' AAMER FAROOQ, J. -- Through the instant civil revision, the petitioner has assailed judgement dated 13,01.2015 passed by Additional District Judge (East), Islamabad.
2. The respondent is sister of petitioners No.1 to 3 and maternal aunt of remaining petitioners. She is one of the legal heirs of late Qaim Khan and filed a suit in the Civil Court, Islamabad assailing mutation No.2062, sanctioned on 14.08.1942 whereby the land in question was mutated to the male legal heirs of the said Qaim Khan and the respondent was not given any share therein. The learned Trial Court while deciding application for interim relief under Order XXXIX Rules 1 & 2 of Code of Civil Procedure, 1908 (CPC) rejected the plaint vide order dated 23.12.2013. The referred order was challenged by the respondents in appeal before the District Judge (East), Islamabad wherein the same was set aside and the case was remanded to be decided on merits.
3. The learned counsel for the petitioners, inter alia, submitted that the suit of the respondent is barred under the law and there is no cause of action in her favour. In support of contentions, learned counsel placed reliance on cases titled "Bashir Ahmed vs. Abdul Aziz" (2009 SCM R 1014), "Khuda Baksh vs. Niaz Bibi"(PLD 94 SC 298). It was further contended by the learned counsel that the suit has been filed by respondent after about seventy (70) years of the mutation in question and, therefore, is barred by limitation. The learned counsel further submitted that under section 2-A of West Pakistan Muslim Personal Law Shariat Application Act, 1962 where property devolved upon the legal heirs under custom, it is deemed that the same has been inherited under the Muslim Personal Laws.
4. The learned counsel for the respondents, inter alia, submitted that the examination of mutation in question shows that no entry exists regarding the nature of the mutation made and, therefore, it cannot be said that the referred mutation was under a custom or otherwise. The learned counsel further submitted that even if the transfer was made on account of custom the same has to be proved that there existed a custom on the basis of which the property was transferred and the suit could not have been dismissed under Order VII Rule 11 CPC. The learned counsel also contended that law of limitation does not apply in cases (Inheritance. In support of his contentions, learned counsel placed reliance on cases titled "Mst. Janntan & others vs. Mst. Taggi through L. Rs. & others"
(PLD 2006 SC 322), "Liaqat Ali & others vs. Mehl Sheda & others" (PLD 2011Peshawar 148), "Ahmed Nawaz & others vs. Rabnawaz & 16 others" (2014 YLR 144), "Muhammad Zubair & others vs. Muhammad Sharif" (NLR 2005 Civil 570), and "Mst. Suban vs. Allah Ditta & others" (2007 SCM R 635).
5. The parties are legal heirs/descendants of late Qaim Khan. Mutation No.2062 was sanctioned on 14.08.1942 in favour of the male legal heirs of Qaim Khan and respondent being the daughter was excluded. The contention of the petitioners that mutation was sanctioned on basis of the custom which existed in the area at the relevant time is not borne out from the mutation. It is an established principle of law that he who places reliance on any custom has to establish the fact that the custom existed at the relevant time in the area in question. In fact the judgment relied upon by the petitioner i.e. 2009 SCM R 1014 is also to this effect. In the referred judgment it was observed as follows:--- "4. The appellant claims inheritance on the basis of "Sharia" which is denied by the defendant on the basis of custom, where daughters were deprived of inheritance in the presence of sons. We would proceed to appreciate the evidence as well as the law on the subject with settled principle in mind that whenever a Muslim claims inheritance, the rule of law shall be the Muslim Personal Law (Sharia) and the party placing reliance upon custom shall have to prove the existence thereof."
' In the present case respondent claimed her share in inheritance on the basis of Muslim Personal Law (Sharia) and the petitioners in the written statement relied upon the custom whereby the female heirs were excluded from inheritance. It is incumbent on the respondents to establish custom which is a question of fact and evidence is required for proving the same.
6. Even otherwise under section 2-A of the Muslim Personal Law Sharia Application Act, 1962 the custom has been equated with the Muslim Personal Law of inheritance, therefore, the custom has to be established through cogent evidence and does not call for rejection of the plaint under Order VII Rule 11 CPC.
7. It is an established principle of law that in cases of inheritance the limitation is immaterial. In this regard the case of "Mst. Suban Vs. Allah Ditta & others" (2007 SCM R 635) is attracted wherein it was observed as follows:--- "11. 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 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 dale when the right of any such coherers/coinheritors in such land was denied by someone."
' Therefore, there is no jurisdictional infirmity in the impugned order calling for interference by this Court under section 115 CPC.
8. In view of foregoing discussion the present civil revision is without any merit, and therefore, is dismissed. Civil Revision .