' AMIN-UD-DIN KHAN, J.---Through this single judgment I intend to decide instant civil revision as well as Civil Revision No,1253-D of 2001 as both these matters are inter connected.
2. Through this civil revision petitioners have challenged the judgment and decree dated 18.10.2001 passed by the learned Additional District Judge, Lodhran whereby appeal filed by the petitioners was dismissed and the judgment and decree dated 30.9.2000 passed by the learned Senior Civil Judge, Lodhran whereby suit filed by respondent No, 1/plaintiff was decreed.
3. Brief facts of the case are that on 21.7.1988 plaintiff/respondent No, 1 filed a suit for declaration that she is owner of the suit land described in the head-note of the plaint, to the extent of her share as legal heir of Muhammad Ramzan deceased and challenged the order passed by AC-II dated 7.9.1964 and order dated 28.1.1965 passed by the Collector, Multan and order dated 17.6.1965 passed by the Additional Commissioner (Revenue), Multan and challenged mutation No, 114 sanctioned on 12.1.1966 and mutation No, 452 dated 15.12.1980 and mutation No, 453 dated 15.12.1980.
4. Facts as pleaded by the plaintiff/respondent No, 1 are that plaintiff is daughter of Mst. Rehmon who was sister of Ramzan deceased. Case of the petitioners that after the death of Ramzan, his widow Mst. Rahiman inherited the property as limited owner in India. She came over to Pakistan, submitted claim and got the allotment of land in dispute. Case of the plaintiff that after enforcement of West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) the limited estate of all the widows were terminated by statutory provision of law and the property was to be distributed to the legal heirs of the last male owner i.e, Ramzan and widow was to inherit only 1/4th share as being issueless and other property was to be devolved upon legal heirs of Ramzan. It is the case of the plaintiff/respondent No, 1 that she was not shown by the revenue officials in the mutation of inheritance while carving out pedigree-table as legal heir of Ramzan, therefore, she was deprived. It is the case of the plaintiff that her mother died in Pakistan in 1951. The case of the plaintiff that other two brothers of Ramzan deceased namely Muhammad Bakhsh and Rahim Bakhsh also died in India, therefore, their legal heirs are not entitled to inherit Ramzan after reversal of the property from Mst. Rahiman, the widow, for distribution to legal heirs of Ramzan. It is pleaded that Mst. Rahiman transferred the property in favour of defendant Nos. 8 and 9 through sale mutation No, 114 attested on 12.1.1966 for a land measuring 11 Kanals 8 marlas and mutation No, 452 sanctioned on 15.12.1980 of sale in favour of defendants Nos. 6 and 7 for an area of 2 Kanals and Mutation No, 456 attested on 15.12.1980 of gift in favour of defendant Nos. 1 to 5 for an area of 111 kanals 4 marlas. It is the case of the plaintiff that with the connivance of the field staff all these mutations have been sanctioned.
5. The facts of the suit which is subject matter of Civil Revision No, 1253-D of 2001 are that Wahid Bakhsh etc. Filed a suit for declaration claiming to be the nephew of Ramzan to inherit the property of Ramzan on the same grounds that Mst. Rahiman was his widow and was limited owner, therefore, they have claimed that property of Ramzan be distributed to his legal heirs. In their suit in the pedigree-table they have shown Mst. Seemi as daughter of Ramzan also. Both the suits were consolidated vide order dated 1.3.1990 and proceedings were ordered to be conducted in suit titled "Wahid Bakhsh v. Muhammad Sadiq etc". Separate written statements were filed by defendant Nos.
1 to 5 and defendant Nos. 6 to 9 and the suit was contested. Defendant No, 11 filed a consenting written statement. Issues were framed. Parties were invited to produce their evidence. Both the parties produced their oral as well as documentary evidence. Vide judgment and decree dated 30.9.2000 learned trial court decreed the suit. Appeal was preferred, which was dismissed vide judgment and decree dated 18.10.2001. Hence, this civil revision.
6. Learned counsel for the petitioners, who were defendant Nos. 1 to 4, argues that there is no evidence that the property in dispute was allotted to Mst. Rahiman on the basis of property in her name in the India as limited owner. Learned counsel argues that there is absolutely no evidence that originally Ramzan was owner of the property in India and after his death the property devolved upon Mst. Rahiman as limited owner. States that Mst. Rahiman was owner in the India and against her claim the property in dispute was allotted to her and she was entitled to transfer the same and all the transfers are valid and correct and as it was a settlement matter, therefore, suit for declaration was absolutely not maintainable and suit is barred by limitation, defective, not proceedable and the judgments and decrees passed by both the courts below are against the evidence available on the record, therefore, without jurisdiction and liable to be set aside and further that there was an estoppel against the plaintiff/respondent No, 1 for filing this suit. The courts below have ignored all these legal as well as factual position and wrongly the suit has been decreed and appeal filed by the petitioners has been dismissed.
7. On the other hand, learned counsel for the plaintiff/respondent No, 1 argues that it is not a dispute of settlement, it is a dispute of inheritance. Further that when Mst. Rahiman was written as widow, therefore, it will be presumed that property of her late husband was devolved upon her as limited owner and in accordance with section 2-A of the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) the property is to be distributed among the legal heirs of Ramzan, the last male owner, after application of the said Act. States that in the matters of inheritance limitation cannot be a bar against the legal heirs to press their right of inheritance.
States that the suit was rightly filed before the civil court as it is the prerogative of the civil court to decide a matter in issue after recording of complete evidence and proceeding before the revenue courts are summary in nature. Prays for dismissal of the revision petition on the ground that there are concurrent findings of fact recorded by the two courts below.
8. I have heard learned counsel for the parties at length and gone through the record, evidence produced by both the parties oral as well as documentary, the findings recorded by both the courts below and the applicable law and the judgments of the august Supreme Court of Pakistan and the High Court relevant with this issue.
9. The basis of claim of plaintiff/respondent No, 1 is on the ground that Mst. Rahiman was written as widow of Muhammad Ramzan, therefore, the property she received in the claim was on the basis of A ownership of Muhammad Ramzan, who is maternal uncle of the plaintiff. Plaintiff was required to prove that property allotted to Mst. Rahiman. Was allotted as limited owner and in their family there was custom prevailing and not the "Shariat" in the matters of inheritance. Though there are concurrent findings of fact recorded by the two courts below but I am unable to understand that when both the above noted points have not been proved by the plaintiff/respondent, how the decree could have been granted in her favour and further the point of limitation has also been ignored by both the courts below. Even if application of the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) is taken into consideration, a specific time was provided and further when case of the plaintiff herself is that in the year 1966 through mutation No, 114 property was transferred in favour of defendants Nos. 8 and 9 and through another mutation No, 452 sanctioned on B 15.12.1980 some of the property was transferred in favour of defendant Nos. 6 & 7 and in favour of defendant Nos. 1 to 5 through mutation No, 456 attested on 15.12.1980 an area of 111 kanals 4 marlas was transferred, how the suit was within limitation when it was filed on 21.7.1988.
When in Para 9 of the plaint it is stated that two months ago when she came to know about the mutations and when defendants refused to accede to the request of the plaintiff, therefore, this also does not show that when the property was sold by the lady, who was recorded owner of the property and it is not specifically denied the sale transaction by the lady how this suit was within limitation. Plaintiff has not produced any evidence to prove that originally the property was owned by Muhammad Ramzan and after his death in India the property was transferred in the name of his widow as limited owner. As the law does not prohibit a lady from acquisition of proprietary rights, in this regard judgment of this Court reported as 1987 CLC 1048 "Abadan and others v. Mst. Jannat and another" can be safely relied upon. For ready reference, I quote paragraph No, 5 of the said judgment:- "There is no doubt that the Courts in this country do not exercise jurisdiction over the lands situated in the territories now forming part of Bharat and the land allotted to Mst. Jannat was a grant made on the basis of entitlement verified in her name on the basis of revenue record received from India and there is no indication available that the relevant land may have been held by her there as a limited estate under custom. There has never been a law in existence in the subcontinent to debar Muslim widows from acquiring properties in their own names, from their own resources or otherwise and the mere fact that Mst. Jannat had been described as the widow of Ahmad, in the records received from India, would be too slender a basis to assume the existence in her of a mere life-estate. Since no such restriction was added to her entitlement, either at the time of its verification or at the time of making the grant in her favour by means of allotment dated 7.1.1953, therefore, an addition to or the curtailment of those rights is not within the jurisdiction of the civil Courts to make."
10. When the property was evacuee, the decision of the matters under said laws was competent and civil court was having no jurisdiction. In this case guidance can be taken from the judgment of this Court reported as PLD 1965 (W.P) Lahore 35 "Muhammad Hassan v. Syed Mumtaz Hussain".
Relevant part of the judgment is reproduced:-- "Such being the case, the question of inheritance to the rights of allotment held by the deceased was one within the exclusive jurisdiction of the Rehabilitation, Authorities, and could not be agitated before the civil Courts in view of the provisions of section 18 of the Pakistan Rehabilitation Act, 1956, subsection (1) whereof provides that "subject to the provisions of sections 13 and 42 of the Pakistan (Administration of Evacuee Property) Act, 1956, no order passed by a Rehabilitation Authority under this Act shall be called in question in any civil Court, in any suit, appeal, execution application or other proceedings." Similarly, subsection (3) of the same section declares that "no civil Court shall be competent to adjudicate on the rights of or dispossess a person to whom any immovable property has been allotted or leased by a Rehabilitation Authority or by a Custodian or to issue an injunction or other order, in relation to any act done or intended to be done by a Rehabilitation Authority under the provisions of the Act." ' and with regard to exclusion of jurisdiction of civil Court light can be taken from PLD 1960 Supreme Court (Pak.) 229 "Mst. Zainab v. Mst. Raji and others". Head-note of the judgment is reproduced for ready reference:- "Pakistan Rehabilitation Act (XLII of 1956), Ss. 4(2), 17, 18 read with Rehabilitation Resettlement Scheme, Punjab---Declaratory suit to establish title to evacuee lands abandoned in India, by a refugee claiming to own such lands---Not competent."
11. With regard to competency of declaratory suit a judgment of this Court reported as 1983 CLC 1173 "Major Amir Muhammad Khan v. Dr. Faqir Muhammad and others" can be safely relied and observation made therein is reproduced:- "Needless to say that in a suit for declaration brought under section 42 of the Specific Relief Act all other reliefs which are open to a party must be sought otherwise the suit for declaration will be barred. If the respondent was desirous to bring a suit for declaration he should have asked for specific performance of the contract as consequential relief, or should have brought a suit for specific performance of the contract."
12. In this view of the matter, the findings recorded by both the courts below are not sustainable under the law. The suit was not competent, same has been filed after the prescribed period of limitation and it seems that when the other legal heirs challenged the rights of Mst. Rahiman and failed, they have used the present plaintiff-respondent to once again attack the rights of Mst.
Rahiman in the property which was sold by her in favour of the defendants. Resultantly, this Civil Revision is allowed and judgments and decrees passed by both the courts below are set aside and suit filed by the respondent/plaintiff stands dismissed throughout with costs.