MALIK MANZOOR IIUSSAIN, J.- This revision petition is directed against judgment dated 03-12-2011 passed by the learned Additional District Judge/Izafi Zila Qazi-VI, Swat, whereby three appeals filed by the petitioners as well as respondents No. 2 to 14 were dismissed and the judgment dated 20- 12-2010 passed by learned Civil Judge/Illaqa Qazi-XVI, Swat was kept intact.
2. Briefly statedfacts giving rise to the instant petition are that respondent No. 1 instituted a suit bearing No. 42/1 against the petitioners for declaration, perpetual injunction and as consequential relief for possession of the property fully described in the heading of plaint. The suit was contested by the petitioners and after recording pro-contra evidence, the learned trial Court through judgment and decree dated 20-12-2010 decreed the suit of respondent No. 1 against the petitioners. Feeling dissatisfied, the petitioners preferred an appeal bearing No. 43/13 whereas respondents No. 2 to 14, who were not party in the original suit, filed appeal bearing No. 41/13 and respondent No. 4 filed separate appeal bearing No. 42/13 against the impugned judgment. After hearing of the parties, the learned appellate Court dismissed all the appeals through consolidated judgment dated 03-12-2011, hence, instant revision petition.
3. Mr. Abdul Wadood, Advocate,learned counsel for petitioners contended that findings of both the learned Courts below are not only against the material available on record but also against the law, under which parties were governed at the relevant time. He further contended that predecessor of respondent No. 1, died some 50/55 years back before institution of suit and the mother of the petitioners never instituted any suit against the predecessor of the petitioners during her lifetime, therefore, the suit was barred by time and the learned Courts below did not consider this material aspect of the case. It was lastly contended that Muslim Personal Law (Shariat Application), Act,V of 1962 was made applicable to Provincially Administered Tribal Areas (PATA) through Regulation No.1 of 1976, wherein through insertion of saving clause the instrument, custom or usage previously in operation were protected but this fact too was also not considered by both the learned Courts below.
4. Conversely, Mr. Shah Salam Khan, Advocate, learned counsel appearing on behalf of respondent No. 1 contended,that respondent No. 1, being legal heir of Mst. Pashmina Bibi, daughter of late Bacha Khan was entitled to the legacy of Bacha Khan to the extent of what was the "Shari" share of Mst.
Pashmina Bibi. It was further contended that under "Shari" law no legal heir can be deprived from inheritance and question of period of limitation does not arise in between legal heirs. It was lastly argued with vehemence that once Mst. Pashmina Bibi was admitted as legal heir of Bacha Khan, then, under no law, the legal heir of Mst. Pashmina Bibi can be deprived to inherit the legacy devolved upon Mst. Pashmina Bibi.
5. Mr. Abdul Halim Khan, Advocate,learned counsel appearing on behalf of respondents No. 2 to 14 contended that with regard to property purchased by respondents No. 2 to 14 a compromise was effected between the parties, wherein the property transferred in the name of respondents No. 2 to 14 was duly recognized valid by the petitioners as well as respondent No. 1 and as per statements of attorneys for parties, land bearing khasra Nos. 1300 & 1304 was declared as sole ownership in possession of respondents No. 2 to 14 and in support of same produced an attested copy of judgment dated 31-7- 2013 passed in Civil Revision No. 11-M of 2012 with CM No. 11-M/2012. Similarly, attested copy of judgment alongwith compromise effected between the parties in C.R. No. 695 of 2011 dated 10-6-2013 is also produced in addition to judgment passed in C.R. No. 11-M of 2012.
6. Arguments of learned counsel for the parties heard and record of the case perused with their able assistance.
7. A perusal of the record reveals that respondent No. 1 claimed his "Shari" share in the legacy of his maternal grandfather namely Bacha Khan. There is no denial of the fact that late Bacha Khan died in the regime of Ex State of Swat. He was survived by his two sons Izat Khan and Amir Nawab and two daughters Mst. Khandana and Mst Pashmina Bibi. It is pertinent to mention that two other sons of late Bacha Khan .i.e. Jalat Khan & Maqam Khan died issueless. As per "Riwaj", which was law of the land in the regime of Ex State of Swat, after the death of late Bacha Khan his legacy was devolved upon his two sons namely Izat Khan and Amir Nawab, whereas his daughters were excluded from inheritance. It has been established on the record that both Izat Khan & Amir Nawab owned half equal shares in the legacy and they remained in possession of their respective shares peacefully during the lifetime of mother of respondent No. 1 (Mst. Pashmina Bibi). The predecessor of the petitioners namely Amir Nawab transferred his share in khasra No. 1122 in favour of his wife Mst.Shahi Lal, petitioner No. 1, whereas property bearing khasra No. 689 was transferred in favour his daughters Mst. Daraja Bibi, Mst. Bakhti Raja Bibi, and Mst. Zamina Bibi .i.e. petitioners No. 2 to 4 vide mutation No. 2494 attested on 18-5-2006. Mst. Shahi Lal transferred her share in favour of her daughter Mst. Daraja Bibi, whereas this property was further transferred in favour of Sher Muhammad, petitioner No. 5 vide mutation No. 2460 attested on 17-4-2007. So far as the left over share of Mst. Daraja Bibi was concerned, that was transferred vide mutation No. 2679 attested on 21-6-2007 in favour of Bashir Ahmad, petitioner No. 6. Amir Nawab died in the year 2006/2007. The mother of respondent No. 1/ plaintiff died some 50/55 years back before institution of suit, as per respondent No. 1, but the petitioner never ever objected to the further transfers made in his presence.
8. After merger of Swat State into Pakistan in the year 1969, land settlement in District Swat was started in the year 1982 and accomplished in the year 1986. The entries existed in favour of predecessor of the petitioners No. 1 to 4 were also duly honoured and incorporated in the first ever settlement and the subsequent vendee's names were also incorporated therein, which were appearing in the subsequent "jamabandies". There is no denial of the fact, that neither mother of respondent No. 1 nor other daughter of Bacha Khan .i.e. Mst. Khandana claimed inheritance during their lifetime nor they filed any suit before any "fora" and after 50 years of death of his mother, respondent No. 1, instituted suit and for the first time claimed shares in the inheritance of Bacha Khan deceased.
9. West Pakistan Muslim Personal Law (Shariat Application), Act, (V of 1962) was made applicable to the Provincially Administrated Tribal Areas (PATA) through Regulation No. (1 of 1976). The previous operation of any law, instrument, custom or usage had been saved through insertion of Section 7(2) (a) of the Regulation ibid. For convenience sake the same is reproduced as under: "Section 7: Certain laws to cease to operate:-
(1) if, immediately before the commencement of this Regulation, there was in force in the said Areas any law, instrument, custom or usage having the force of law corresponding to the provisions of any of the laws applied to those Areas by this Regulation, such law, instrument, custom or usage shall, upon such commencement, cease to have effect in those Areas.
(2) Nothing in sub-section (1) shall affect--
(a) The previous operation of any such law, instrument, custom or usage; or (b)
(c)
(d)
9. The above referred provision makes it clear that the previous operation of any such law, instrument, custom or usage were protected through insertion of Sub Clause (2) (a) of Clause 7 of Regulation ibid and not effected by coming into force of Act (V) of 1962. Thus it is cleared from the above referred provisions that respondent No. 1 could not claim succession under Muslim Personal Law in the Estate of Bacha Khan, who was his maternal grandfather, as his mother was not entitled to the legacy of Bacha Khan, as per law/custom prevailed at the relevant time, he died much before coming into force of Act ibid, and the legacy devolved upon sons of late Bacha Khan was protected under the law.
10. In the recent judgment passed by the Hon'ble Apex Court in the case of Muhammad Rustam & others VS Makhan Jan& others, 2013 SCM R 299, the Hon'ble Supreme Court held that when inheritance mutation was never challenged by deceased lady in question, who remained alive after the death of her father for considerable time, the legal heirs of such lady cannot claimed the legacy being barred, under the law of limitation. Similarly in the case of Abdul Haq & another Vs Mst. Surrya Begum reported in (2002 SCM R 1330) the Hon'ble Supreme Court while seized of similar issue observed as follow:- " Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no "locus standi" to challenge the mutation independently, for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his lifetime."
11. This view was further affirmed in another judgment passed in the case of Noor Din and another Versus Additional District Judge, Lahore (2014 SCM R 513) with the following observations:- "There is no dispute that Mandoo Khan had passed away in the year 1951. The respondents/plaintiffs have also not controverted that the petitioners are in possession and enjoying the suit, property at least since the year 1971. Admittedly the gift mutation was attested in that year. Nazir Ahmad Patwari and Muhammad Naeem Akhtar, Revenue Officer who were present in Court along with the record had confirmed that no change had taken place in the revenue record since then and neither the plaintiffs nor their predecessor-in-interest have been recorded as receiving any share, in the produce of the property. When questioned the learned counsel for the respondents admitted that there is no documentary evidence to establish the receipt by the plaintiffs of any share from the produce."
Reliance can further be placed on the case of Mst. Garana through legal heirs VS Sahib Kamala Bibi and another (PLD 2014 Supreme Court 167). Thus, the suit filed after more than seven decades was barred by limitation.
12. Even on merits in a similar case of "Riwaj reported in the case of Mst. Farida & others VS Rehmatullah (PLD 1984 Peshawar, 117) while dealing with the legal position, this Court held as under:- It is manifest that section 2 pertains to application of the Muslim Personal Law in all questions regarding successions etc. section 3 relates to termination of life estate under Customary law and sections 4 and 5 are with regard to certain wills and devolution of property on the termination of life estate. The provisions of section 6 are significant and envisage that sections 3, 4 and 5 only shall be of retrospective operation and no other section shall be retrospective. Section 2 falls within the mischief of the latter part and it can be said that the provisions of section 2 shall have no retrospective operation. It follows that in all questions regarding succession the rule of decision shall be a Muslim Personal Law (Shariat) in cases where the parties are Muslims. Section 6 has specifically in very clear terms excluded the retrospective operation of the provisions of section 2 and where the death of an owner took place before the enforcement of this Act and the succession had been governed by custom the question of application of Shariat in a suit brought in 1978 would not, therefore, arise."
13. As per contention of respondent No. 1/ plaintiff, his mother Mst. Pashmina Bibi was deprived of her right of inheritance in the property of her father, but she did not challenge the same during her lifetime. Respondent No. 1, filed the instant suit in the year 2010, after 50 years of death of his mother and also after 4 years of death of predecessor of petitioners No. 1 to 4 namely Amir Nawab. As discussed above, Muslim Personal Law was made applicable to the area in the year 1976 having saving clause as per Section 7 Sub Clause (2) (a), therefore, this case is distinguishable from the normal cases of inheritance, as in the case in hand, Muslim Personal Law could not be made applicable to the former State of Swat retrospectively as per Section 6 of Regulation ibid. The petitioners enjoyed usufruct of the property peacefully for considerable long time before the eyes of mother of respondent as well as respondent himself but no objection was made even by the petitioners for long 50 years. The rights of petitioners were not only protected under the law of the land when their predecessor, Bacha Khan died but incorporation of their names in the first ever settlement in the area and thereafter long standing entries also supports the case of petitioners.
14. In this view of the matter, the findings arrived at by the Courts below are not only based on misreading and non-reading of the evidence available on file but also against the provision of law prevailed at the relevant time coupled with the fact that the same are rendered in violation of judgments of Hon'ble Supreme Court of Pakistan in the above referred cases. Hence, this revision petition is allowed and judgments and decrees of both the Courts below are set aside and consequent thereof, the suit filed by respondent No. 1 is dismissed, as such.