' ABDUS SATTAR ASGHAR, J. This Regular Second Appeal under section 100 of Code of Civil Procedure 1908 is lodged against the judgment and decree dated 23-1-1980 passed by learned District Judge Sargodha whereby judgment and decree dated 12-7-1979 passed by learned Civil Judge Bhalwal was reversed and the appellant's suit for declaration etc. Was dismissed.
2. Succinctly the facts leading to this Regular Second Appeal are that the appellant lodged a suit for declaration etc. To the effect that the registered Sale-deed No.64 dated 20-2-1968 pertaining to the land measuring 40-1/4 Kanals as detailed in the plaint situated at Mouza Ghalapur Tehsil Bhalwal as per record of rights for the year 1962-1963 executed by Inayat respondent No.6 in favour of respondents Nos.1 to 3 and on the basis thereof Mutation No.933 dated 27-8-1968 and exchange Mutation No.942 dated 5-2-1969 by respondents Nos.1 to 3 in favour of respondents Nos.4 to 5 are against law and facts, without lawful authority, violative to the `Rawaj-Zamindara', void and ineffective as against their rights and liable to set aside. In the plaint it is alleged that appellant is real brother of vendor Inayat; that the land in question was ancestral to them and that the vendor being governed by custom could not make the impugned alienation and that consequent upon demist of Inayat, reversionary rights of the appellant in the land are not effected by the sale in question. It is also urged in the plaint that the impugned transaction of sale was also violative to Martial Law Regulation No.64 of 1959. The suit was contested by the respondents on facts as well as on points of law including limitation. It was also contended that the impugned sale was not effected by Martial Law Regulation No.64 of 1959 and that Civil Court has got no jurisdiction to try the suit. Maintainability of the suit in terms of section 42 of the Specific Relief Act, 1877 was also questioned. On the basis of the divergent pleadings of the parties learned trial Court framed following issues:--
(1) Whether the suit is barred by law? OPD
(2) Whether the plaintiff has no locus standi and cause of action to bring the suit? OPD
(3) Whether this court has no jurisdiction to try the suit? OPD
(4) Whether the suit is within time? OPD
(5) Whether the suit is barred by section 56 of the Specific Relief Act? OPD
(6) Whether the defendants are entitled to special costs under section 35-A of C.P.C.? OPD
(7) Whether the Mutation for sale No.933 based on Sale-deed No.64 dated 20-2-1968 and Mutation for exchange No.942, dated 5-2-1969 is without authority, illegal, collusive, void and against customary law and ineffective against the rights of the plaintiff? OPP
(8) Relief.
3. After recording the evidence of the parties, learned trial Court decreed the suit vide judgment and decree dated 12-7-1979 in the following manner:-- "a declaratory decree is hereby passed in favour of the plaintiff and against the defendants to the effect that the Sale-deed No.64 dated 20-2-1968, Mutation No.933 based on said sale-deed and exchange Mutation No.942 dated 5-2-1969 are illegal, against the custom, void and ineffective against the rights of the plaintiff. The parties are left to bear their own costs."
4. Respondents being dissatisfied assailed the said judgment and decree dated 12-7-1979 through appeal before the learned District Judge Sargodha which was allowed vide judgment and decree dated 23-1-1980 and judgment and decree dated 12-7-1979 passed by learned Civil Judge Bhalwal was reversed and appellant's suit for declaration, etc. Was dismissed.
5. It is argued by learned counsel for the appellant that the learned First Appellate Court has passed the impugned order on wrong premises of law and facts causing serious miscarriage of justice to the appellant; that the learned First Appellate Court has ignored the material, ocular and documentary evidence produced by the appellant on the record and has passed the impugned judgment and decree merely on the basis of surmises and conjectures.
6. It is resisted by learned counsel for the respondents with the contentions that Civil Court has no jurisdiction to set aside the impugned sale of transactions under the Martial Law Regulation No.64 of 1959; that appellant has failed to substantiate his plea that suit-land was ancestral qua the .Parties or they were governed under any specific custom with regard to any restriction on the sale by a lawful owner; that appellant being real brother of vendor was very much in knowledge of the impugned sale from the very first day and that the suit lodged after seven years is hopelessly barred by limitation; that the learned trial Court had altogether ignored the relevant provisions of law and facts while passing the impugned judgment and decree dated 12-7-1979 in favour of the appellant which was rightly set aside by the learned First Appellate Court through impugned judgment and decree dated 23-1-1980 passed in accordance with law; that learned counsel for the appellant has not been able to point out any legal infirmity in the impugned judgment and decree passed by learned. First Appellate Court, therefore, this Regular Second Appeal under section 100 of C.P.C. Has no merit and liable to be dismissed.
7. Arguments heard. Record perused.
8. Appellant's plea that the impugned transaction of sale was opposed to customary law categorically denied by the respondents was reduced into issue No.7. Onus to prove whereof was placed upon the appellant. In order to discharge the burden of proof it was incumbent upon the appellant to establish that the land in question was ancestral qua the parties and they were governed by particular custom with regard to any restriction on alienation thereof. Learned First Appellate Court .Has categorically mentioned in Paragraph No.8, of the impugned judgment that the learned counsel for the parties admitted before the Court that the. Parties had migrated to Pakistan from India after independence and the vendor Inayat was allotted the land in question as refugee in lieu of his claim against the land abandoned by him in India. There is nothing on record to show that the vendor was allotted the suit-land in lieu of the land held by parties as ancestral in India. Simultaneously, any particular custom bearing a clog on the alienation of land is also not duly established by producing any `wajib-ul-arz' regulating the parties tribe in any particular area.
Appellant Zamindar Khan while facing the cross-examination as P. W.3 categorically admitted that in the matters of inheritance they are governed by Sharia Law. It is therefore obvious that appellant has not been able to substantiate his plea that the suit-land was ancestral and the parties are governed by any Rawaj or custom'. Needless to say that with the promulgation of Muslim Personal Law (Shariat) Application Act (V of 1962) all customs stand abolished/abrogated. Due to this formidable hurdle appellant has no right to contest the impugned transactions on the basis of any custom.
9. Simultaneously, the findings of the learned trial Court that the impugned transaction of sale was violative to Martial Law Regulation No.64 of 1959 have been rightly declared as without jurisdiction.
It has been well-settled by the Hon'ble Apex Court that Civil Court has no jurisdiction to declare any transaction es offending the provisions of Martial Law Regulation No.64 of 1959. The power to declare any transaction as offending to the provisions of Martial Law Regulation No.64 of 1959 are exclusively vested to the Land Commission or Land Commissioner appointed thereunder. In this regard reliance is made upon Mst.Aisha Bibi v. Nazir Ahmad and 10 others (1994 SCM R 1935). The findings of the learned First Appellate Court in this regard therefore . Do not call for any interference.
'10. Admittedly, Zamindar Khan appellant and Inayat respondent No.6 vendor are real brothers. The impugned A registered sale-deed was attested on 20-2-1968. Possession of the suit-land was delivered to the vendees at the same time. The alienation was also incorporated in the Revenue Record through Mutation No.933 attested on 27-8-1968. The vendees respondents Nos.1 to 3 also entered into exchange of the said land with respondents Nos.4 to 5 vide Mutation No. 942 dated 5- 2-1969 including exchange of possession. Therefore, appellant's knowledge with regard to the above transaction from the very outset cannot be doubted. In terms of Article 120 of the Limitation Act, 1908 appellant could have challenged the transaction with a stipulated period of six year from the date of registration of impugned sale i.e. 20-2-1968 whereas the suit was lodged by him on 21- 2-1975 after about seven years of the accrual of the cause of action. The suit, therefore, is hopelessly barred by limitation. The findings of the learned First Appellate Court in this regard are salutary leaving no scope or interference by this Court.
11. For the above reasons I do not find any legal or factual infirmity in the impugned judgment and decree dated 23-1-1980 passed by learned First Appellate Court. This Regular Second Appeal therefore having no merit is dismissed.