AMIN-UD-DIN KHAN, J.---Through this civil revision the petitioner/plaintiff has challenged the judgment and decree dated 03.03.2009 passed by the learned Additional District Judge, Rawalpindi, whereby the appeal filed by the petitioner has been dismissed and the judgment and decree dated 19.04.2008 passed by the learned Civil Judge 1st Class, Rawalpindi, whereby the suit for declaration and mandatory injunction filed by the petitioner/plaintiff was dismissed.
2.Briefly, the facts as leading to this civil revision are that petitioner/plaintiff on 31.05.2001 filed a suit for declaration pleading that Ali son of Karam was owner of 45-kanals of land, who died issueless in the year 1926 and his mutation of inheritance No.510 was attested in the year 1927. At the time of his death, Bahadar the father of plaintiff being real brother was entitled to inherit the entire estate of deceased Ali but the predecessors of defendants Nos.11 to 30 with the connivance of revenue staff got sanctioned the mutation of inheritance of Ali in their favour to the extent of half share of the estate of deceased and rest of the property was given to his father Bahadar. The other legal heirs of Bahadar are defendants Nos.1 to 10. It is the case of plaintiff that Tora the other brother of Ali died in the year 1917, therefore, the mutation is result of fraud and misrepresentation. The written statement was filed and suit was contested. Learned trial court framed the issues and invited the parties to produce their respective evidence. The plaintiff opted to appear as his own witness as PW-1 and produced documentary evidence. One of the defendants Abdul Rehman appeared as DW-1 and produced documentary evidence. Learned trial court vide judgment and decree dated 19.04.2008 dismissed the suit. An appeal was preferred before the learned first appellate court, which also met with the same fate vide judgment and decree dated 03.03.2009. Hence, this civil revision.
3.Learned counsel for the petitioner argues that relationship of the parties is not denied and even the date of death of deceased Ali is also not in dispute between the parties; that the only question is that the defendants have claimed the transfer of property in their favour through custom, whereas according to the plaintiff the family of the parties was governed through Shariat in the matters of inheritance. While relying upon the judgment of this court reported as "2012 M LD 701 (Mst. Gaman and others v. Muhammad Amin and others)" argues that the judgments of both the courts below are against the law and facts of the case; that when the custom was claimed by the defendants, they were bound to prove the same which they failed. Prays for acceptance of this civil revision, setting aside the judgments and decrees passed by both the courts below and decree of the suit.
4.On the other hand, learned counsel for the respondents/ defendants argues that the suit is not competent, as past and close transaction cannot be challenged in a suit filed in the year 2001 and further that prior to the filing of this suit father of plaintiff filed a suit in the year 1968, copy of the judgment has been produced as Ex.D-1. Further argues that if the claim of petitioner/plaintiff be admitted that his father has not filed the suit, even then he is estopped to file the suit in the year 2001, which is after about 74 years of the attestation of mutation, therefore, argues that the findings recorded by both the courts below are in accordance with law. Relies upon "2008 SCM R 230 (Muhammad Hussain and others v. Muhammad Shafi and others)". Prays for dismissal of the instant civil revision.
5.I have heard the learned counsel for the parties at full length and also gone through the record minutely as well as the findings recorded by two courts below and the case law referred to by the learned counsel for the parties with their able assistance.
6.I have noticed that the petitioner/plaintiff has not appended with this civil revision the complete documentary evidence, only mutation No.510 which was produced as Ex.P-1, has been annexed with the civil revision, whereas the plaintiff produced 9 documents in his evidence. The evidence of defendants also shows that they produced three documents but not a single documents of the defendants has been annexed with the civil revision. While invoking jurisdiction of this court under section 115 of the C.P.C. the petitioner/plaintiff was bound under the law to produce complete 'certified copies of documents of the case with this revision petition but some of the important documents have not been appended herewith, which can easily be presumed that the same are against the petitioner-plaintiff. The loss of non production of certified copies of the documents, which have been exhibited in the trial court record, will certainly be suffered by the petitioner.
Therefore, this fact is sufficient to non suit the petitioner-plaintiff and sufficient to dismiss the civil revision.
7. The mutation was attested in the year 1927 and the suit has been filed in the year 2001 after more than seven decades of the attestation of mutation. The argument of learned counsel for the petitioner that in matters of inheritance the limitation can be straightaway ignored and cannot be a hurdle in the way of plaintiff, who files the suit. I do not agree with the argument of learned counsel. It is now settled law that question of limitation cannot be considered a technicality. Even in the matter of inheritance a suit must be filed within the prescribed period of limitation and only on the basis that matter relates to the inheritance the limitation be ignored is not a valid stance or ground. Reliance can be placed upon "2011 SCM R 8 (Muhammad Islam v. Inspector General of Police, Islamabad and others) PLD 2013 Supreme Court 392 (Farman Ali v. Muhammad Ishaq and others) and PLD 2014 SC 167 (Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others)". In this view of the matter, the suit of the petitioner/plaintiff was time barred.
8. Now I come to the question of custom or the application of Shariat in the matters of inheritance in the family of parties to the suit. In this context I humbly bow before the celebrated judgment of august Supreme Court of Pakistan reported as "PLD 2012 Supreme Court 501 (Ghulam Haider and others v. Murad through Legal Representatives and others)" in which the Apex Court has thoroughly examined the law on the point as well as considered all the previous judgments. For guidance I would like to quote the relevant portion of the judgment as under:-- "For the purposes of understanding the true scope, effect and application of the said Ordinance we have attended to each and every word of the same quite carefully and have observed that, according to the Preamble to the said Ordinance, the purpose of introduction of that legislation was "to amend the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 so as to bring it in conformity with the Shariah in the manner hereinafter appearing." It is, therefore, quite clear that the effort made by the said Ordinance was to bring the Act of 1962 in conformity with the Shariah but the "manner" chosen for achieving that object was the one provided for in that Ordinance and, thus, any other mode conceivable for achieving the same object was meant to be ignored or disregarded and the purpose was to be achieved only in the manner specified in that piece of legislation. The next thing noticed by us is that the provisions of the newly introduced section 2-A through that piece of legislation were to have their effect "Notwithstanding any thing 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 any Court". This shows that what the new legislation wanted to achieve was that successions prior to Act IX of 1948 were meant to be governed only by the freshly introduced section 2-A introduced through Ordinance XIII of 1983 and not by any other law or judicial intervention or interpretation. It is but obvious that by introducing Ordinance XIII of 1983 the legislature intended to put to rest all controversies and litigation in respect of successions prior to Act IX of 1948 and to hold for all times to come that all such successions were to be governed and covered by the freshly introduced section 2-A. It was in that background that section 2A introduced through Ordinance XIII of 1983 had categorically provided that" 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 devolved on him under the Muslim Personal Law (Shariat)
7. It is abundantly clear to us that section 2-A introduced through Ordinance XIII of 1983 was meant to cover all successions prior to introduction of Act IX of 1984, i.e. all successions before March 15, 1948; it dealt with only male heirs; and it was restricted to only those male heirs who had acquired any agricultural land under custom from a person who at the time of such acquisition was a Muslim. In plain terms section 2-A introduced through Ordinance XIII of 1983 was meant to be applicable to only those male heirs who had acquired some agricultural land from a Muslim before March 15, 1948 and such acquisition had come about under the customary law of inheritance.
According to section 2-A introduced through Ordinance XIII of 1983 such a male heir acquiring any agricultural land under the customary law of inheritance from a Muslim was to be deemed to have become, upon such "acquisition", an absolute owner of "such land", as if "such land" had devolved .on him under the Muslim Personal Law (Shariat). It is of paramount importance to notice that the words used in section 2-A introduced through Ordinance XIII of 1983 were "had acquired" and "such acquisition" and the person so acquiring was to become an absolute owner of "such land" as if "such land" had devolved on him under the Muslim Personal Law (Shariat). It is quite clear to us that what the legislature had intended was that the entire agricultural land acquired by such person under the customary law of inheritance was to be recognized as under .his absolute ownership as if such acquisition had come about under the Islamic law of inheritance and nothing in section 2-A introduced through Ordinance XIII of 1983 has been found by us to be conveying Any meaning that such person was to be deemed to have become An absolute owner of only that part of the acquired land which would have otherwise devolved on him as his share of inheritance under the Islamic law of inheritance. The deeming provision contained in clause (a) of section 2-A introduced through Ordinance XIII of 1983 in fact covered the entire acquisition And the entire land acquired And was never meant to be restricted to some portion or share of the acquired land. It appears to us that the intention of the legislature was that the entire devolution on the basis of the customary law of inheritance was meant to be saved by section 2-A And such devolution, in its entirety, was meant to be deemed to have been under the Islamic law of inheritance."
9. In the light of judgment wherefrom I have taken the light it is clear that a male member who is inherited from a Muslim under the custom was to be deemed to have become An absolute owner upon such acquisition. I am further clear in my mind that the plaintiff of this suit, whose father Bahadar died in the year 1926 And filing of suit by the plaintiff in the year 2001, asking the other party to prove custom of a mutation of inheritance which was passed in the year 1927 is not justified by Any stretch of imagination. The suit was not competent on this score also. Furthermore, the other legal heirs of Bahadar i.e. defendants No.1 to 10 have also not jointed him.
10.In this view of the matter, when there are concurrent findings of facts Andrew on the point recorded by both the learned courts below that the suit has been filed after the prescribed period of limitation And further the civil revision is defective, as complete documentary evidence has not been Annexed with this civil revision, I am unable to disagree. with the findings of two courts below, whereby the suit And appeal has been dismissed. The case law referred to by the learned counsel for the petitioner/plaintiff reported as "2012 M LD 701" is absolutely not applicable to the facts of this case, as in this case the matter relates to past And close transaction of the year 1927. It is clear now that the defendants, who are male heirs acquired agricultural land under custom from their porosities who was a Muslim, therefore, the property devolved upon them will be presumed to be inherited by them under the West Pakistan Muslim Personal Law (Shang) Application Act (V of 1962).
11. In the light of what has been discussed above, this civil revision having no substance stands dismissed.