' SHUJAAT ALI KHAN, J.---By means of the instant revision petition, the petitioners have called in question the vires of judgments and decrees dated 9-9-2004 and 4-4-2005 passed by the learned Civil Judge, Jhang and Additional District Judge, Jhang respectively.
2. Succinctly, the facts, forming factual canvass of the instant petition, are that one Zaman son of Aun was owner of land measuring 153 Kanals and 3 Marlas falling in Khata No,8 situated within the revenue estate of Mauza Duaba Tehsil and District Jhang. He died on 27-1-1934. As a result, the entire land stood transferred in the name of her daughter, namely, Mst. Khatoon (respondent No,1) under the prevalent custom vide Mutation No,102 dated 15-12-1934. However, as respondent No,1 contracted marriage with one Shera son of Amir, by virtue of Mutation No,135 dated 23-2-1937 the land was transferred in the names of Lal, Muhammad and Ramzan sons of Jalal, Mst. Bhakhan, Allah Jawai daughters of Sardara. Subsequently, Lal also died and land of his share was mutated in the name of Amir and Ahmad (respondents Nos.2 and 3) whereas the land left by aforementioned Mst. Bhakhan and Mst.Allah Jawai, upon their death, was mutated in favour of Muhammad, Atta Muhammad and Mazhar Abbas. Muhammad son of Jalal gifted his share of the property to his son, namely, Mazhar Abbas (respondent No,5) through Mutation No,739 dated 6-5-1992 whereas Ahmad (respondent No,3) sold away his share of land to Manzoor Khan, Falak Sher and Khurshid Khan (respondents Nos.4 to 6) by virtue of Mutations Nos.703, 709 and 746 attested on 26-9-1990, 26-1-1991 and 16-12-1992 respectively. Respondent No,1 filed a suit seeking declaration to the effect she, being legal heir of Zaman, is entitled to 1/2 share of the land and Mutation No,135 dated 23-2- 1937 and subsequent mutations being illegal and unlawful be cancelled. The said suit was contested by the defendants Nos.1 to 6 by way of filing written statement. Out of the divergent pleadings of the parties, the learned trial Court framed following Issues:- "(1) Whether the plaintiff is owner in possession of 1/2 share of the land detailed in para No,1 of the plaint and Mutation No,135 dated 23-2-1937 is liable to be set aside and on the basis of Mutation No,135, Mutation No,703 dated 26-9-1990, Mutation No,709 dated 26-9-1991, Mutation No,739 dated 6-5-1992 and Mutation No,746 dated 16-12-1992 and inheritance mutation of Mst. Bakhan, Mst.
Allah Jawai daughters of Sardara, Ramzan son of Lal, Lal son of Samaail in favour of defendants Nos. 1, 5 are also liable to be cancelled? OPP.
(2) Whether the plaintiff is entitled to decree for permanent injunction? OPP.
(3) Whether the suit of the plaintiff is time-barred? OPD-8.
(4) Whether the suit of the plaintiff is collusive with defendant No,1? OPD-2-8.
(5) Whether the plaintiff is estopped by her words and conduct from bringing this suit? OPD-2-8.
(6) Whether the plaint is liable to be rejected under Order VII Rule 11 of C.P.C.? OPD-3-5.
(7) Whether the suit of the plaintiff is not maintainable in its present form, as she is not in possession of the suit-land? OPD-3-5.
(8) Whether the requisite court fee has not been paid, hence suit is not maintainable? OPD-3-5.
(9) Whether the suit is bad for non-joinder of necessary parties? GPD3-8.
(10) Whether the defendant No,8 is bona fide purchaser for lawful consideration? OPD-8.
(11) Relief.
3. On plaintiff's side, Muhammad Bakhsh son of the plaintiff (her attorney) appeared in the witness box as P.W.1 whereas Allah Yar and Ahmad Bakhsh were examined as P.W.2 P.W.3 respectively. In addition to her oral evidence, plaintiff also tendered in evidence documents ranging from Exh.P-1 to Exh.P-10. On the other hand, one of the defendants, namely, appeared as DW-1 whereas Ali Muhammad was examined as DW-2. In their documentary evidence, the defendants tendered documents ranging from Exh.D-1 to Exh D-12 .
4. After going through the evidence, oral as well documentary, produced by the parties in support of their respective pleas the learned trial court decreed the suit filed by respondent No,1 vide judgment and decree dated 9-9-2004. Aggrieved by the said judgment and decree the petitioners preferred an appeal which was dismissed by the Additional District Judge, Jhang through judgment and decree dated 4-4-2005; hence this revision petition.
5. The arguments advanced by the learned counsel for the petitioners can be summed up in the words that while passing the impugned judgments and decrees both the courts below have failed to appreciate that Mutation No,135 was rightly sanctioned in view of the custom in vogue at the relevant time; that both the courts below failed to consider that it was a past and closed transaction; that question of limitation was not adverted to by the lower courts in its perspective; that after promulgation of West Punjab Muslim Personal Law (Shariat) Application Act, 1948 any male who inherited any property under the custom was absolute owner as under .Muslim Personal Law (Shariat); that. Respondent No,1 was already compensated against her share, if any, as is evident from her statement which was converted into black and white and in presence of Muhammad Ali and Malik Shahbaz; that the forums below have misinterpreted the provisions of section 2-A of Muslim Personal Law (Shariat) Application Act (Amendment) Ordinance, 1983; that verdicts of both the courts below are result of misreading and non-reading of evidence and that long standing entries in the Revenue Record carry presumption of truth. In addition to his oral submissions, learned counsel has also referred to the case reported as Ghulam Haider and others v. Murad through Legal Representatives and others (PLD 2012 SC 501).
6. Conversely, learned counsel appearing on behalf of the respondents, while defending the impugned judgments, argues that the entire land left by Zaman was not transferred in the name of respondent No,1 as per custom rather Shariat was applicable in the matters of inheritance;, that since Mutition No,135 was sanctioned against the prevalent law, therefore, the same was rightly struck down by both the courts below; that by the insertion of section 2-A of Muslim Personal Law (Shariat) Application Act (Amendment) Ordinance, 1983 the question of inheritance of a person who became owner, under any custom, was open and there was no question of limitation; that when commission of fraud and forgery is alleged the question of limitation does not impede the way of justice; that the case-law cited by the learned counsel for the petitioners is not applicable in the present case as in the said case usage of custom was admitted between the parties and that concurrent findings of facts recorded by the courts below cannot be upset in revisional jurisdiction.
In support of his contentions learned counsel has relied upon the cases reported as Maqbool Ahmad and others v. Fazal-e-Haq and others (2012 SCM R -917), Muhammad Zubair and others v.
Muhammad Sharif (2005 SCM R 1217), Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) and Sharu and 2 others v. Mst. Fatima and others (1993 CLC 625).
7. I have heard the learned counsel for the parties at considerable length and have also gone through the voluminous record of this petition in addition to the case-law cited by the learned counsel for the parties at the bar.
8. A perusal of judgments of both the courts below brings it to light that at the time of death of Zaman (deceased) the parties were being governed under the custom. (URDU TEXT)Now the question left for determination by this Court is that after contracting marriage whether respondent No,1 was entitled to inheritance, as claimed by her, or not. In this respect, I am of the view that according to the custom prevalent in the Khokhar clan at the time the property was mutated in the name of a female as limited owner reverts back to the reversioners upon the death of said female or on contracting marriage. Admittedly, Mutation No,135 was attested in favour of Lal etc. In the year 1937 when respondent No,1 contracted marriage. Now one thing is clear that under custom respondent No,1 was not entitled to any share in the land in dispute and his name was rightly excluded from the heirs of Zaman.
9. With the advent of West Punjab Muslim Personal Law (Shariat) Application Act, _1948, (hereinafter to be referred as the Act) it was held that any male owner who became owner of property under any custom was an absolute owner it would be deemed that he became owner under Muslim Personal Law (Shariat). If we consider the case of the petitioners they became the absolute owners with the promulgation of the Act.
10. Now coming to the moot point as to whether respondent No, l's case was covered under section 2-A of the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 (hereinafter to be referred as the Ordinance) I am of the opinion that a perusal of the same is conducive which for convenience of reference is reproduced hereinbelow:-- "2-A. Succession prior to Act IX of 1948. ---Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim
(a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land as if such land had devolved on him under the Muslim Personal Law (Shariat) ;
(b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void; inexecutable gad of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act;
(c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith: Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees."
A glance over the afore-quoted provisions makes it clear that according to sub-clause (a) the male Muslim who inherited property, under any custom prior to promulgation of the Act, has become absolute owner as under Muslim Personal Law (Shariat). While dealing with the said preposition, five Members Bench of the august Supreme Court of Pakistan in the case of Ghulam Haider and others (Supra) has inter alia been held as under:--
8. We have carefully gone through the first category of cases detailed above and have found that the interpretation of section 2-A introduced through Ordinance XIII of 1983 recorded in the judgments delivered by this Court therein was identical to the one advanced by us above. The judgment passed by this Court in the case of Mst. Ghulam Janat and others v. Ghulam Janat through Legal Heirs and others (supra) had, however, struck a different note and we observe in utmost humility and with great respect that the question of devolution of only a share of inheritance was imported in that judgment without the express words of the statute even hinting at such an effect. It can, thus, be said that such a judicially conjured or contrived adjunct or supplement in fact ran contrary to the very spirit as well as the express words of section 2 A which had quite explicitly talked about the entire acquisition and the entire land to be deemed to have come in the absolute ownership of the person who had acquired the same under the customary law of inheritance. In our humble view and discernment in the first category of cases mentioned above this Court had understood, captured and applied the true spirit of section 2-A introduced through Ordinance XIII of 1983 and that view appears to us to be a correct view which is to be followed. We may add that the said view and interpretation of clause (a) of section 2-A was also fortified by the language of clauses (b) and (c) of section 2-A which categorically excluded any application or execution of "any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage" and went on to save all the acquisitions of land under the customary law of inheritance even if such acquisitions were contrary to the Islamic law of inheritance.
9. It is a universally recognized principle of interpretation of statutes that where the plain language of a statute admits of no other interpretation then the intention of the legislature conveyed through such language is to be given its full effect. It appears that in the case of Mst. Ghulam Janat and others v. Ghulam Janat through Legal Heirs and others (supra) that principle had been departed from. The plain language of section 2-A and its clauses clearly provided that an acquisition by a male heir from a Muslim under the customary law of inheritance before March 15, 1948' was to be deemed to be an acquisition devolving upon the recipient under the Islamic law of inheritance. In other words, if we may venture to observe so, such an unlslamic acquisition had, through a legal fiction, been Islamized by the legislative intervention so as to remove any confusion and to bring an end to an otherwise unending litigation on the subject. It appears that in the case of Mst. Ghulam Janat and others v. Ghulam Janat through Legal Heirs and others (supra) such Islamization of otherwise unlslamic acquisitions had troubled or irked this Court and, thus, through the means of interpretation some words were read by this Court in section 2-A introduced through Ordinance XIII of 1983 in order to apply Islamic law of inheritance to such acquisitions which reading had not only committed violence upon the letter and spirit of section 2-A but had also contributed towards Creating complications and generating further litigation.
Under the scheme of the Constitution of the Islamic Republic of Pakistan, 1973 Islamization of laws lies in the exclusive domain and jurisdiction of the Federal Shariat Court and the Shariat Appellate Bench of this Court and by virtue of Article 203G of the .Constitution no Court or tribunal, including the Supreme Court and a High Court, can entertain any proceeding or exercise any power or jurisdiction in respect of any matter which lies within the power or jurisdiction of the Federal Shariat Court or the Shariat Appellate Bench of this Court. It is, thus, obvious that what this Court could not achieve directly was also impermissible to be achieved indirectly. From the plain language of section 2-A and the evident spirit of the provisions of Ordinance XIII of 1983 it is quite obvious that all such acquisitions under the customary law of inheritance were to be deemed to be Islamic conferring absolute ownership of all the land so acquired and through any laboured judicial interpretation such absolute ownership of the whole land acquired could not be reduced or restricted to a share of the land thus acquired.
10. For what has been discussed. Above we have entertained no manner of doubt that by virtue of section 2-A introduced through Ordinance XIII of 1983 a male heir acquiring any agricultural land in the Province of the Punjab before March 15, 1948 under custom from a person who at the time of such acquisition was a Muslim was to be deemed to have become, upon such acquisition, an absolute owner of the entire land acquired by him as if such land had devolved on him under the Muslim Personal Law (Shariat).
Further, according to the petitioners themselves, after attestation of Mutation No,135, the property has changed many hands, thus, the property in dispute is covered under clause (a) of section 2-A ibid as the same fairly and squarely falls within the domain of past and closed transaction. While dealing with somewhat similar question, the august Supreme Court of Pakistan in the case of Mst.
Fatima Bibi and others v. Mst. Bibi and others (2010 SCM R 760) has inter alia observed as follows:-- "13-A. Another aspect of the case is that the petitioner/defendant remained a 'tenant of the suit property until 1962, when she was assigned proprietary rights by an instrument executed on 12-2- 1962. This instrument of ownership had not been challenged by the plaintiff in the suit for she assailed only Mutations No,72 dated 7-8-1947 and No,5 dated 19-4-1964, whereby Mst. Fatima Bibi had gifted the property to her husband. The petitioner's ownership of the suit property, therefore, remained unchallenged."
' Similarly, in Bashir Ahmed v. Abdul Aziz and others (2009 SCM R 1014) apex court of the country has held that when the property devolves upon a person under any custom, he becomes the absolute owner. The relevant portion of the said judgment is reproduced hereinbelow:- "9. Once it is settled that rule of inheritance at certain time was custom and some person acquired the property under custom from a Muslim, he shall be deemed to have become an absolute owner of such land as if such land had devolved on him under the. Muslim Personal Law (Shariat) provided such acquisition had occurred prior to the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948."
' Similarly, a Division Bench of this court while dealing with said proposition in Ch. Salah ud Din Khan v. Ali Ahmad and 8 others (1987 CLC 584) inter alia held that:-- "The law laid down by the Supreme Court of Pakistan in Abdul Ghafoor v. Muhammad Shaft PLD 1985 SC 407, while interpreting section 2-A of the West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962 (V of 1962), added by section 2 of the Punjab Muslim Personal Law (Shariat)
Application (Amendment) Ordinance, 1983 (XIII of 1983) disentitles the appellant to dispute the legality of the alienations under custom because Nemat Khan would be deemed to be full owner of the land in dispute. .Consequently, the appellant's suit insofar as it sought to get declared the sale transactions to be void and ineffectual on his rights on account of their being violative of the rule of custom would not be maintainable and he could very well be non-suited on that account.
It follows that the appellant's appeal to question the impositioin of 'condition of payment of Rs, 2, 04, 000 becomes redundant and in:fructuous."
If we adjudge the instant case on the touchstone of ratio decidendi the afore-quoted judgments, the conclusion, in definite, is that since the respondent No,1 did not challenge Mutation No,135 at the appropriate time she was not obliged to challenge the same after decades.
11. Another important aspect of the matter in hand is that while filing the suit respondent No,1 in Paragraph No,7 of the plaint inter alia adopted following two inconsistent stances: ' From the above quoted portion of the plaint it is clear that till filing of suit in the year 2004 respondent No,1 was not sure about law of inheritance applicable to the legacy left by her father, Zaman, meaning thereby that she impliedly accepted Mutation No,135 sanctioned in favour of Lal etc. In the year 1937. There is nothing on record to show that under the prevalent custom the female, after having contracted marriage was entitled to inheritance.
13. According to respondent No,1 herself on the basis of Mutation No,135 certain subsequent mutations were also sanctioned in the year 1991 but inaction on her part to challenge Mutation No,135 for about eight decades is meaningful. No persuasive reason has been advanced by respondent No,1 for such a long slumber on her part. There is no cavil with the proposition that when allegation of forgery or fraud is pressed into service by the plaintiff the question of limitation assumes the role of secondary nature but in the case, under discussion, no element of forgery or fraud has been proved on behalf of the petitioners, therefore, respondent No,1 was bound to explain each day's delay in filing the suit. While dealing with somewhat similar situation, the Hon'ble Supreme Court in the case of Mst. Fatima Bibi(supra) has held that:- "*The High Court, therefore, misdirected itself in proceeding on the premises that the dispute between the parties was regarding Shari share of Mst. Fatima Bibi. Limitation would be a hurdle in the plaintiff's way in seeking relief. The plaintiff filed the suit fifty years after the impugned mutation and according to the statement of Mst. Fatima Bibi, she did not claim her share earlier due to her respect for her uncle Bhawala. By her own statement, the plaintiff thus demonstrated that notwithstanding her knowledge of the entries in the mutation she deliberately desisted from claiming her share in the suit property. This can hardly be legal ground for condoning delay. The plaintiff's suit was, therefore, barred by time having been filed fifty years after the cause of action arose to her."
If we consider the case of respondent No,1 on the basis of the dictum laid down in the aforementioned judgment, her suit filed in the year 2004 challenging the mutation sanctioned in the year 1937 was hopelessely J time-barred. Both the courts below has not attended to this point in a proper way.
15. The entire evidence produced by the plaintiff revolves round the point that the share of the property of the plaintiff was with the petitioners on lease and they were paying the lease money to her I regularly. However, Muhammad Bakhsh (P.W.1) in his cross-examination admitted that lastly the lease money was paid by the petitioners in the year 1995. He has not uttered even a word that why the plaintiff did not file any proceedings from the year 1995 to 2004. Likewise, Allah Yar (P.W.2), though he is close relative of the plaintiff, showed his inability to tell about the lease money.
Moreover, no document has been produced by the plaintiff to show that petitioners name figures in the revenue record as tenant. In this backdrop it is crystal clear that the petitioners are in possession of the suit property being absolute owners and story of lease of land to the petitioners is nothing but just a fairy tale.
16. Insofar as the contention of learned counsel for the respondents that concurrent proceedings cannot be upset in revisional jurisdiction is concerned, suffice it to observe that there is no denying the fact that in routine concurrent findings of facts recorded by both the courts below cannot be upset in revisional jurisdiction, however, when the concurrent findings are based on misreading and non-reading of evidence and mis-application of law on the subject is apparent from the face of the record same cannot be considered as sacrosanct rather the same can be interfered with by this Court in exercise of its revisional jurisdiction. Reliance in this regard is placed on Mubarak Ali through L.Rs v. Amroo Khan through L.Rs, (2007 SCM R 1714) wherein the august Supreme Court of Pakistan has inter alia held as under:-- "The judgments which have been cited by the learned counsel for the appellant with regard to noninterference by the High Court with the concurrent findings of the Courts below i,e, Sheikh Muhammad Bashir Ali and others v. Sufi Ghulam Mohi-ud-Din 1996 SCMR 813, Abdul Hakeem v.
Habibullh and 11 others 1997 SCMR 1139 and Roazi Khan and others v. Nasir and others 1997 SCMR 1849, in the circumstances of the case may not be of any help to the appellant firstly that the High Court has given cogent reasons for interference and also according to the aforesaid referred judgment Roazi Khan and others (supra), it is not only the misreading or non-reading of evidence, which justify the interference but even if the same suggests perversity whereby such findings can be interfered with or where approach of Courts below to evidence was perverse as held in the case of Abdul Hakeem (supra) or so perverse that grave injustice would result therefrom as held in the case of Sheikh Muhammad Bashir Ali and others 1996 SCMR 813 or the Court fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court as held in the case of Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568. This Court in the case of Sheikh Muhammad v. Hashmat Sultana 1989 SCMR 34 has held that every finding of fact is not immune from interference in revisional jurisdiction as possessed by the High Courts to be exercised when the Courts below commit jurisdictional illegality and this concept i,e,, of jurisdictional illegality has been considered by this Court in the case of Kanwal Nain PLD 1983 SC 53, to cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result. Applying this test, if the reasons advanced by the High Court are correct on the legal plane, then the two Courts deciding the controverted question of fact, cannot be said to have acted with jurisdiction, if the evidence has been misread or the conclusions drawn are perverse. In the case of Muhammad Bakhsh v. Ellahi Bakhsh and others 2003 SCMR 286, while placing reliance on a judgment of this Court Maj. Rashid Beg. v. Rehmat Ullah Khan and 4 others PLD 2001 SC 443, the interference in the judgments of the Courts below in exercise of revisional jurisdiction was held to be justified when the ,findings are based on conjectural presumptions, erroneous assumptions of facts and wrong proposition of law and where unreasonable view on evidence has been taken. While relying on the principles as laid down by this Court in the afore-referred judgments, it can be safely said that no injustice could be done greater than the one in the present case if the suit of the appellant succeeds by defeating the lawful process, of obtaining the possession by the respondent through execution, in roundabout manner through a collusion." (Emphasis provided)
Even otherwise, this Court has suo motu revisional power to look into any illegality committed by the courts below, therefore, this objection has no worth.
17. As far as the case-law cited by learned counsel for the respondent, is concerned, suffice it to observe that the same is not applicable in the present case inasmuch as in the case of Maqbool Ahmad and others (Supra) the question was as to whether the legacy left by a limited owner would go to the reversioners or her legal heirs alone but the same is not the position in the case in hand.
So far as the case of Muhammad Zubair and others (Supra) is concerned, I am of the humble opinion that in presence of latest judgment by a 5-Member Bench of the august Supreme Court, the said case is of no help for the respondents. Insofar as the case of G.Hulam Ali and 2 others (Supra) is concerned, the same deals with question of the inheritance. Of females and it has been held that they shall be considered in constructive possession of the property along with the males, which is not the position in the instant case. Likewise, the case of Sharu and 2 others (Supra), the same is of no help to the respondents specially visualized in the light of the dictum laid down by the apex Court of the country in the case of Mubarak Ali through L.Rs, (Supra).
18. For what has been discussed above, I have no doubt in my mind to hold that Mst. Khatoon (respondent No,1) was limited owner and upon her marriage, her property was rightly mutated in the name of Lal etc. Further, with the promulgation of the Act, the persons in whose favour Mutation No,135 was attested under the custom became full owner as under Muslim Personal Law (Shariat).
Consequently, instant revision petition is accepted the judgments and decrees of both the courts below are set aside. As a result, the 'suit filed by respondent No,1 shall stand dismissed. No order as to costs.