AMIN-UD-DIN KHAN, J. Through this civil revision the petitioners have challenged the judgment & decree dated 07.02.2008 passed by the learned District Judge, Khushab whereby the appeal filed by the petitioners was dismissed and the judgment & decree dated 16.05.2002 passed by the learned Civil Judge, Khushab whereby the suit filed by the respondents-plaintif fs was partially decreed.
2. The brief facts are that the plaintif fs/respondents on 14.10.1996 filed a suit for declaration pleading therein that the plaintif f and defendants No.20 to 27 being legal heirs of Ghulam Muhammad and Hafeeza sons of Phatto are owner of property measuring 115-kanals 5-marlas out of total measuring 386 kanals 8-marlas according to Register Haqdaran Zamin for the year 1993-94 situated in Mouza Utra Janobi Tehsil & District Khushab. It is stated that defendants No.1 to 19 have absolutely no concern with the suit property and challenged attestation of mutation No.1183 attested on 15.06.1923 by Mst. Saban in favour of Muhammad Yar, predecessor of defendants No.1 to 19 on the ground that Mst. Saban was limite d owner . The prayer for permanent injunction was also made. It is further pleaded that originally Phatto s/o Pallu was owner of 13 1/2 Aaney in Zar Khewat which comes to 230-kanals 10- marlas, who passed away approximately before 1914. The suit property was transferred in the name of his sons Ghulam Muhammad and Hafeeza through mutation of inheritance. Both Ghulam Muhammad and Hafeeza sons of Phatto passed away in the year 1918 being issueless. The share of Hafeeza s/o Phatto was transferred in favour of his widow Mst. Khani as limited owner through mutation No.508, whereas share of Ghulam Muhammad was transferred in favour of his mother as limited owner through mutation No.507. It is pleaded that thereafter Mst.
Khani widow of Hafeeza contracted second marriage. The property from her name as limited owner was withdrawn and was transferred in the name of Mst. Saban, mother of Hafeeza through mutation No.1041. It is pleaded that Mst. Saban through mutation No.1183 attested on 15.06.1923 without any authority sold the property in favour of Muhammad Yar s/o Pallu predecessor of defendants No.1 to 19. It is pleaded that in the year 1924-25 and thereafter in the year 1967-68 distribution of Shamlaat proceedings were initiated and the ownership was recorded, therefore, in accordance with Jamabandi for the year 1993-94 identification of property has been mentioned. It is pleaded that at the end of extinction of limited ownership, Muhammad Yar s/o Pallu being brother of last male owner i.e. Phatto, was entitled to retain 1/2 share in the suit property . Whereas Noora the predecessor of plaintif fs and defendants No.20 to 27, the other brother of last male owner , was entitle d to get other half of property , therefore, the instant suit to challenge mutation No.1183 and claiming 115-kan als 5-marlas. The subsequent mutations in favour of legal heirs of Muhammad Yar have also been challenged and it is further pleaded that attestation of mutation of inheritance of Mst. Saban bearing No.4168 attested on 23.09.1938 is a documentary evidence to show that plaintif fs are the legal heirs.
3. The written statement was filed and suit was contested. Learned trial court framed the issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence. After the completion of trial suit was partially decreed by the learned trial court vide judgment & decree dated 16.05.2002. An appeal was preferred before the learned first appellate court, which was dismissed vide judgment & decree dated 07.02.2008. Hence, this civil revision.
4. Learned counsel for the petitioners states that he will press only the point of limitation and issue regarding limitation for filing the suit. Admittedly Mst. Saban passed away in the year 1938 and if the case of plaintif fs as pleaded is admitted to be true, the cause of action accrued firstly on 15.06.1923 to the plaintif fs or their predecessor at the time of sale of propert y to the predecessor of petitioners/defendants through mutation No.1183 attested on 15.06.1923 and lastly in the year 1938 when Mst. Saban passed away and mutation of her inheritance No.4168 was attested on 23.09.1938, whereas the suit was filed in the year 1996 at least 58 years after the death of Mst. Saban and 73 years after the accrual of first cause of action. The limitation provided for suit for declaration is six years according to the residuary Article 120 of Limitation Act, 1908. Despite the fact that issue No.4 of limitation was framed but both the learned courts below failed to record the findin gs on this issue in accordance with law. Prays for acceptance of instant civil revision. Learned counsel for the petitioners has also relied upon the judgments reported as "ATTA MUHAMMAD versus MAULA BAKHSH and others" (2007 SCMR 1446 ), "Mst.
GRANA through Legal Heirs and others versus SAHIB KAMALA BIBI and others" (PLD 2014 Supreme Court 167), "NOOR DIN and another versus ADDITIONAL DISTRICT JUDGE, LAHORE and others" (2014 SCMR 513) and "MUHAMMAD AMIR and others versus Mst. BEEVI and others" (2007 SCMR 614 ).
5. On the other hand, learned counsel for the respondents states that there are concurrent findings of fact recorded by two courts below . States that in the matter of inheritance limitation does not apply and it was not a hurdle in filing the suit and both the courts below came to a right conclusion while the suit filed by the respondents/plaintif fs was decreed and appeal there against was dismissed.
6. I have heard the learned counsel for the parties at full length and also gone through the record, case law referred supra and the findings recorded by the learned courts below .
7. At this stage even the shares pleaded by the respondents/plaintif fs is not correct. If the case of plaintif fs is admitted to be true, Mst. Saban being widow of last male owner was also entitle d to get share from inheritance.
Therefore, stating that Muhammad Yar was entitled to V2 share and the predecessor of plaintif fs, the other brother Noora, was entitled V2 share is wrong.
8. The impression that limitation never runs in the matter of inheritance is not correct appreciation of law. I am fortified by the celebrated judgment of august Supreme Court of Pakistan reported as "ATTA MUHAMMAD versus MAULA BAKHSH and others" (2007 SCMR 1446 ).
9. As the property was sold by the limited owner , in this way, it is not a case of possession of co-sharer through inheritance upon the suit property , as per version of the plaintif fs, Mst. Saban was not entitled to transfer the ownership rights in the suit property but through mutation No.1183 attested on 15.06.1923 the property was sold in favour of Muhammad Yar the predecessor of defendants and subsequently when Mst. Saban passed away in the year 1938 mutation of her inheritance No.4168 was also attested. The responden ts/plaintif fs or their predecessor remained silent at the time of attestation of mutation of sale in favour of predecessor of defendants/petitioners and thereafter as per their own pleadings the plaintif fs or their predecessor remained silent in the year 1938 when finally the cause of action accrued to them and filing the suit 58 years thereafter was certainly barred by time and limitation even in the matter of inheritance cannot be ignored. In this context, reliance can be placed upon the judgments reported as "Muhammad Islam versus Inspector General of Police, Islamabad and others " (2011 SCMR 8), "Farman Ali versus Muhammad Ishaq and others " (PLD 2013 Supreme Court 392), "Mst. GRANA through Legal Heirs and others versus SAHIB KAMALA BIBI and others " (PLD 2014 Supreme Court 167), "Agha Syed MUSHT AQUE ALI SHAH versus Mst. BIBI GUL JAN and others " (2016 SCMR 910), "NOOR DIN and another versus ADDITIONAL DISTRICT JUDGE, LAHORE and others " (2014 SCMR 513), "COMMISSIONER OF INCOME TAX, COMP ANIES ZONE-IV , KARACHI versus HAKIM ALI ZARDARI " (2006 SCMR 170) and "Hakim MUHAMMAD BUT A AND ANOTHER versus HABIB AHMAD and others " (PLD 1985 Supreme Court 153 )."
10. As per the case of petitioners that Mst. Saban was limited owner and admittedly she died in the year 1938 and her limited interest in the suit property terminated, therefore, at that time under the custom if predecessor of plaintiffs was entitled to inherit, he was required to challenge the sale mutation No.1183 within limitation from the attestation of mutation or at least in the year 1938, which has not been done. Even with the promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), in accordance with Section 3 of the Act at the most termination of limited estate the limitation for filing a suit available with the plaintiffs under residuary Article 120 of the Limitation Act, 1908 was six years, whereas the suit has been filed on 14.10.1996. Reliance is placed upon the judgment of august Supreme Court of Pakistan reported as "Mst. JANNAT BIBI versus SHER MUHAMMAD and others" (1988 SCMR 1696)." I would like to quote relevant paragraph as follows:- "This brings up the particular aspect of this case which seems to have been overlooked by the High Court. The plaintif f's suit was based upon right created by the statutory provisions, namely , section 3 of the Act of 1962, whereby limited estates of Muslim females under the Customary law were terminated and under section 5 such females were entitled to their Muslim law share as heirs of the last full owner . It is, therefore, clear that new rights were created by operation of law in favour of the appellant in respect of the estate of the deceased. Since these rights were not being enjoyed by the appe llant prior to 1962, there can be no question of her having brought a suit for possession on that basis on a date prior to the enforcement of the said Act of 1962. Looking at the matter in this perspective, it becomes manifest that the right to possession as full owner as a Muslim heir vesting in the appellant having accrued in 1962, the suit filed in 1966 for possession was still within time."
11. In the light of what has been discussed above, the findings recorded by both the courts below on point of limitation are not sustainable under the law and as such are reversed. Resultantly, the instant civil revision is allowed and the impugned judgments & decrees dated 07.02.2008 and 16.05.2002 passed by the learned first appellate court and trial court, respectively are set aside. The result would be the suit for declaration filed by the respondents-plaintiffs shall stand dismissed with costs throughout.