' QAISER RASHID KHAN, J.---Through the instant revision petition, the petitioners have called in question the judgment and decree dated 29-7-2010 of the learned Civil Judge-XI, D.I.Khan in Suit No,1/i of 1999 as well as the judgment and decree dated 3-10-2011 of the learned Additional District Judge-IV, D.I.Khan.
2. Brief and essential fact leading to the filing of instant revision petition are that respondents Nos.1 to 5/plaintiffs filed a declaratory suit against the petitioners as well as proforma respondents Nos.6 to 13 to the effect that the suit land was the ownership of Shahnawaz, grandfather of the respondents Nos.1 to 5/plaintiffs and that after his death, the suit land devolved through inheritance Mutation No,548 attested on 1-6-1928 only upon his two sons namely, Muhammad and Atta Muhammad while his daughter Mst. Essu was deprived of her 1/5th shari share and that through Mutation No,549 attested on 1-6-1928, occupancy tenancy rights were also transferred in the name of his two sons while his daughter namely, Mst. Essu was deprived therefrom as well.
Later on, Atta Muhammad died unmarried/issueless and out of his share, Mst. Essu was also entitled to 1 /3rd share of suit land while her brother Muhammad was entitled only to 2/3rd share, but through Mutation No,1615 attested on 26-1-1964, the entire share of deceased Atta Muhammad was transferred to Muhammad son of Shahnawaz and thus Mst. Essu was deprived both of the legacy of her deceased father as well as from that of her brother namely, Atta Muhammad and the revenue record showed the suit land only in the name of the successors of Muhammad i,e, the present petitioners/defendants Nos.1 to 5. The respondents Nos.1 to 5/plaintiffs thus claimed the share in the suit property being the successors of Mst. Essu along with respondents Nos.6 to 13.
3. On being summoned, the petitioners/defendants Nos.1 to 5 filed their written statement and out of the divergent pleadings of the parties, nine issues including relief were framed followed by the framing of an additional issue vide the order dated 2-2-2008 of the learned Additional District Judge-II, D.I.Khan. After recording pro and contra evidence of the parties, the learned trial Judge partially decreed the suit of the respondents Nos.1 to 5/plaintiffs to the extent of Mutation No,1615 attested on 26-1-1964 by cancelling the same being void while their prayer for declaration-cum- permanent injunction and possession of the suit land challenging Mutations Nos.548 and 549 attested on 1-6-1928 was declined.
4. Aggrieved from the said judgment and decree of the learned Civil Judge-XI, D.I.Khan dated 29-7- 2010, both the petitioners and the respondents Nos.1 to 5 challenged the same through their respective appeals which were finally disposed of by the learned Additional District Judge-IV, D.I.Khan vide judgment and decree dated 3-10-2011 which has in turn been impugned by the petitioners through the instant petition.
5. Learned counsel for the petitioners argued that the impugned findings of both the courts below are the result of misreading and non-reading of evidence and record; that both the courts below committed illegality by decreeing a time barred claim of the respondents Nos.1 to 5/plaintiffs on the score that the impugned mutations were never challenged by Mst. Essu, the predecessor in interest of the said respondents, during her life time though she had admittedly died somewhere in the year 1990; that both the courts below also overlooked the question of limitation involved in the case as the impugned mutations of the year 1928 were challenged after a period of about seventy years and that too, after the death of Mst. Essu; that the learned appellate court through its impugned judgment and decree gave a wrong interpretation to the North West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935 in the case of the petitioners as the impugned Mutations Nos.548 and 549 dated 1-6-1928 were sanctioned before the promulgation of the Act ibid which was not retrospective in nature; that even otherwise the respondents Nos.1 to 5/plaintiffs failed to prove their case through cogent, reliable and confidence inspiring evidence and, therefore, the impugned findings of both the courts are liable to be interfered with through the instant petition.
6. Arguments heard and available record perused.
7. As per record, there is no denying the fact that the predecessor of both the petitioners and the respondents namely, Shahnawaz had two sons namely, Muhammad and Atta Muhammad and a daughter namely, Mst. Essu. It was after the death of Shahnawaz that his legacy in the form of suit land devolved only on his two sons namely Muhammad and Atta Muhammad vide inheritance Mutation No,548 attested on 1-6-1928 while his daughter Mst. Essu was left out and thus deprived of her 1/5th shari share. Subsequently, through Mutation No,549 attested on 1-6-1928, the occupancy tenancy rights also stood transferred to his two sons to the exclusion of Mst. Essu. Much was to follow later on as Atta Muhammad son of Shahnawaz and brother of both Muhammad and Mst.
Essu being unmarried/issueless died and once again through inheritance Mutation No,1615 attested on 26-1-1964, the entire share of the deceased Atta Muhammad passed on to his brother Muhammad while his sister Mst. Essu was again deprived of his legacy.
8. The moot point which was urged most vociferously by the learned counsel for the petitioners was that in the year 1928 when the impugned mutations were attested, "riwaj" was in vogue as the law of the land and the North West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935 had no retrospective effect and thus Mst. Essu was rightly excluded from the legacy of Shahnawaz. The learned counsel for the petitioners also placed reliance on 2008 SCM R 230 and urged that the plaintiffs in a similar situation were non-suited on the question of limitation.
9. Like manner issues have cropped up time and again and it has been consistently held by the august apex Court that customary law with B regard to succession was not attracted in the case of a Muslim. The guidelines have thus been laid down by the august apex Court in a number of cases.
In the case titled Muzaffar Khan v. Mst. Roshan Jan and others (PLD 1984 SC 394) when the provisions of section 3(2) of Act VI of 1935 came up for consideration and on the question of retrospectively of this provision, it was observed that there is no doubt left that Act VI of 1935 is to be given retrospective effect and that whenever, a dispute comes before a Court of law with respect to succession to the estate of a deceased Muslim, the deceased will be deemed to have died under the domain of Muslim Law even if death had taken place before the coming into force of Act VI of 1935. Same view was arso taken in case titled Mst. Namdara and 3 others v. Mst.
Sahibzada and 2 others (1998 SCM R 996).
' Similarly, in case titled Mst. Suban v. Allah 'Ditta and others (2007 SCM R 635), it was held that:- "It is a proposition too well established by now that as soon as someone who owns some`property, dies, the succession to his property opens and the property gets automatically and immediately vested in the heirs and the said vesting was not dependent upon any intervention or any act on the part of the Revenue authorities or any other state agencies. It is also an established proposition that a mutation did not confer on anyone any right in any property as the revenue record was maintained only for realization of land revenue and did not by itself confer any title on anyone. It may also be added that efflux of time did not extinguish any rights in inheritance because on the death of an owner of property, all the co-inheritors, immediately and automatically, became co- sharers in the property and as has been mentioned above, limitation against them would- start running not from the time of the death of their predecessor in interest nor even from the date of mutation, if there be any but from the date when the right of any such co-sharers/co-inheritors in such land was denied by someone."
' In case titled Muhammad Zubair and others v. Muhammad Sharif (2005 SCM R 1217), it was held that:- "Property of a Muslim deceased would be deemed to have devolved on all those persons, who were his heirs according to Sharia on the date of his death and in case of death of any of them, his share would devolve on his heirs---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 Sharia being a superior law."
10. Another plea taken by the petitioners/defendants Nos.1 to 5 in their written statement was that Mst. Essu had bestowed her share on her brother namely, Muhammad. However, during the course of evidence, the said plea was never proved. It was also stressed that as Mst. Essu had died prior to her brother namely, Atta Muhammad, therefore, as a consequence the entire legacy of the latter devolved on his surviving brother Muhammad vide Mutation No,1615 attested on 26-1-1964. In this respect the petitioners/defendants produced Muhammad lqbal who was examined as DW-1. He claimed to be Nazim of Union Council Miran, Ramak and produced a certificate Exh.D.W.1/1 dated 5- 11-1990 to the effect that Mst. Essu died before 1965. However, in cross examination he claimed to be born in the year 1958 and, therefore, his knowledge about Mst. Essu being dead or alive in the year 1965 when he was barely seven years of age was rightly disbelieved by both the courts below. He even admitted as correct that the letter pad on which he had issued the certificate Exh.D.W.1/1 was not an official letter pad but printed by him himself and self stated that if the information in respect of Mst. Essu could be found in the register, then the same would have been issued on official letter pad. He further admitted as correct that he issues certificates in respect of death and birth on official letter pads. He also admitted as correct that secretary of Union Council could verify the said certificate because he is in possession of the record and that the certificate produced by him as Exh.D.W.1/1 did not bear the signature of the secretary and then self stated that if there is an entry in the register, then the secretary puts his signature, otherwise not. Such being the case, the allegation of the petitioners regarding the death of Mst. Essu prior to the death of her brother namely Atta Muhammad stands disproved. Though the learned trial court partially decreed the suit of the respondents Nos.1 to 5/plaintiffs to the extent of Mutation No,1615 attested on 26-1-1964 by cancelling the same, but the learned appellate court by taking an overall legal and factual account of the case rightly decreed the suit of the respondents Nos.1 to 5/plaintiffs through impugned judgment and decree dated 3-10-2011 which being based on correct appreciation of law and facts does not call for any interference at this stage and is upheld.
11. For the foregoing reasons, the present revision petition being bereft of any merit is hereby dismissed in limine. in limine.