Muhammad Khalid Mehmood Khan, J. The respondents predecessor in interest Ghazi filed a suit against petitioners' predecessor in interest claiming that the land, more particularly described in the plaint, was originally owned and possessed by one Pehlwan s/o Jewan, the said Pehlwan was survived by his two sons namely Muhammad Nawaz alias Nazo and Ghazi alongwith two wives and one daughter. According to customary law the estate of deceased Pehlwan was inherited by two sons in equal share i.e 1/2 share each. Muhammad Nawaz alias Nazo died in the year 1933 issueless leaving behind Ghazi his step brother, Mst. Gohar and Mst. Ghulam Fatima his two mothers and Mst. Mehar Mai his sister. According to the prevailing custom at the relevant time in District Mianwali the property of Muhammad Nawaz alias Nazo was transferred to Ghulam Fatima his real mother. According to custom the property was transferred to Mst. Ghulam Fatima being the maintenance allowance only. The petitioners' predecessor in interest Ghazi filed a suit against Mst.
Ghulam Fatima claiming his right in the property left by Muhammad Nawaz alias Nazo. The parties entered into a compromise and a compromise decree was passed on 16.5.1946 whereby the suit of Ghazi, was decreed in the terms that Mst. Ghulam Fatima will remain the limited owner of 1/2 share of the land inherited from Muhammad Nawaz alias Nazo and 1/2 share of the land will be transferred to Ghazi. It was further agreed that Mst. Ghulam Fatima will not be able to sell, mortgage, alienate or gift the property in her possession and after her death her property will also become the property of Ghazi. Ghulam Fatima died in the year 1974. After the death of Ghulam Fatima Ghazi filed an application to the revenue authorities for the transfer of 1/2 share of Ghulam Fatima in his favour but the revenue authorities refused to accept his request and mutated the land vide mutation No.1773 attested on 25.5.1975 in favour of legal heirs of Ghulam Fatima. Ghazi assailed the attestation of mutation No.1773 through the civil suit. The respondents contested the suit and raised number of preliminary objections as to the maintainability of suit and the limitation.
It was claimed that Mst. Ghulam Fatima and Muhammad Nawaz alias Nazo were Sunni by faith and the inheritance mutation No.1773 has rightly been attested in their favour.
2. Mst. Mehar Mai also filed a suit for declaration against the predecessor in interest of the petitioners Ghazi, claiming that the suit land was originally owned by Muhammad Nawaz alias Nazo who died in the year 1933 issueless. After the death of Nazo his land was transferred in favour of Mst. Ghulam Fatima being his mother. Mst. Ghulam Fatima died in the year 1974, she was Shia Muslim but the revenue department treated Mst. Ghulam Fatima as Sunni and attested the mutation of inheritance of her property illegally and wrongly. She alone is entitled to inherit the whole property of Mst. Ghulam Fatima under Shia law of inheritance. The learned trial court consolidated both the suits and framed the following consolidated issues:- "Consolidated issues: {{URDU TEXT}}
3. Both the parties adduced their respective evidence and the learned trial court vide judgment and decree dated 25.7.1994 decreed the suit titled Ghazi, etc Vs. Mst. Mehar Mai and dismissed the suit titled Mst. Mehar Mai etc. Vs. Ghazi, etc. The petitioners filed two appeal against the judgment and decree of learned trial court dated 25.7.1994. The learned first appellate court vide judgment and decree dated 22.11.2001 dismissed both the appeal, hence the present Civil Revision.
4. Learned counsel for petitioners submits that judgments of two courts below suffer from misreading and non reading of record. The impugned judgments and decrees are not supported by any reliable and cogent evidence and is based on assumptions and inferences. The learned courts below have failed to appreciate that the decree dated 16.5.1946 is nullity in the eye of law and in view of provision of Muslim Personal Law Shariat Act, 1948. Learned counsel adds that Mst.
Ghulam Fatima was not having any authority in law to enter into compromise with Ghazi being the limited owner of estate of deceased Muhammad Nawaz alias Nazo. The learned appellate court has wrongly allowed the respondents to produce additional evidence. Learned counsel submits that impugned judgments and decrees are bad in law. Learned counsel has relied on Ghulam Ali and 2 others V. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1), Mst. Suban V. Allah Ditta, etc (2007 SCJ 676), Allah Wasaya and 3 others V. Rahim Bakhsh and another (1991 SCMR 1369), Juma Khan and others V. Mst. Bibi Zenaba and others (PLD 2002 Supreme Court 823), Nazar Muhammad V. Ayesha Bibi, etc (NLR 2008 Civil 633), Muhammad Farooq and 5 others V. Muhammad Haneef and others (PLJ 2011 SC 44), Ghulam Ali and two others V. Mst. Ghulam Sarwar Naqvi (NLR 1990 SCJ 207), Sher Muhammad & another V. Mahmood Bakhsh & 17 others (2000 SCJ 278), Muhammad Khan V. Mst. Rasul Bibi (2003 SCJ 736), Muhammad Khan V. Mst. Rasul Bibi (2004 SCJ 512) and Mst.
Janntan and others V. Mst. Taggi (deceased) through her L.Rs. and others (2007 SCJ 227).
5. Learned counsel for respondents supports the judgment and decree of two courts below.
Learned counsel submits that the decree dated 16.5.1946 has been implemented and as such cannot be assailed through a suit. Learned counsel submits that the judgments of two courts below are according to law and facts. Learned counsel submits that this Court in its revisional jurisdiction can only interfere in the concurrent findings of facts when these are based on insufficient evidence, misreading and non reading of evidence, non consideration of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power or the courts have taken unreasonable view not inconsonance with the evidence. In the present case both the courts below have properly appreciated the evidence produced by the parties. Learned counsel for respondents has relied on Fateh Sher and others V. Muhammad Hayat and others (PLD 2005 Lahore 578), Bashir Ahmed V. Abdul Aziz and others (2009 SCMR 1014), Asmatullah V. Amanat Ullah through Legal Representatives (PLD 2008 Supreme Court 155), Aslam and another V. Mst. Kamalzai and others (PLD 1974 Supreme Court 207), Muhammad Iqbal and 7 others V. Durab Khan (1976 SCMR 149), Mst.
Zarmina and others V. Munjawar and another (1975 SCMR 487) and Mst. Khatun V. Malla and 5 others (1974 SCMR 341).
6. Heard. Record perused.
7. Both the parties are admitting that originally the land was owned by Pehlwan who was survived by two sons, one daughter and two wives namely Ghazi, Muhammad Nawaz alias Nazo, Mehar Mai, Ghulam Fatima and Mst. Gohar. Muhammad Nawaz and Mehar Mai were the son and daughter of Pehlwan from Mst. Ghulam Fatima whereas Ghazi was the son from Mst. Gohar Mai. According to Rawaj Zameendara the entire land of Pehlwan was mutated in the name of his two sons in equal shares. Muhammad Nawaz alias Nazo died issuelss and his property as per Rawaj Zameendara was transferred to Mst. Ghulam Fatima his real mother. Ghazi, the step son of Mst. Ghulam Fatima and the son of Pehlwan filed a suit against Mst. Ghulam Fatima claiming that property transferred to Muhammad Nawaz alias Nazo has been transferred illegally and wrongly in favour of Ghulam Fatima. In that suit Mst. Ghulam Fatima entered into compromise with Ghazi and as per compromise half property of Muhammad Nawaz was transferred to Ghazi and half property remained with Mst. Ghulam Fatima with the condition that Ghulam Fatima will not be able to transfer, alienate or gift the property in any manner. After the death of Mst. Ghulam Fatima the property was transferred to her legal heirs excluding Ghazi and a mutation to this effect was attested at No.1773 (Exh.P-1). Ghazi as per compromise decree dated 16.5.1946 filed an application for the transfer of the estate left by Mst. Ghulam Fatima in his favour, his request was not acceded to, he then filed a suit for setting aside mutation No.1773. Mst. Mehar Mai, the daughter of Pehlwan and Ghulam Fatima and sister of Muhammad Nawaz alias Nazo filed a suit claiming that Ghulam Fatima and Muhammad Nawaz were Shia Muslim by faith and as such under Shia law of inheritance she is entitled to the entire estate of Ghulam Fatima. The parties adduced their respective evidence. The learned trial court decided Ghazi's suit on the ground that the decree dated 16.5.1946 is binding decree between the parties and as such Ghazi is entitled for the transfer of Mst. Ghulam Fatima's estate. The learned trial court also comes to the conclusion that Mst.
Ghulam Fatima was Sunni Muslim. Before the learned appellate court the respondents filed an application through their counsel on 09.7.2001 accepting Muhammad Nawaz alias Nazo and his mother Mst. Ghulam Fatima were Shia Muslims, they further stated that they have no objection in deciding the issue No.3 in favour of petitioners. The learned appellate court on the statement of respondents and appreciating the evidence come to the conclusion that Muhammad Nawaz alias Nazo and Mst. Ghulam Fatima were Shia Muslim and declared that Ghazi being the step son and step brother of Mst. Mehar Mai is not entitled to any share in the presence of Mst. Ghulam Fatima and the entire property of Muhammad Nawaz alias Nazo will go to his mother. As Mst. Ghulam Fatima has agreed with the respondents through a consent decree Exh.P-9 to Exh.P-11, hence the decree is binding between the parties.
8. The question now arose, what is the effect of decree passed on 16.5.1946? Whether Mst. Ghulam Fatima was entitled to entire estate of Muhammad Nawaz being Shia Muslim as declared by the learned appellate court?
9. It is an admitted fact that estate of Muhammad Nawaz alias Nazo was devolved upon Mst.
Ghulam Fatima as Muhammad Nawaz died unmarried. According to Shia and Sunni law of succession the mother will inherit the whole estate of deceased son if died issueless and the father of deceased is also not alive. Ghazi was step brother of Muhammad Nawaz alias Nazo, hence he was not entitled to get any share in the estate of Muhammad Nawaz, thus mutation in favour of Ghulam Fatima in the revenue record was rightly attested. Ghazi filed a suit for declaration claiming the entire estate of deceased Muhammad Nawaz alias Nazo, the suit was compromised vide Exh.P-10. According to consent decree 1/2 land of Muhammad Nawaz was transferred to Ghazi and remaining 1/2 land remain with Ghulam Fatima conditionally. Ghulam Fatima died in the year 1974. The consent decree was passed in favour of Ghazi on 16.5.1946. After the promulgation of Muslim Personal Law (Shariat) Act, 1948 Mst Ghulam Fatima become the absolute owner of the estate of Muhammad Nawaz alias Nazo on 15.3.1948, before 15.3.1948 the status of Ghulam Fatima was of a limited owner, she entered into compromise with Ghazi in a suit titled Ghazi V. Ghulam Fatima whereby she surrendered her 1/2 property in favour of Ghazi and remaining 1/2 property remained with her as limited owner with certain conditions and it was agreed between the parties that after the death of Ghulam Fatima remaining property will be transferred in favour of Ghazi.
Under Section 2(A) of the Muslim Personal Law (Shariat) Application Act, 1948 Mst. Ghulam Fatima become the absolute owner of land in her possession after 15.3.1948 and under Section 2(A(b) the consent decree become inexecutable, hence Ghazi is excluded from the arena and the property in possession of Ghulam Fatima after 15.3.1948 will go to her legal heir, Ghulam Fatima is survived by a daughter Mehar Mai, whose claim is that deceased Ghulam Fatima and Muhammad Nawaz alias Nazo were Shia Muslim and as such she alone is entitled to inherit the property of Muhammad Nawaz alias Nazo through her mother Ghulam Fatima.
10. The legal heirs of Ghazi claimed that Muhammad Nawaz alias Nazo and Ghulam Fatima were Sunni Muslim. The learned trial court decided that Muhammad Nawaz and Ghulam Fatima were Sunni Muslim, but during the appeal, the respondents filed an application on 09.7.2001 admitting that Muhammad Nawaz and Ghulam Fatima were Shia Muslim and they have no objection for deciding the issue No.3 in favour of petitioners. After the admission and consent of the respondents the learned appeal court was justified to hold that Muhammad Nawaz alias Nazo and Ghulam Fatima were Shia by faith, but the learned appeal court has wrongly held that Mehar Mai will inherit the entire estate of Muhammad Nawaz, Mst. Ghulam Fatima has surrendered 1/2 property in favour of Ghazi through consent decree in the year 1946 before the promulgation of Muslim Personal Law (Shariat) Act, 1948 and under Section 2(A) of the Act IX of 1948 the consent decree is a past and closed transaction.
11. The upshot of the above said discussion is that this Civil Revision is partly allowed, the judgments and decrees of learned trial court as well as learned appellate court are set-aside and the suit titled Mehar Mai Vs. Ghazi, etc is decreed to the extent that Mehar Mai being the daughter of Ghulam Fatima is entitled to her property which was in her name at the time of her death and the suit titled Ghazi Vs. Mehar Mai is dismissed with costs throughout