IJAZ UL AHSAN, J.---Through this single judgment, we propose to decide titled Civil Appeals as well as Civil Miscellaneous Applications, as all these matters arise out of a common judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 27.05.2005.
2. These Civil Appeals are directed against a judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 27.05.2005. Through the impugned judgment, revision petitions (C.Rs, Nos,500 and 527 of 1989, etc) filed by the Respondents were allowed.
3. The brief facts necessary for decision of this lis are that Shahab-ud-Din deceased was owner of agricultural land in Tehsil Sarsa District Hissar (India). He died on 03.11.1918. He was survived by two widows namely Janat Bibi and Mst. Imam Sain, a daughter namely Noor Elahi (from Mst. Imam Sain), his mother Mst. Jannat Bibi and two sisters namely Mst. Bakhshai and Mst. Roshani. On an application moved by the two widows, mutation of inheritance was entered in their names on 13.01.1919. However, sanction of the mutation was kept in abeyance on the basis of a report submitted by Halqa Girdawar that one of the widows namely Mst. Janat Bibi was on the family way.
She later gave birth to a son namely Dewan Muhammad. Consequently, the entire land of Shahab- ud-Din was mutated in favour of his son Dewan Muhammad through mutation No,310 dated 14.09.1919. It appears that Dewan Muhammad died on 17.02.1920. The entire property was thereafter transferred in favour of the two widows of Shahab-ud-Din namely Mst. Janat Bibi and Mst. Imam Sain through mutation No,347 dated 04.03.1920 in equal shares.
4. Mst. Jannat Bibi (mother of Shahab-ud-Din) and Mst. Badan, who claimed to be the step-mother of Shahab-ud-Din filed appeals against mutation No,347. Such appeals appear to have been dismissed on 30.04.1920.
5. The record indicates that in 1943, Mst. Janat Bibi widow of Shahab-ud-Din and mother of Dewan Muhammad also died. Her half share in the property was also mutated in favour of Mst. Imam Sain, the surviving widow of Shahab-ud-Din.
6. When Pakistan came into existence, Mst. Imam Sain migrated to Pakistan and settled in Hasilpur.
She filed a claim on the basis of her ownership in India and obtained allotment of land in Mauza Miana, Tograh, Goth Noor Muhammad, Bhaili, Tehsil Hasilpur, District Bahawalpur (now Khairpur Tamiwali) through RL-II. The land, according to her entitlement, was allotted to her which she later alienated in favour of the son of her daughter namely Zulfiqar Ali. On transfer of the said property by Mst. Imam Sain in favour of her grandson Zulfiqar Ali, litigation started and Mst. Roshani Bibi filed three civil suits on 22.10.1969 against Zulfiqar Ali and Mst. Imam Sain.
7. The stance taken in the suits was that Shahab-ud-Din was the last male owner of the suit property and Mst. Imam Sain was a limited owner, who could not have transferred the entire property in favour of her grandson Zulfiqar Ali. Further alienation by Zulfiqar Ali in favour of other Respondents was also brought into question. All suits were contested by Zulfiqar Ali and Mst. Imam Sain, etc. Other legal heirs of Shahab-ud-Din also claimed their respective shares in the property.
Subsequent purchasers, who had purchased certain portions of the property from Zulfiqar Ali, also entered the fray on the plea of being bona fide purchasers for value and without notice.
8. The trial Court dismissed all three suits, vide order dated 24.02.1970. It held that Mst. Imam Sain was the exclusive owner of the property in dispute and was legally entitled to transfer the property by way of gift. The said order of the trial Court was challenged in appeals before the District Court which were dismissed. However, the High Court vide order dated 11.12.1982 remanded the cases for decision afresh after recording evidence.
9. In post remand proceedings, the trial Court again dismissed the suits, vide judgment and decree dated 28.07.1988. Against the judgment and decree of the trial Court, nine (09) appeals were filed which were dismissed by the District Judge, Bahawalpur vide order dated 27.07.1989.
10.Being aggrieved, the Respondents filed Civil Revision Petitions before the High Court. These were allowed through the consolidated impugned judgment dated 27.05.2005. Hence, the instant appeals as well as Civil Miscellaneous Applications.
11.The learned counsel for the Appellants submits that the impugned judgment of the High Court is based upon misreading and non-reading of evidence and misinterpretation of the law declared by this Court. He maintains that the High Court has set aside the concurrent findings of fact recorded by two Courts below although the Respondents did not satisfy the test justifying interference under section 115 of the Code of Civil Procedure, 1908. He adds that while determining the question of inheritance, the High Court erred in law by holding that Shahab-ud-Din was the last male owner for the purpose of determination of heirs. He has further pointed out that the suits were patently barred by time and the finding of the High Court to the contrary is neither supported by the record nor relevant provisions of the law. He has finally argued that the finding recorded by the High Court to the effect that Mst. Imam Sain was a limited owner is not based upon the correct interpretation of the factual and legal position as well as the declared law on the subject.
12. The learned counsel for the Respondents has supported the impugned judgment.
13. We have heard the learned counsel for the parties and gone through the record. The most material question requiring determination in this matter is whether the estate of Shahab-ud-Din was for the purpose of inheritance governed by the custom or Sharia. As a corollary whether the property obtained by Mst. Imam Sain in lieu of the property left by her in India was as full owner or as a limited owner under the settlement scheme. The evidence produced by Zulfiqar Ali and Mst.
Imam Sain as well as copies of the mutation placed on record show that after the death of Shahab-ud-Din his property devolved on different persons either under custom or through some sort of family arrangement and such devolution most certainly did not take place under the Sharia.
This is evident from the following facts:- i) The attestation of mutation No,347 was kept pending for the reason that Mst. Janat Bibi one of the widows .of Shahab-ud-Din was on the family way. On the birth of Dewan Muhammad the entire property was mutated in his favour. This was despite the fact that besides two widows of Shahab- ud-Din namely Mst. Janat Bibi and Mst. Imam Sain there were other legal heirs including Mst.
Jannat Bibi (mother of Shahab-ud-Din), two sisters namely Mst. Bakhshai and Mst. Roshani and a daughter namely Mst. Noor Elahi (from the womb of Mst. Imam Sain). All other legal heirs were ignored and the mutation was attested on 12.02.1920 in favour of Dewan Muhammad alone; ii) When Dewan Muhammad passed away, mutation No,347 was sanctioned in favour of Mst. Janat Bibi (mother of Dewan Muhammad) and Mst. Imam Sain (step-mother of Dewan Muhammad) both being widows of Shahab-ud-Din; and iii) On the death of Mst. Janat Bibi (mother of Dewan Muhammad), mutation No,861 was sanctioned in favour of Mst. Imam Sain (step-mother of Dewan Muhammad) alone to the exclusion of other legal heirs who were admittedly alive.
14. Entries in mutation No,347 clearly indicate that Mst. Imam Sain and Mst. Janat Bibi (widows of Shahab-ud-Din) were given this property as limited owners. These entries are sufficient to conclude that neither Dewan Muhammad nor his real mother and stepmother and thereafter on the death of his real mother, the stepmother (Mst. Imam Sain) acquired the property as full owner.
We are in no manner of doubt that their status throughout had been that of limited owners under the custom. The learned High Court therefore correctly came to the conclusion that inheritance of Shahab-ud-Din at the relevant time was governed by custom and after his death his property devolved upon some (not all) legal heirs under the custom and not on the principles of Shariat Law.
15. Having held that Mst. Imam Sain was holding the property as a limited owner in India, when she filed the claim in Pakistan in lieu of the property of Shahab-ud-Din, the last male owner, as his widow, the property allotted to her conferred on her a right as a limited owner and in case of her death or termination of the limited ownership, the property was to devolve on the heirs of the last male owner namely Shahab-udDin and not on her heirs as full owner. The law in this regard has been settled by this Court in the case of Additional Settlement Commissioner (Land), Sargodha v.
Muhammad Shafi and others (PLD 1971 SC 791) in which it was clearly and categorically held that where a female recorded in special Jamabandi as a limited owner under custom migrated to Pakistan and filed a claim under Punjab Refugees (Registration of Land Claims) Act, 1949, the property allotted to her in lieu of the limited estate abandoned in India would on her death devolve on the heirs of the last male owner of the property left in India and not on her own heirs. The ratio of said report is on all fours with the instant case. There is not even an iota of evidence on record that the property in question was held by Mst. Imam Sain as an independent full owner and the argument of the learned counsel for the Appellants to the contrary is misconceived.
16.The learned counsel for the Appellants has argued that the legal heirs of Shahab-ud-Din were required to initiate proceedings to assert their rights within a period of one year of the enforcement of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 (Act, 1975) which they failed to do. As such, the claim of the legal heirs was barred by time and the learned trial Court as well as the first appellate Court were justified in dismissing the suits is also misconceived. The controversy regarding applicability of sections 2 and 3 of the Act, 1975 stood finally settled by this Court in the case of Hashmat Ali v. Jantan (1993 SCM R 950) where it was finally held that the Revenue Courts were bound to incorporate the directions, decrees, etc issued by the Civil Courts by declaring rights of the last male owner. With the enforcement of the Act, 1975 heirs of last male owner automatically become co-sharers in the property. Fresh limitation runs on account of recurring cause of action. Consequently, the heirs of last male owner could take the benefit of pendency of the suits and a decree declaring rights of last male owner could be passed in light of the aforenoted judgment of this Court as well as the Act, 1975. The heirs of the last male owner were therefore not required to initiate proceedings under the Act, 1975.
17.The learned High Court was also right in coming to the conclusion that the family of Shahab- ud-Din was governed by custom; Mst. Imam Sain acquired the property under custom as a limited owner; she filed her claim in Pakistan as limited owner under custom; and the question of inheritance of Shahab-ud-Din deceased who was the last male owner shall be settled in light of the law declared by this Court in the case of Additional Settlement Commissioner (Land) Sargodha ibid. As a consequence and a necessary corollary to the above, on the death of the last male owner, the property in question would devolve upon all those persons, who would have been entitled to succeed under West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 according to their respective shares.
18.We notice that the learned High Court has not only safeguarded the interests of bona fide purchasers, without notice but has determined the question of legal heirs of Shahab-ud-Din deceased in paragraph 22 of the impugned judgment. The learned counsel for the Appellants has not contested the fact that the said persons were indeed the legal heirs of Shahab-ud-Din. He, however, pointed out that some of the shares of the legal heirs calculated by the learned High Court are not entirely correct. We do not consider it appropriate to go into that question at this belated stage. Suffice it to say that if any objections regarding incorrect determination of the shares are raised before the executing Court, it shall be competent to determine such shares of the parties in accordance with law.
19.We do not subscribe to the argument of learned counsel for the Appellants that the impugned judgment and decree is based upon misreading and non-reading of evidence on record and misinterpretation or wrong application of the declared law of this Court. Likewise, we are not impressed by the argument of the learned counsel for the Appellants that concurrent findings of fact recorded by two Courts below have been interfered with by the High Court without valid reasons. We find that the questions raised in the revision petitions amply satisfied the test justifying interference under section 115, C.P.C. and the High Court lawfully and for valid reasons interfered with and over turned the findings of two Courts below which were based upon an incorrect and erroneous reading and interpretation of the settled law on the subject. On the basis of our examination of the evidence and material on record, we find that neither the question of limitation nor the principle of res judicata was attracted to the facts and circumstances of the instant cases.
We have reappraised the evidence and have arrived at the same conclusions as the learned High Court. No other ground was pressed by the learned counsel for the Appellants. We find that the impugned judgment of the learned High Court is well reasoned, based upon proper appraisal of the evidence and correct interpretation and application of the law on the subject as declared by this Court.
20. Above are the reasons for our short order of even date whereby the titled Civil Appeals as well as Civil Miscellaneous Application have been dismissed. The said order, for ease of reference is reproduced below:- "For reasons to be recorded later, we do not find any merit in these cases, the same are accordingly dismissed. The impleadment applications so also applications for bringing on record the LRs are also dismissed. As regards the issue that while determining the shares, the learned High Court has committed an error, suffice it to say that if any objection about the incorrect determination of the shares is raised before the executing Court, it shall be competent to determine the shares of the parties strictly in accordance with law."