Sadaqat Ali Khan, J.: This Civil Revision No. 415-D of 2003 has been filed by the present petitioner against the judgment and decree dated 09.09.2003 passed by Additional District Judge, Liaquatpur according to which appeal of the present petitioner was dismissed filed against the judgment and decree dated 16.04.2002 passed by Civil Judge, Liaquatpur according to which suit of the respondents/plaintiffs was decreed.
2. The brief facts of the case are that present respondents being plaintiffs on 8.12.1997 filed suit for declaration with the assertion that they are owners in possession of the suit land being legal heirs of Illaho son of Hasso predecessor of the parties who died in the year 1937. It is further asserted that inheritance mutation No. 211 dated 18.12.1937 (Ex.P1) and mutation No. 98 dated 21.8.1940 (Ex.P2) are pertaining to inheritance of Illaho son of Hasso deceased sanctioned in favour of Muhammad Bakhsh present petitioner by excluding Mst. Jewal and Mst. Mehran real daughters of Illaho (plaintiffs/respondents) are liable to be set-aside.
3. On the other hand, present petitioner submitted his written statement and denied the assertion made by the plaintiffs and stated in para No.1 of the plaint as under: -
4. Learned trial court, out of the divergent pleadings of the parties, framed the following issues: - "Issues:
1. Whether the plaintiffs are owner in possession of suit land fully described in headnote of the plaint? I f so, whether the impugned mutations No. 211 dated 18.12.1937 and 98 dated 21.8.1940 are void qua the rights of the plaintiffs?OPP
2. Whether the suit of the plaintiffs is barred by time?OPD
3. Whether the plaintiff has got no cause of action and locus standi to file this suit?OPD
4. Whether the suit of the plaintiff is barred by law as stated in preliminary objections No.3?OPD
5. Whether the plaintiffs are estopped by their words and conduct to bring this suit, if so, its effect?
OPD
6. Whether at the time of mutations, the parties were governed by agricultural custom? If so, what was custom at that time being the force of law?OPD
7. Whether the suit of plaintiff is vexatious and merits dismissal with special costs u/s 35-A CPC?
OPD
8. Whether valuation of suit land is incorrect? If so, what should have been its valuation?OP parties.
9. Relief.
5. Mst. Mehran one of the plaintiffs/present respondents appeared as PW-1, Muhammad Hanif as PW-2, Ghulam Sarwar appeared as PW-3 and further produced Ahmad Yar and Abdul Razzaq as PWs.
6. Further, plaintiffs/respondents in documentary evidence produced documents Ex.P1 to Ex.P6.
7. On the other hand, Muhammad Bakhsh present petitioner appeared as DW-1 and produced documents Ex.D1 to Ex.D5.
8. Learned trial court after hearing the arguments of learned counsel for the parties decreed the suit of the present respondents vide judgment and decree dated 16.4.2002. Appeal filed by the present petitioner was also dismissed by Additional District Judge, Liaquatpur vide judgment and decree dated 9.9.2003 hence this civil revision.
9. Learned counsel for the petitioner submitted that impugned judgments and decrees of the courts below are the result of misreading and non-reading of evidence. It is contended that impugned judgments and decrees of the courts below are against law and facts on the file and are liable to be set-aside.
10. On the other hand, learned counsel or the respondents has vehemently opposed this civil revision and has supported the impugned judgments and decrees of the courts below.
11. I have heard the learned counsel for the parties and perused the record.
12. Admittedly, Illaho son of Hasso was last male owner of the suit property who had one son namely Muhammad Bakhsh present petitioner and two daughters Mst. Mehran and Mst. Jewal predecessors of the present respondents/plaintiffs. Illaho last male owner of the suit land died in the year 1937. His inheritance mutation No. 211 dated 18.12.1937 Ex.P1 pertaining to 'Mouza Bait Bhatter' and mutation No. 98 dated 21.8.1940 Ex.P2 pertaining to 'Mouza Bait Ameer' were sanctioned in favour of Muhammad Bakhsh (his son) by excluding Mst. Jewal and Mst. Mehran his daughters predecessor of the present respondents/plaintiffs under the Customary Law of Inheritance. Mst.
Mehran daughter of Illaho one of the plaintiffs appeared as PW-1 and stated in cross-examination as under: - {{URDU TEXT}}
13. Present petitioner has produced as
14. I have perused the same and found as under:-
15. Section 2-A of West Pakistan Muslim Personal Law (Shariat) Act 1962 has been inserted in the act through Ordinance XIII 1983 West Pakistan Muslim Personal law (Shariat) Act (amendment)
Ordinance 1983 which is hereby reproduced for reference:- "2-A. Succession prior to Act IX of 1948- Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of an Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim.
(a) He shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had developed on him under the Muslim Personal law (shariat);
(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, inexcusable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act;
(c) All suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith: Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees".
16. Considering above, I am of the view that both the disputed inheritance mutations i.e. mutation No. 211 dated 18.12.1937 Ex.P1 and mutation No. 98 dated 21.8.1940 Ex.P2 pertaining to inheritance of Illaho son of Hasso had been sanctioned before target date i.e. 15.3.1948 in favour of Muhammad Bakhsh son of Illaho by excluding Mst. Jewal and Mst. Mehran daughters of Illaho under the Customary law of inheritance and Muhammad Bakhsh present petitioner has become absolute owner of the entire land acquired by him as if such land had devolved on him under the Muslim Personal Law (Shariat). Reliance is placed on case Ghulam Haider and others v. Murad through Legal Representatives and others (PLD 2012 S.C 501) in which Hon'ble Supreme Court of Pakistan has observed at page 542 as under: - "For what has been discussed above we have entertained no manner of doubt that by virtue of section 2-A introduced through Ordinance XIII of 1983 a male heir acquiring any agricultural land in the Province of the Punjab before March 15, 1948 under custom from a person who at the time of such acquisition was a Muslim was to be deemed to have become upon such acquisition, an absolute owner of the entire land acquired by him as if such land had devolved on him under the Muslim Personal Law (Shartiat).
10. In view of the conclusions arrive at by us above the entire land acquired by Murad through mutation No. 4536 attested on 29.10.1944 under the customary law of inheritance was to be deemed to have been acquired by him under the Muslim Personal Law (shariat) and, thus, Mst.
Bano's suit filed against that acquisition had to fail and the learned Judge-in-Chamber of the Lahore High Court, Multan Bench, Multan was quite justified in holding so".
17. In view of the above discussion, both the courts below have committed illegality by decreeing the suit of the present respondents/plaintiffs. Impugned judgments and decrees of courts below are the result of misreading and non-reading of evidence.
18. For the foregoing reasons, this civil revision is allowed and impugned judgments and decrees of courts below are hereby set-aside as a result of which suit of the present respondents is dismissed.