit by way of filing the written statements. On the divergent pleadings of the parties the trial Court framed as many as seven issues including the relief. Both the parties produced their evidence as they wished to adduce. After hearing the learned counsel for the parties, the trial Court vide judgment and decree dated 20-6-2010 decreed the suit of the plaintiffs/ respondents as prayed for which was challenged in appeal by the defendants/ petitioners but the same was upheld and maintained by the lower Appellate Court through judgment and decree dated 15-1-2010. Hence the instant revision petition.
3. I have heard the learned counsel for the parties and have also gone through the record of the case with their able assistance.
4. This is undisputed fact that Abdur Rahim died issueless in 1939 leaving behind step-brother Abdul Khaliq while his brothers namely Abdul Ghafoor and Abdul Alam died during his life time.
Inheritance Mutation No.1191 was attested on 5-9-1930 in favour of Abdul Khaliq living brother and Faqir Shah, Mureed Shah the sons of Abdul Alam, Muhammad Gul and Ismail the son of Abdul Ghafoor the pre-deceased brother while Abdul Khaliq was not granted any share being a step- brother. It is also undisputed fact that Abdul Khaliq in his life time and thereafter his successors plaintiffs/ respondents remained in possession of the legacy of Abdur Rahim while the successors of Abdul Alam and Abdul Ghafoor are recorded "Ghair Dakhalkar continuously in the Revenue Record. This is also an admitted fact that the defendants/ petitioners who are the successors of Abdul Alam and Abdul Ghafoor filed a suit for produce in the revenue Court which was ex parte decreed and on appeal the Collector set aside the ex parte decree and thereafter the proceedings were adjourned sine die till the disposal of the instant suit.
5. Pedigretable produced by the revenue official reveals that Mullah Ahmad had two wives. From his first wife he was survived by Abdur Rehman while from the second wife he had four sons namely Abdur Rahim, Abdul Ghafoor, Abdul Alam and Abdul Khaliq. At the time of death of Mullah Ahmad, Abdur Rahim was only living son while Abdul Ghafoor, Abdul Alam and Abdul Khaliq had died in the life time of their father. The inheritance mutation was attested in favour of his legal heirs under the prevailing custom. Abdur Rahim died issueless. At the time of his real brother Abdul Khaliq, his nephews, sons of Abdul Ghafoor, Abdul Alam were alive except Muhammad Gul son of Ghafoor died in the life time of his father and was survived by his two sons Latif Khan and Kawoon.
Through the inheritance mutation the property was distributed amongs the real brother, nephew and sons of his nephew Muhammad Gul. Since 1930 as per Revenue Record the same entries were repeated. In the subsequent Jamabandi Abdul Khaliq remained in possession of the entire legacy of Abdur Rahim while the successors of his two deceased brothers were recorded in the Revenue Record as "Ghair Dakhalkaran". The said Ghair Dakhalkaran recorded successors of Abdur Rahim brought produced suit against the successors of Abdul Khaliq which was ex parte decreed and thereafter during the restoration of the suit proceedings the successors of Abdul Khaliq against whom ex parte decree was issued by the Revenue Court, filed the instant suit claiming to be the sole legal successors of his real brother Abdur Rahim and the nephew and sons of the nephew who are recorded Ghair Dakhalkaran as successors of Abdur Rahim is against Shariah and sought correction of the Revenue Record. In the disputed inheritance Mutation No.1192 attested on 5-9- 1930 legacy of Abdur Rahim was devolved upon Abdul Khaliq his brother Faqir Shah, Mureed Shah, Ismail Shah as his nephew, Latif Khan and Kawoon the sons of his deceased nephew. Defendants Nos.1 to 3 are the legal heirs of Faqir Shah, 9 to 29 are the legal heirs of Mureed Shah, Iqbal Shah and Abdul Khanan and defendants Nos.29 to 34 are the legal heirs of Ismail Shah while defendants Nos.35 to 39 are the legal heirs of Latif Khan and 40 to 48 are the legal heirs of Kawoon.
6. The divergent pleadings of the parties gave rise to as many as seven issues including the relief wherein the actual controversy between the parties is culminated in Issues Nos.3 to 5 and the learned counsel for the parties restricted their arguments to these three issues.
7. Learned counsel for the defendants/petitioners relied upon (PLD 2009 Supreme Court 95) in support of his contention that the suit of the plaintiffs/respondents was barred by time. It was observed in the cited judgment that the plaintiff was owner of the suit-land and sold the same to the defendant which was mutated in the year 1959-60 and the suit was brought in 1978, thus the suit was held to be barred by time under Articles 117 and 123 of the Limitation Act, 1908. The maximum period under the Limitation Act for such like suits was held to be 12 years from the date of its possession. Also relied on (2002 SCM R 426) wherein the inheritance mutation was subjudice and the effect of section 4 of Muslim Family Laws Ordinance 1961 which was repealed by the Federal Shariat Court w.e.f 31-3-2000 was examined and it was held that the judgment of the Federal Shariat Court striking down section 4 of Muslim Family Laws Ordinance, 1961 was still pending in the Supreme Court wherein leave was granted, thus it was held that the mutation attested in favour of children of pre-deceased daughter shall remained intact while in the present case the inheritance mutation was attested under the prevailing custom and by then section 4 of Muslim Family Laws Ordinance, 1961 was not yet promulgated. Neither the said provision of law has any effect on the controversy in hand nor the judgment of Federal Shariat Court whereby section 4 of Muslim Family Laws Ordinance, 1961 entitling the children of pre-deceased son and daughter were granted shares in the inheritance equivalent to the pre-deceased children was given effect from 31-3-2000 shall have no bearing upon the controversy in hand.
8. In a case reported in (1999 SCM R 1558) relied upon by the learned counsel for the defendants/petitioners, it was held that since the Courts below had recorded finding of fact that step-daughter of deceased Muslim female was entitled to get share in her property and such findings were found not suffering from any misreading or non-reading of evidence, thus found the same immune from interference by the Supreme Court and leave was refused. The cited judgment relates to the error in between 1961 when the Ordinance ibid was promulgated and 31-3-2000 from which date the said law was held repugnant to injunctions of Islam while in the instant case the mutation attested in custom and challenged in the year 1998, thus the matter before 1961 and much before the effective date of striking down section 4 of Muslim Family Laws Ordinance, 1961, thus not relevant. Also relied on (2008 CLC 61) wherein a suit for correction of entries in the Revenue Record were challenged. The suit was found barred by time being brought after sixty years of the impugned entries in the Revenue Record and it was held that since the matter was regarding declaration and correction of Revenue Record and not a case of entries regarding inheritance wherein the period of limitation will not apply, the suit for declaration and correction of Revenue Record not relating to inheritance was held to be barred by time. The cited judgment is irrelevant in the facts and circumstances.
9. In rebuttal learned counsel for the plaintiffs/respondents relied upon (2005 SCM R 1217) wherein it was held that right of succession would not be defeated by law of limitation or principle of res judicata as no law or judgment could override law of Shariah, being a superior law. The N.W.F.P.
Muslim Personal Law (Shariat) Application Act, 1935 was enacted which was given retrospective effect whereafter custom was no longer rule and decision. At the time of the institution of the suit custom law was no more in the field and the Act of 1935 ibid was given effect retrospectively, thus the children of deceased heirs of a Muslim person would not be able to get share in the inheritance in the legacy of their grandfather and the plaintiffs/ respondents have sought a declaration in conformity with the injunctions of Islam against the then prevailing custom in the area in the year 1930.
10. Also placed reliance on (PLD 1991 Supreme Court 93) it was held that N.W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 is to be given retrospective effect and whenever dispute comes before the Court of law with respect of succession, the deceased will be deemed to have died under the domain of Muslim Law even if the death has taken place before the coming into force of the North-West Frontier. Province Muslim Personal Law (Shariat) Application Act, 1935. The principle laid down in the cited judgment was rightly followed by the two Courts below.
11. In another case reported as (PLD 1984 Supreme Court 394) it was held that N.-W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 to be given retrospective effect and the dispute with respect to succession to estate of deceased Muslim, shall be decided in the domain of Act, 1935 even if the succession was opened earlier than 1935. Anyhow alienation by person regarding property of such deceased could not be challenged in view of amendment in West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 by Ordinance of 1983. In the instant case the defendants/petitioners are the successors of children of pre-deceased heir granted share in the legacy of AbdtnRahim are still recorded as Ghair Dakhalkaran in the Revenue record and they have not disposed of the same, therefore, the suit of the plaintiffs/ respondents was rightly decreed under the N.W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 and the requisite direction for correction in the Revenue Record was granted.
12. The judgment reported as 2008 CLC 1291 in an identical circumstance wherein the legacy of his father devolved solely upon his son the only male successor and excluded the mother and sister as the death of lustful owner occurred in 1920 but the Courts concurrently granted decree to the mother and sister and the transfer of legacy in the name of son exclusively was held illegal. In the instant case the defendants/petitioners were granted share in the estate of their uncle in presence of his real brother while under Shariah the nearer in degree to the deceased Muslim excluded the rarer to get share in the legacy. In presence of real brother the property devolved jupon the nephew and sons of deceased nephew under the prevailing custom was rightly challenged by the plaintiffs/respondents and the two Courts below were legally justified in granting,the requisite decree for correction of the Revenue Record.
13. Though the legacy was opened in the year 1930 when disputed inheritance Mutation No.1192 was attested on 5-9-1930 under the customary law but the entire legacy of Abdur Rahim remained in possession of Abdul Khaliq and the defendants/petitioners were only recorded Ghair Dakhalkaran in the subsequent Jamabandis and the plaintiffs/respondents the successors of Abdul Khaliq got knowledge of the said revenue entries only when a suit for produce was brought against them and thereafter they without loss of time filed the instant suit challenging the inheritance mutation copy Exh.P.W.2/1 being contrary to the injunctions of Islam.
14. In the wake, of the above discussion, I found no illegality, material irregularity, misreading or non-reading of evidence or any jurisdictional error in the concurrent findings of the two Courts below warranting interference by this Court in its revisional jurisdiction. Resultantly, this revision petition is dismissed leaving the parties to bear their own costs.