AMIN-UD-DIN KHAN, J.--- Through this civil revision the petitioners have challenged the judgment and decree dated 02.3.2017 passed by the learned Additional District Judge, Bhakkar whereby the appeal filed by the respondents-plaintiffs was accepted, by way of which, the judgment and decree dated 27.6.2016 passed by the learned Civil Judge 1st Class, Kallor Kot District Bhakkar dismissing the suit, were set aside.
2. The brief facts are that the respondents/plaintiffs on 02.9.2002 filed a suit for declaration that they be declared owner of 2/3 share of land measuring 518-kanals 10-marlas out of total land measuring 777-kanals 16-marlas and the defendants have no concern with the suit property. The respondents claiming to be collateral of the last male owner had challenged the order-passed by the Consolidation Officer dated 08.2.1986 whereby. Mst. Sharifan was declared full owner. The case at pleaded by the plaintiffs/respondents that Abdul Razzaq was the original owner and he was governed in matters of inheritance through custom. It is pleaded that the property was transferred in the name of Mst. Sharifan as mother of the deceased who passed away long before the application of Shariat Act, therefore, she was limited owner and was entitled to receive 1/3rd share from the legacy of her son Abdul Razzaq and the plaintiffs are entitled to receive 2/3 share. It is the case of plaintiffs that mutation No.2689 was entered in favour of collaterals to receive 2/3rd share and in this regard, there was a suit pending in the civil court of Kallor Kot filed by Fakhar-ud-Din to challenge the distribution of assets through mutation of inheritance and therefore the Consolidation Officer was having no authority to declare Mst. Sharifan as full owner vide order dated 04.7.1987.
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. Vide judgment and decree dated 27.6.2016 suit was dismissed by the learned trial court while holding that suit is barred by time, bad for non-joinder and mis-joinder of necessary parties and the plaintiffs also failed to seek consequential relief, theyefore, issue No.2 was also decided against them but decided issue No.11, which relates to the fact that whether Mst.
Sharifan was limited owner, and issue No.13 qua legal heirs in favour of plaintiffs. The plaintiffs- respondents preferred an appeal, whereas the petitioners/ defendants preferred cross-objections and another appeal was preferred by Ghulam Mustafa. Both the appeals as well as the cross objections were decided vide consolidated judgment and decree dated 02.3.2017 whereby the appeal filed by Muhammad Yamin etc was accepted and the cross objections were dismissed.
Hence, this civil revision by the legal heirs of Mst. Sharifan.
3. I have heard the learned counsel for the parties at full length and gone through the record minutely. I have also heard the learned counsel for the applicants of CM No.2-C of 2017 which has been filed by Muhammad Idrees father of Ghulam Mursaleen etc. the purchaser of part of the suit land through registered sale deed No.237 registered on 04.9.2002 as well as another application, again numbered as CM No.2-C of 2017 by the office, under Order I, Rule 10 of the C.P.C. moved by the legal heirs of Fakhar-ud-Din the person who previously filed suit. Both these applications are also being decided through this judgment.
4. The document RL-II No.100 issued in favour of Mst. Sharifan mother of Abdul Razzaq does not show that it was issued as a limited owner and further it is mentioned the name of Aziz-ud-Din who is husband of Mst. Sharifan. It has been produced as mark "A". As admittedly previously one Fakhar- ud-Din filed a suit in which the predecessor of present plaintiffs namely Niaz Muhammad was defendant No.1 and the suit was filed on 14.10.1980 copy of which has been produced as Exh.P-1.
Fakhar-ud-Din also claimed to be the collateral of Abdul Razzaq and claimed 2/3 share in the same suit land, which has been claimed now by the plaintiffs of present suit. The said suit was resisted by the present petitioners through filing written statement, which has been produced as Exh.P-4, stating that the matter is pending before the Board of Revenue, therefore, the civil court has no jurisdiction. The suit was dismissed vide judgment and decree dated 04.07.1987. Against the dismissal of said suit Fakhar-ud-Din preferred an appeal and Niaz Muhammad also filed cross objections. The appeal was dismissed while upholding the judgment and decree passed by the learned trial court, against which Fakhar-ud-Din preferred Civil 'Revision No.281/1992, which Was withdrawn on 08.5.2002 and the prayer was made that suit be also dismissed as withdrawn and the prayer was accepted and suit as well as revision were dismissed as withdrawn. Against said order of dismissal of revision and the suit, it is stated that Niaz Muhammad filed some review petitions before this court and even they approached the august Supreme Court of Pakistan through Civil Petition No.2793-L of 2002, the leave was granted on 31.10.2006, same was converted into Civil Appeal No.2040/2006, which was dismissed on 16.3.2010.
5. Learned counsel for the respondents states that as mutation No.2689 was cancelled, therefore, the revision as well as the suit were withdrawn by the counsel representing Fakhar-ud-Din which order was challenged by the predecessor of plaintiffs of present suit but failed, therefore, they were forced to file the suit. I have noticed that through Exh.P-5 vide order dated 08.2.1986 the mutation was cancelled and thereafter the matter was remanded by the Board of Revenue on the ground that RL-II in favour of Mst. Sharifan, whereby she was recorded as owner and the disputed mutation in favour of Niaz Muhammad etc was passed behind the back of Mst. Sharifan and without any backing of fact that she was the limited owner. This order was passed on 08.2.1986. The plaintiffs of above-stated suit never succeeded in the revenue side for their claim and further even in the instant suit the revenue officials as well as province of Punjab have not been impleaded as defendants. Needless to state that without impleading the province of Punjab, the order of Consolidation Officer dated 08.2.1986, whereby the revenue record was maintained in accordance with RL-II in favour of Mst. Sharifan could not have been challenged. When the civil revision filed by Fakhar-ud-Din was withdrawn and the suit was also withdrawn, the evidence of said suit as well as pleadings and part of judgment and decree passed in favour of Fakhar-ud-Din or the predecessor of present plaintiffs cannot be used unless produced in evidence and proved in accordance with law. The certified copies of said record have been produced without formal proof of said documents, the certified copy cannot be read in favour of the respondents/plaintiffs of the present suit when the earlier suit was withdrawn by the plaintiffs of said suit. The matter of limitation was of great importance. The allotment in favour of Mst. Sharifan was made in the year 1951. The first suit was filed by Fakhar-ud-Din on 14.10.1980. A suit for declaration of title can be tiled within a period of six years under Article 120 of the Limitation Act, 1908. When the plaintiffs of present suit joined the proceedings of suit filed by Fakhar-ud-Din on 14.10.1980, then the filing of instant subsequent suit on 04.9.2002 is certainly barred by time. In this context, reliance can be placed upon the judgments reported as "Ghulam Haider and others v. Murad through Legal Representatives and others" (PLD 2012 Supreme Court 501) and "Faqir Hussain and others v. Ibrahim and others" (PLD 2011 Supreme Court 648)". Further the persons who were unable to challenge alienation for variety of reasons and legal objections including the one that suit was barred by limitation were given opportunity to file fresh suit by Sections 2 and 3 of the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act (XXV of 1975), the period is one year to file a fresh suit. Therefore, by the principle under the said law the suit is also barred by time. Further reliance can be placed upon "Mst.
Salamat Bibi through L.Rs. v. Yameen through L. Rs. and others" (2006 CLC 726)" where a maximum period of one year to file fresh suit has been provided under section 3 of the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act (XXV of 1975). Even in the matter of inheritance the suit must be filed within the prescribed period of limitation and further the question of limitation cannot be considered a technicality in the matter of inheritance. With this regard reliance is placed upon "Riaz Hussain and others v. Mst. Aisha Bibi and others" (2015 YLR 1903)".
6. There is yet another defect in the suit, as neither the provincial government nor its officials have been impleaded as defendants in the suit, therefore, the act done in the official capacity in performance of their duties i.e. correcting the record showing Mst. Sharifan as full owner of suit property cannot be set aside when the province of Punjab has not been impleaded as party.
Moreover, there is also another defect in the suit that some portion of suit property was transferred through mutation of exchange with Muhammad Idrees bearing No.284 attested on 24.8.1960 and the property received in exchange was further mutated in the name of Ghulam Mursaleen through gift mutation No.1369 attested on 21.8.1985, which has been produced as Exh.P-22 and rest of the land was transferred through registered sale deed dated 04.9.2002 in favour of Abdul Latif etc, though on the basis of said sale deed mutation No.3655 was attested on 30.12.2004 which is Exh.P- 28 but the sale deed has not been produced and the said sale has not been challenged in the suit.
In these circumstances, the findings recorded by the learned first appellate court are absolutely against the record, which are result of misreading and non-reading of evidence available on the file and the law declared by this court as well as the august Supreme Court of Pakistan.
7. For what has been discussed above, this civil revision is accepted and the impugned judgment and decree dated 02.3.2017 passed by the learned Additional District Judge, Bhakkar are set aside and those of the learned trial court dated 27.6.2016 dismissing the suit filed by the respondents- plaintiffs are restored.
8. In the above circumstances, when the revision has been accepted and the suit stands dismissed, there is no need to further dilate upon the applications for impleading the applicants as party in the instant civil revision. Therefore, both the applications stand disposed of as such.