' NASIR SAEED SHEIKH, J.---This civil revision is directed against the judgments and decrees passed by the learned two courts below decreeing the suit in favour of the plaintiffs/respondents.
2. Briefly stating the facts of the case are that Sultan Khan and Muhammad Nawaz sons, Mst. Noor Bhari, Mst. Mehr Bhari and Mst. Gullan Bi daughters, of Shian Khan instituted a suit on 13-12-1994 against the present petitioners before the learned Civil Judge Rawalpindi. The claim of the plaintiffs in the plaint was that land measuring 12 Kanals 4 Marlas falling in khasra Nos.1005 and 1007 was purchased by their predecessor in interest Shian Khan from Muhammad Khan son of Amir Khan through a mutation attested on 24-9-1927. Thereafter from khasra Nos.1025, 1026, 750 land measuring 9 Kanals 12 Marlas and from Khasra Nos.568 and 893 land measuring 21 Kanals and 11 Marlas were purchased by the said Shian Khan from the said Mohammad Khan through two registered sale deeds dated 15-1-1929 and 18-3-1929 respectively. Suba Khan the son of Muhammad Khan vendor launched three suits for issuance of declaration to the effect that the above three sale deeds having been made without consideration and without necessity were illegal and without lawful authority and of no legal effect upon the rights of the plaintiff as the land subject matter of the above mentioned transactions was claimed to be ancestral property and that his father Muhammad Khan cannot alienate the same so as to deprive the plaintiff Suba Khan from his prospective rights of inheritance. It was further elaborated in the suit by the said Suba Khan that Muhammad Khan, his father, was governed by the prevailing customs and that the plaintiff was then minor son of Muhammad Khan who has been deprived of his prospective right of inheritance in the subject land alienated by his father in his life time. This suit was decreed vide judgment and decree dated 30-1-1931 passed by the learned Civil Judge Campbellpur (Attock) against the predecessor in interest of the plaintiffs of the instant suit namely Shian Khan. The appeal preferred by Shian Khan also failed through the judgment and decree dated 15-2-1932 passed by the learned District Judge. Muhammad Khan died in the year 1987 and after his death the defendants of the present suit i.e. His LRs applied to the revenue authorities for incorporation of a mutation in their favour in the light of the judgment and decree dated 30-1-1931. The revenue authorities ultimately on 11-12-1994 attested the Mutation No.73 in favour of the defendants of the present suit i.e. The L.Rs. Of Muhammad Khan on the basis of judgment and decree dated 30-1-1931.
This order of the revenue authorities and the Mutation No.73 attested in favour of the defendants Nos.1 to 5 of the present suit was assailed by the respondents/plaintiffs through a suit for declaration and cancellation of the Mutation No.73 dated 11-12-1994. Primarily the case built up in the plaint by the plaintiffs was that the alleged decree passed under the customary law on 30-1- 1931 has become redundant and of no legal effect in view of the incorporation of section 2A(b)
West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Ordinance (XIII of 1983) in the Punjab Muslim Personal Law (Shariat) Application Act 1962 and was thus illegal and void as the rights under the customary laws as a reversioner were declared illegal and of no legal effect.
3. This suit was contested by the petitioners/defendants by submitting a written statement. It was pointed out by the petitioners in the written statement that Suba Khan had died earlier issueless and the defendants Nos.1 to 5 who are petitioners before this Court have succeeded as his L.Rs. As well in addition to being themselves the L.Rs. Of Muhammad Khan deceased. It was claimed that the possession of the subject property was not delivered to the vendee Shian Khan and it remained with Muhammad Khan during his life time and after his death it devolved upon the petitioners/defendants Nos.1 to 5. It was claimed that the judgment and decree dated 30-1-1931 as confirmed by the then learned first appellate court on 15-2-1932 has become past and closed transaction and cannot be assailed through a suit filed in the year 1994.
4. The learned Civil Judge framed the following issues out of the pleadings of the parties:-- ISSUES (1). Whether the suit is hit by principle of Res judicata? OPD
(2) Whether the suit is time barred? OPD
(3) Whether the plaintiffs have no cause of action? OPD
(4) Whether the suit is under valued for the purposes of court fee? OPD
(5) Whether the decree and judgment by Sub-Judge Campbellpur dated 30-1-1931 and by the District Judge Cambellpur dated 15-2-1932 are void due to Ordinance XIII of 1983 and the Mutation No.73 dated 11-12-1994 are illegal, void, ineffective and liable to be cancelled? OPP
(6) Whether the plaintiffs' are absolute owners of the suit land vide mutation dated 24-9-1927 and by way of sale deed dated 15-1-1929 and 18-3-1929?OPP
(7) Whether the plaintiffs' are entitled to get declaratory decree and permanent injunction against the defendants as prayed for? OPP
(8) Relief.
5. The parties produced their respective evidence both oral as well as documentary.
6. The learned Civil Judge Rawalpindi decreed the suit in favour of the respondents through judgment and decree dated 13-10-2001. The learned Civil Judge recorded crucial findings on issues Nos.5, 6 and 7 and held that the rights of Muhammad Khan deceased vendor as a reversioner under the customary law ceased to exist in the eye of law after the enforcement of West Pakistan Muslim Personal Law (Shariat) Amendment Ordinance No.XIII of 1983 and the incorporation of the mutation in favour of the L.Rs. Of Muhammad Khan after his death through impugned Mutation No.73 is illegal and without lawful authority. The learned Civil Judge also recorded a finding of fact that the possession of the subject land was with the respondents as per Jamabandi Exh.P3. Khasra girdawari Exh.D1 from khareef 1995 to khareef 2000 as claimed by the defendants/petitioners after the incorporation of the Mutation No,73 did not establish the possession of the present petitioners/defendants Nos.1 to 5 prior to the mutation in question. An appeal was preferred by the petitioners which appeal came up for hearing before a learned Additional District Judge, Rawalpindi and has been dismissed through the judgment and decree dated 6-6-2005. The learned first appellate court confirmed the question of law decided by the learned Civil Judge and the findings of facts recorded.
7. Through the instant civil revision the judgments and decrees passed by the learned two courts below have been assailed.
8. It is contended by the learned counsel for the petitioners that although the rights under the customary law were abolished after the incorporation of section 2A through West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Ordinance (XIII of 1983) into the provisions of Punjab Muslim Personal Law (Shariat) Application Act (V of 1962) but the proviso to section 2A fully protects the decree in question passed in the year 1931 which has become past and closed transaction as the possession of the subject land had already been delivered under the decree passed by the court of law. The learned counsel argued that the possession of the subject land being with the petitioners of the instant Civil Revision, it was not hit by the amended law and therefore the impugned judgments and decrees have been passed illegally by the two courts below.
9. The learned counsel for the respondents has contested the civil revision and has argued that there is no evidence available on the record that after the transaction of sales effected in favour of the predecessor in interest of the respondents Nos.1 to 5 by the then lawful owner Muhammad Khan of the subject land, the possession was not delivered to the predecessor in interest of the respondents Nos.1 to 5. It is further argued that the rights under the customary law were abolished by the incorporation of Punjab Muslim Personal Law (Shariat) Application (Act No.V of 1962) through the West Pakistan Muslim Law (Shariat Application) Act (Amendment) Ordinance 1983 clause (b) of section 2A which completely eliminated the rights of the reversioner under the customary law. It is argued by the learned counsel for the respondents that the judgment and decree claimed by the petitioners was pronounced in the year 1931 and it was not implemented and executed till the year 1994 during the life time of the deceased Muhammad Khan, the predecessor in interest of the present petitioners, and the incorporation of Mutation No.73 dated 11- 12-1994 by the revenue authorities was violative of the provisions of section 2A Punjab Muslim Personal Law (Shariat) Application Act, 1962 as amended. It is argued that the concurrent findings of facts have been recorded by the two courts below therefore no such material irregularity has been committed therein so as to entitle the petitioners to claim interference from this Court into the impugned judgments and decrees.
10. I have considered the arguments of the learned counsel for the parties and have perused the record available on the file.
11. The two courts below have recorded concurrent findings on the basis of available record that the possession of the subject land is with the plaintiffs of the present suit. Document Exh.P3 produced by the respondents/plaintiffs is copies of the record of rights for the years 1982-83, 1986-87 and 1990-91 in which the possession of the subject land has been shown to be with the vendees from Muhammad Khan. Oral evidence produced by the respondents Nos.1 to 5 supports the above contention. The present petitioners did not produce any evidence of the period prior to the incorporation of the Mutation No.73 dated 11-12-1994 that possession remained with Muhammad Khan during his lifetime and thereafter it devolved upon the petitioners. It is thus rightly concluded by the two courts below that the possession of the subject land was with the respondents Nos.1 to 5 and their predecessor in interest Shain Khan as vendee from the deceased Muhammad Khan who was predecessor in interest of the petitioners.
12. This factual position fully attracts the provisions of section 2A(b) Muslim Personal Law (Shariat)
Application Act 1962 which is reproduced:- "2-A. Succession prior to Act IX of 1948.................
(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 and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act."
13. The judgment and decree dated 30-1-1931 produced as Exh.D2 has also been perused in which the right of the predecessor in interest of the present petitioners Muhammad Khan was held to be that of a reversioner under the customary laws and it was declared the sale transactions effected by him of the ancestral property subject matter of the suit was not legally effected by the deceased Muhammad Khan and only a declaration was granted to the deceased Suba Khan son of Muhammad Khan that his right of inheritance shall not be affected by the transactions in question as under the customary laws it was the plaintiff Suba Khan who could have claimed some rights of inheritance in the ancestral property. It was thus declared that such rights of Suba Khan shall have effect after the death of the defendant No.1 Muhammad Khan who was his father and was impleaded in the said suit.
14. In addition to the above mentioned facts and legal position another question was formulated by this Court in the order passed on 19-11-2013 in the presence of both the learned counsel for the parties and para-2 of the order dated 19-11-2013 is reproduced:--
2. During the hearing of the case it is observed that Suba Khan who had filed the original suit in which the decree was passed on 30-1-1931 was not at all either owner or the heir under the Islamic Law of Inheritance of Muhammad Khan because under the Islamic Law the right of inheritance opens after the death of the original owner. Apparently the suit instituted by Suba Khan was hit by the principles of Spes Succession is.
' The learned counsel for the petitioners has contended that the legal proposition noted in the order dated 19-11-2013 is uncontroverted and he only argued that the case of the petitioners is fully covered by the proviso of section 2A incorporated in the Punjab Muslim Personal Law (Shariat)
Application (Act No.V of 1962) through the Amending Ordinance No.XIII of 1983. However the learned counsel for the petitioners could not point out any available evidence to prove that the possession of the subject land was. In any manner with the petitioners after the sale transaction effected by the deceased Muhammad Khan in favour of the predecessor in interest of the respondents.
15. Jahan Khan appeared as DW1 and he admitted in his cross-examination that Muhammad Khan died in the year 1987 and till his death the land in question remained in the name of L.Rs. Of Shian Khan. He further admitted that till the Mutation No.73 dated 11-12-1994 the subject land remained with the L.Rs. Of Shian Khan.
16. The concept of Spes Sucessionis recognized by the Muslim Law of Inheritance is in force right from the beginning. Section 52 of Muhammaddan Law by D.F. Mulla is very specific and is reproduced below:-- "52. Bright right not recognized.--- The right of an heir-apparent or presumptive heir, comes into existence for the first time on the death of the ancestor, and he is not entitled until then to any interest in the property to which he would succeed as an heir if he survived the ancestor."
17. Admittedly Suba Khan was a minor son of Muhammad Khan deceased when he instituted the suit on 27-3-1930 for seeking declaration that the sale transaction effected by his father of the subject land be declared illegal and of no legal effect upon his inheritance rights in future. Copy of the judgment and decree dated 30-1-1931 has been produced as Exh.D2 by the present petitioners.
The minor son of the deceased Muhammad Khan had no right of inheritance in himself at the time when he filed the suit and therefore the institution of the suit in which the decree dated 30-1-1931 was passed in his favour was illegal and incompetent. This proposition of law has been settled by the honourable Supreme Court of Pakistan in the judgment reported as Mst. Hamida Begum v. Mst.
Murad Begum and others (PLD 1975 SC 624) and the relevant portion of the reported judgment is at page 639 which is reproduced below:-- "In observing that the right to sue had accrued to the plaintiff' during the lifetime of her father, the learned Judge has overlooked a basic principle of Muslim Law, namely, that "the right of an heir- apparent or presumptive comes into existence for the first time on the death of the ancestor, and he is not entitled until then to any interest in the property to which he would succeed as an heir if he survived the ancestor." (Section 52 of Mulla's Mohammadan Law, 13th Edn). The Mohammadan Law does not recognize succession is, i.e., an expectation or hope of succeeding to the property of another by survival. Till that death occurs a presumptive heir has no right at all in the property of his ancestor It is interesting to observe that the illustration given by the learned author under this section is almost identical with the facts of the instant case. He has observed that a suit brought by a son, during the lifetime of his father, to challenge a gift made by the latter on the ground of undue influence was bound to be dismissed as the son had no interest in praesenti in his father's property during the latter's lifetime. This principle finds support from Abdul Wahid Khan v. Mst.
Nuran Bibi and others (1) (12 I A 91), Mirza Kurratulain Bahadur v. Nawab Nuzhat-ud-Dowla Abbas Hussain Khan, alias Peara Saheb(2)(32 I A 244), as well as from Hasan Ali v.Nazo (3)(1 L R 11 All.
456)."
' The same principle of law is reiterated in the judgments reported as Muhammad Siddique v. Shah Pasand Khan and others (1979 SCM R 619) and Muzaffar through Legal Heirs v. Mst. Mussahib Bano (1998 SCM R 707).
18. For all the above reasons the instant civil revision is devoid of any merits and is accordingly dismissed with no orders as to costs.