IKRAMULLAH KHAN, J.- Through the instant petition, petitioners have challenged the impugned judgment and decree dated 30.07.2004, rendered by learned Additional District Judge-I, Charsadda, whereby the appeal filed by the petitioners against the judgment and decree dated 06.02.2001 of the learned Civil Judge, Tangi was dismissed.
2. Briefly stated facts leading to filing of the instant revision petition was that a civil suit was instituted by plaintiff Fazal Malik for declaration and permanent injunction to the effect that he was owner in possession of his shares in the suit property, fully described in the head note of the plaint, situated in three Moza namely Qulba Sherpao, Tangi Nusrat Zai and Hisara Barani, inherited by him, on death of his father Abdul Wahid, and uncle Abdul Ahad. The plaintiff Fazal Malik had also challenged the entries in the revenue record in the name of Mst: Meman Pari effected through mutation No.1431 in the record of right. The respondents contested the suit by raising numerous legal and factual objections over the maintainability of the suit. Issues were framed and after conclusion of trial the suit was dismissed vide judgment dated 06.02.2001. Appeal against the impugned judgment of learned Civil Judge, Tangi was preferred before the appellant Court, which was dismissed vide impugned judgment dated 30.07.2004, hence the instant revision petition.
3. Learned counsel for the petitioners contended that the impugned judgment is against law and facts on record; that the learned Courts below have not properly appreciated the evidence on record; that on promulgation of the North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935, petitioner was entitled in term of Section 3 of the above mentioned Act for his shares in the suit property according to the injunction of Islam, however, the learned Courts below have illegally non suited the petitioner on question of limitation and also not properly appreciated the Provisions of Section 3 of North- West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935, whereby occasioned gross miscarriage of justice.
4. On the other hand, learned counsel for respondents argued that the suit instituted by petitioner was hopelessly time barred despite the fact that Fazal Malik predecessor in interest of petitioners had disposed of his shares in the suit property through various sale transactions and he was well aware of the entries effected in record of right before the year 1926 through mutation No.1431, but he never challenged the same within prescribed period of limitation provided under Article 120 of the Limitation Act, therefore the impugned judgments are result of proper appreciation of evidence and relevant law could not be interfered with by this Court in exercise of its revisional jurisdiction.
5. I have heard learned counsel for the parties in light of available record and relevant law.
6. According to the available record the suit property was ownership of two brothers namely Abdul Ahad and Abdul Wahid before the year 1926. The record further reveals that on death of Abdul Ahad his whole shares in the suit property had transferred to his sole survived daughter Mst: Meman Pari vide mutation No.1431 dated 19.03.1924 and the same mutation No.1431 was given effect to, in the periodical record/Jamabandi for the year 1926-27. On the same date the inheritance mutation of Abdul Wahid had also attested vide mutation No.1432, whereas the shares of deceased Abdul Wahid had transferred to Mst: Rabia (mother of propositus Abdul Wahid) and his widow Mst: Bakht Jana in equal shares in accordance with the prevailing law of Riwaj. However, Mst: Bakht Jana transferred her shares vide mutation No.1781 dated 28.03.1926 to her sole son Fazal Malik, the predecessor in interest of petitioners, so in the Jamabandi for the year 1926-27, the suit property was recorded in the name of Mst: Meman Pari, predecessor in interest of respondents to the extent of half of the whole property left by both the propositus mentioned above, while the rest of the half property had entered in the name of Mst: Rabia, mother of Abdul Ahad and Fazal Malik son of Abdul Wahid in equal shares. On death of Mst: Rabia mother of the propositus Abdul Wahid and Abdul Ahad her inheritance mutation No.987 was attested on 25.03.1945 in the name of Fazal Malik and Mst: Meman Pari according to injunction of Islam in the ratio of 2:1 respectively and the same entries are still holding the field, however, on death of Fazal Malik his shares had transferred to present petitioners while that of Mst: Meman Pari to respondents herein.
7. Similarly the suit property legacy of Abdul Ahad and Abdul Wahid in Moza Tangi Nusratzai was entered in the Jamabandi for the year 1926-27 in the name of Fazal Malik to the extent of half shares, while rest of the half shares were entered in the name of Mst: Rabia and Mst: Meman Pari in equal shares, while on death of Mst: Rabia her legacy was entered in the name of Fazal Malik and Mst: Meman Pari in accordance with injunction of Islam in the ratio of 2:1 respectively. While in Moza Hisara Barani Tehsil Tangi, the suit property entered in the name of Fazal Malik and Mst: Meman Pari in equal shares, but lateron due to marriage of Mst: Meman Pari, her whole shares had entered in the name of Mst: Rabia, grandmother of Mst: Meman Pari vide mutation No.57 dated 29.06.1934. On death of Mst: Rabia her inheritance muta tion No.987 had attested in the name of Fazal Malik and Mst: Meman Pari at the ratio of 2:1 shares respectively.
8. The above mentioned all mutations before 1935 were effected and attested in accordance with prevailing law of Riwaj, however, on promulgation of North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935, no any changes were effected in accordance with Section 3 of the same Act. The Provisions contained in Section 3 of North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935, if reproduced would be reads as:- Section 3---Repeal of provision of previous law .
(1) On and from the day of the enforcement of this Act, section 27 of the North-West Frontier Province Law and Justice Regulation (No.VII of 1901) shall be repealed in so as far as the Muslims are concerned.
(2) Whenever a question relating to the succession upon the death of a Muslim arises in any Court, the rule of decision shall be according to Muslim Personal Law (Shariat) as if that law had been applicable at the time of such death.
9. The above mentioned Provision of law in unequivocal terms applied Section 3 retrospectively and no question of limitation arises in cases where the controversy brought before the Court pertaining to legacy of a Muslim died before 1935 in the era of Riwaj.
10. In case of "Mst: Suban Vs ALLah Ditta & others" (2007 SCMR 635), the Apex Court is held that period of limitation starts running not from the time of death of predecessor in interest, nor even from the date of mutation, if there be any, but from the date when right of any such co-shares/co-inheritors in such property was denied and further interpreting the law of limitation. It is held that mutation does not confer on anyone any right in any property as revenue record is maintained only for realization of land revenue and does not be itself confer any title on anyone.
11. This Court in case of "Mst: Muridan Bibi and another Vs Ghulam Fareed & 07 others" (2014 CLC 1362), is held that wrong entries in Jamabandi repeated in the subsequent Jamabandi would give fresh cause of action and suit could not be termed as time barred. Similar principle of law is also enumerated by Apex Court in case titled "Mst: Gohar Khanum & others Vs Mst: Jamila Jan & others" (2014 SCMR 801).
12. This Court in case of "Mst: Zinat-un-Nisa & 02 others Vs Abdul Wahab & another" (2005 CLC 1383), is held that inheritance mutation excluding daughters due to prevalence of Riwaj at the time of death of deceased on promulgation of North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935, could be given retrospective effect. The deceased would be deemed to have died under domain of Muslim Law, even if death had taken place before promulgation of Act, 1935. The same principle of law is also held by this Court in case of "Miskeen & others Vs Mst: Khudeja alias Mirza Noor & others" ( 2001 MLD 1790 ).
13. So, keeping in view the Provision of Section 3 of the Muslim Personal Law (Shariat) Application Act of 1935 and the principle of law enumerated by the Apex Court and judgments mentioned hereinabove mere attestation of mutation excluding a co-sharer or female co-sharer could not be made basis for holding that limitation would run against a plaintiff from the date of attestation of impugned mutation, while in cases where matter exclusively pertaining to illegal entries made during course of Riwaj which were kept intact even after promulgation of Muslim Personal Law (Shariat) Application Act of 1935, question of limitation or adverse possession would not operate as a barring factor in the way of correction of entries or readjustment of shares of LRs in accordance with injunction of Islam, therefore, the findings of learned Courts below could not sustain, hence this revision petition is allowed and both the impugned judgments are set aside and consequently mutation No.1431 and rest of mutations in respect of legacy of Abdul Ahad, where his whole legacy was transferred to Mst; Meman Pari are set aside. The Revenue Authorities are directed to make the relevant correction in the record of right keeping in view Section 3 of the Muslim Personal Law (Shariat)
Application Act of 1935, in all the suit property.