WIQAR AHMAD, J.---This order is directed to dispose of the petition filed by petitioners under section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to " C.P.C.").
2. Through a consolidated judgment dated 17.12.2013 of learned Civil Judge-II Malakand at Dargai, suit filed by the petitioners bearing No. 12/1 of 2011 and title "Khalid Mehmood and others v. Umara Khan and others" was dismissed, while the connected Suit No. 13/1 of 2011 bearing title "Mst. Naseem and others v. Khalid Mehmood and others" was decreed. The judgment and decrees were challenged by petitioners through filing their appeal in the Court of learned District Judge, Malakand at Batkhela, which was dismissed vide judgment dated 29.07.2016 of the Court of learned Additional District Judge Malakand. Both the judgments were later on impugned before this Court by filing the instant revision petition.
3. Petitioners had asserted in their plaint that the parties had been successors of one common predecessor namely Mehmood (deceased), who had mutually divided the whole property through a private partition which had been incorporated in the revenue record by entry and attestation of mutation No. 1327 attested on 20.05.1946 in Mauza Kopar , mutation No. 1169 attested on 20.05.1946 in Mauza Kopar and mutation No. 1168 attested on 20.05.1946 in Mauza Kopar of the then Malakand Agency . They had prayed for setting aside any other gift deed, partition deed, will or other instrument found contrary to the afore-mentioned mutations. The petitioners had also prayed for grant of a decree of possession by separating their share through an official partition of the land. Petitioners/plaintif fs had further asserted in their plaint that they had been legal heirs of Zoor Zameen (deceased) who had inherited the property from Umara Khan (deceased). Umara Khan was the son of Litaf, who was also having another son namely Ashraf Khan. Litaf was son of Mehmood (late), along with two other brothers namely Khuawaidad and Ali Sher. Plaintif fs/petitioners had basically prayed that the property should be repooled together as common legacy of Mehmood (deceased) and should thereafter be divided proportionately , and the decree for possession may consequentially be passed in their favour . The entire property was shown to be measuring 877 kanals and 4 marlas.
4. Mst. Naseem and others have contended in their Suit No. 13/1 of 2011 that the property in dispute had been partitioned among five (05) sons of Umara Khan (deceased) namely Muhammad Zareef Khan, Azeem Khan, Said Nawab Khan, Muhammad Nawab Khan and Zoor Zameen Khan in the year 1970 through mutual agreement.
Plaintif fs in the said suit were the success ors of Nawab Khan late, who was out of the country at the relevant time but his share had been entrusted to Zoor Zameen Khan late, the predecessor-in-interest of plaintif fs in the other consolidated suit namely Khalid Mehmood etc. On the basis of the said partition, they had claimed their respective share from the successors of Zoor Zameen Khan, who had been in possession of the property , on behalf of Nawab Khan (deceased).
5. Mr. Nija-ud-Din Yousafzai, Advocate, learned counsel for the petitioners contended during the course of his arguments that the property was originally owned by Mehmood (deceased), should be treated as his legacy and distributed according to the law of Sharia in his three sons namely . Khuawaidad Khan, Litaf (predecessor-in- interest of Umara Khan) and Ali Sher, which should further be distributed in their respective heirs and from them same should be deemed to have been devolved upon parties to the instant proceedings and their shares should be determined accordingly . He based his arguments on giving effect to section 2 of the N.W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 as well as the relevant provisions of West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962. The learned counsel further relied upon judgments reported as PLD 2002 Supreme Court 823, 2007 SCMR 729, 2017 SCMR 1476 and PLD 2013 Peshawar 38 and contended that no limitation shall run in cases of inheritance and therefore the two Courts below have wrongly non-suited the plaintif fs/petitioners on the ground of limitation. The learned counsel also relied upon judgment of the Hon'ble Apex Court given in the case of "Muhammad Anwar and others v. Khuda Yar and 25 others " reported as "2008 SCMR 905" and contended that each co-owner shall be deemed to be owners in each inch of the joint immovable property , and thus they had a legal right to pray for possession by way of partition. The learned counsel also relied upon the judgment reported as "PLD 1995 Supreme Court 131 as well as the judgment reported as 2017 YLR 1217 and contended that an admission of the party if found to be factually' incorrect cannot be used against him, and therefore the admission attributed to Khalid Mehmood, in his cross-examination may be ignored.
6. Mr. Bashirullah, Advocate, learned counsel for some of respondents submitted in rebuttal that the area now forming part of District Malakand, had earlier been an unsettled area of Malakand Agency . They further added that the area was being regulated by Frontier Crime Regulation, 1901 (hereinafter referred as "FCR") wherein N.-W .F.P.
Muslim Personal Law (Shariat) Application Act, 1935 or West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 had not been extended and same had no application in the area. Later on, Malakand Agency was converted into Malakand Protected Area and FCR was repealed, and certain laws including the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 was extended thereafter . Regarding merits of the case, learned counsel stated that petitioner No. 1 namely Khalid Mehmood had admitted the agreement deeds of 2008 exhibited in evidence as Ex. PW-1/D-2 and Ex.PW -1/D-3 - as correct and duly signed by him, wherein the earlier partition deeds of 1970 and that of 1943 had been admitted and recognized. Mr. Basirullah, Advocate, representing the legal heirs of Nawab deceased, adopted the arguments - of learned Mr. Bash irullah Khan, Advocate.
Muhammad Hanif Khan, Advocate was representing the purchasers, who submitted during the course of his arguments that those persons who had purchased portions of the property in dispute, had purchased it bonafidely from the ostensible owners and were entitled to the protection of section 41 of the Transfer of Property Act, 1882.
7. I have heard arguments of learned counsel for the parties and perused the record.
8. The two Courts below have concurrently believed the partition deed dated 01.05.1970 (Ex.DW -6/10) effected between predecessor-in-interest of the petitioners and his other brothers who were present in the country , and it was in pursuance thereof that the two Courts below had held that the property of Nawab Khan had been entrusted to Zoor Zameen Khan therein. In pursuance to such findings, suit of legal heirs of Nawab Khan had been decreed in their favour , while suit of the petitioners was dismissed. The deed Ex.DW -6/10 has rightly been accepted as a proved document by the two Courts below . This deed has been executed between three sons of late Umara Khan namely Zareef Khan, Zoor Zameen Khan and Nawab Khan as well as son of Ashraf Khan namely Mustageem Khan. The method of partition agreed between the parties was of such a nature that the persons namely Murad Khan and Nawab Khan, who had admittedly been out of country at the relevant time, had also been taken care of.
The property of Nawab Khan was entrusted to his real brother Zoor Zameen Khan while property of Murad Khan was entrusted to his real brother namely Mustageem Khan. The property has been in possession of the respective parties in pursuance to this deed and this deed has never been objected to by any of the said parties. This deed has never been even objected by the predecessor-in-interest of petitioners namely Zoor Zameen Khan in his lifetime. The other brother who was not present but had given property through the said deed namely Murad Khan has testified in the case in hand as witness and have supported and affirmed the deed as well as incorporated transaction of partition. Petitioners have filed the suit, challenging this deed indirectly at much belated stage i.e. in the year 201 1 after the death of their predecessor namely Zoor Zameen Khan.
9. Attorney for petitioners namely Khalid Mehmood has testified in the suit as PW-1. He has himself admitted the execution of deeds exhibited as Ex. PW -1/D-2 and Ex. PW -1/D-3 in his statement in the following words; {{URDU TEXT}} These agreements were itself based upon the partition deeds dated 31st August, 1943 as well as the other partition deed of 1970, and in the latter agreement Mr. Khalid Mehmood was also shown to have received a sum of Rs.
10,00,000/- from the first party in consideration of leaving his share and vacating the constructed house and Hujra along with the attachments. There is overwhelming evidence on record that the parties have not only been possessing properties in pursuance to the partition deeds mentioned above, but have been selling it further from time to time and Mr. Khalid Mehmood, petitioner No. 1 in the instant petition has himself made a lot of transactions in pursuance to the partition deeds, particularly the deed of -1970. One among the numerous transactions is the transaction of sale, whereby mother of Khalid Mehmood namely Mst. Fath-ul-Bari had purchased a large chunk of land measuring 71 kanals from Dr. Muslim Khan son of Akram Khan vide registered sale deed Ex. PW6/D-1. The transaction in between the parties turned sore and the matter was taken to Court by Khalid Mehmood and Mst.
Fath-ul-Bari by instituting a suit in the Court of learned Civil Judge-V Mardan, which matter had also been subsequently taken to this Court in FAO No. 13 of 2011, decided vide judgment dated 25th May 2011 of this Court.
In pursuance thereof, Muslim Khan purchased property from other co-owners, parties in the suit and the land of 71 kanals was transferred in favour of the decree-holder , which fact is evident from order dated 20.11.2012 of the Court of Syed Mansoor Shah Bukhari, learned Civil Judge-XI Mardan produced in the instant case, beside the other documentary evidence available on record. Khalid Mehmood has himself effected a number of transactions in the property in dispute, which property had been obtained by him as legacy of Zoor Zameen Khan, who was having it on the dint of partition deed dated 1970. As held by the Hon'ble Apex Court in the case of "Anees A. Sheikh v.
Col. (Retd.) Ghulam Masooq Qureshi" reported as 2005 SCMR 977, that admission could be used as evidence of conclusive nature, if same was proved to be unqualified. Khalid Mehoomd had though tried to add a rider to his admission that he had been shown some partition deed at the relevant time, he had therefore signed the agreement, but it is important to be noted that he was a man of mature unders tanding and dealing with all the affairs of the property , by then. Such an in-plausible reason is not sufficient to reverse the effect of admission that he has made. The judgments reported as PLD 1995 Supreme Court 131, 2017 YLR 1217 , and relied upon by learned counsel for petitioners are distinguishable in the circumstances of the case, for the reason that admission in the case in hand was also found to be correctly made and find due support from the other evidence on record. It is thus clear from evidence that partition deed of 1970 was not only admitted but the parties have also been possessing and utilizing their respective properties in pursuance thereof. I have therefore no reason to disagree with the concurrent findings of two Courts below in this respect.
10. The three mutations, relied upon by the petitioners bearing number 1327 (Ex. PW-12/6), 1169 (Ex. PW-1217) and 1168 (Ex. PW-12/8) were shown to have been attested on one and same date of 20.05.1946 in different Muzajat, Fard Patwar (copies) of these mutations were produced from the record of Patwari Halqa which did not contain the original order of Tehsildar , whereby it may have been attested. These perdu (copies) just contained an endorsement that same had been attested but the original order of Tehsildar showing its attestation in Jalsa-e-Aam {{URDU TEXT}} was not available on the mutations. When the very order of attestation of mutations could not be produced in evidence, then these mutations cannot be relied upon for any purpose and have rightly been disbelieved and ignored by the learned two Courts below .
11. So far as the suit of Mst. Naseem and other legal heirs of Nawab Khan are concerned, it is apparent from one of recital of partition deed of 1970 that property of Nawab Khan had been handed over to Zoor Zameen Khan, the predecessor-in-interest of petitioners. Said portion of the deed is relevant for the present controversy , which is reproduced hereunder for ready reference; {{URDU TEXT}} It was in pursuance to this recital as well as the consistant practice of the partie s viz-a-viz the dispute in hand, stretching over more than four (4) decades, that the legal heirs of Nawab Khan claimed their property from legal heirs of Zoor Zameen Khan. It is also clear from record that this very fact prompted the legal heirs of Zoor Zameen Khan to institute their counter suit wherein the whole distribution of the property (earlier made) had been challenged. The two Courts below have rightly decreed suit of legal heirs of Nawab Khan, as their property had been possessed by legal heirs of Zoor Zameen Khan.
12. Learned counsel for petitioner had relied upon a number of judgments reported as PLD 2002 Supreme Court 823, 2007 SCMR 729, 2017 SCMR 1476 and PLD 2013 Peshawar 38 and contended that no limitation would run in cases of inheritance. A similar view had no doubt been expressed by the Hon'b le Apex Court in its judgment in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi " reported as "PLD 1990 Supreme Court 1" but the judgment has been distinguished to some extent in the subsequent judgment of the Hon'ble Supreme Court of Pakistan rendered in the case of Mst. Grana through legal heirs and others v. Sahib Kamala Bibi and others " reported as "PLD 2014 SC 167". In the subsequent judgment, the Hon'ble Apex Court had recorded the following observation; "It appears that in a suit which involves some element of inheritance the Courts are generally quick to declare that the law of limitation would not be attracted. It is not in all cases of inheritance that the question of limitation becomes irrelevant. Even in Ghulam Ali's case the Court recognized that there could be exceptional circumstances wherein a suit based on inheritance issue of limitation may become relevant. This Court recently in some cases had invoked the principle of time limitation and acquiescence of the plaintif f material in suits of inheritance. In Mst., Phaphan v. Muhammad Bakhsh (2005 SCMR 1278 ) a suit for declaration and possession was filed in the year 1983 by the plaintif f/petitioner claiming to be the owner of the inherited property . The suit was held to be barred by time wherein mutations of the year 1959 and 1967 were challenged in the year 1983 when the plea of the defendants was that the plaintif fs had alienated the property of her own free-will. The plaintif fs plea of being pardanashin lady and reliance on the case of Ghulam Ali was not accepted as the plaintif f was found to have remained in deep slumber for 24 years despite the fact that the physical possession of the land was passed on to the defendant. Recently in the case of Lal Khan v. Muhammad Yousaf (ND` 2011 SC 657) this Court had set aside the concurrent findings of the three Courts and dismissed the suit filed on 13-5-1970, where the plaintif f had challenged inheritance mutation of 13.2.1947; the Court held it to be barred by time. The rationale of the law of limitation has been reiterated in Atta Muhammad v. Maula Bakhsh (2007 SCMR 1446 ) where the concurrent findings of the three Courts were set aside and the suit filed by the respond ents/plaintif fs in the year 1988 questioning the inheritance mutation of 1942 was declared to be barred by time.
Further ahead in the said judgment, the Hon'ble Apex Court recorded the following observations, which are very much relevant in the instant case; "It emerges from the afore discussed case-law that the law of limitation is not entirely to be ignored or brushed aside whenever property is claimed on the basis of inheritance. The conduct of such claimant may become relevant and material when the bar of time limitation is pleaded by the adversary . A defendant may show that the plaintiff by her or his acts, overt or implicit, had demonstrated acquiescence in the defendant's title to the suit properly thereby allowing him to deal with it as exclusive owner , for instance regula rly and openly disposing of parts of the property or developing it at his own expense over a period of time within the knowledge of the plaintiff. When in such circumstances the defendant/heirs transfers the property for valuable consideration the transferee is entitled to believe that the transferor had a valid title to transfer . It may be reiterated that in Ghulam Ali's case the question of interest protection of transf erees from a legal heir in a suit of inheritance was left open as the transferees were not impleaded as defendants. That is not the case here. The very facts of this case would demonstrate that the plaintiff had acquiesced in the various transfers made of the suit property from time to time."
We have already found that parties to the partition agreement had settled the matter through their mutual consent and had not challenged the same in their lifetime. Zoor Zameen Khan, the predecessor-in-interest of petitioners was party to the partition deed of 1970 'but he had never agitated against the same till his death. In the given situation, petitioners would be estopped from challenging the said transaction and their suit filed in the year 2011 would naturally be barred by law of limitation and the ratio of judgment of Hon'ble Apex Court in the case of Mst.
Garana through LRs (Supra) would squarely be applicable in the case in hand. On the basis of the said ratio, the petitioners cannot be allowed to reopen the matter of inheritance of deceased Mahmood, father of Umara Khan for the reason that the said matter had been finalized almost 'a century before as he had been the predecessor of the petitioners three (03) generations before. The matter of distribution of legacy of deceased Mahmood had neither been agitated against by any of his sons or daughters, or his grandsons or granddaughters and same cannot therefore be agitated against, by the petitioners, in the circumstances of the case.
13. Learned counsel for petitioners has also raised a plea that distribution of land was not according to section 2 of N.W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 as well as the relevant provisions of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and same were therefore liable to be set aside. It needs mentioned here that the matter relates to District Malakand, which was part of Malakand Division. Malakand Division was earlier a tribal agency established by colonial government of Great Britain in India in 1845 mainly due to the reason to secure a route to Chitral bordering Afghanistan. Malakand Agency comprised of the area of princely States of Dir, Swat and Chitral as well as the area of Bajaur . It was converted into Malakand Division in the year 1970, which comprised of the area of District Swat, Chitral, Dir and remaining part of the Malakand Agency which was known as Malakand Protected Area. The existing District Malakand was same area which comprised of the Malakand Protected Area of Malakand Agency . The Government of India Act, 1935 (hereinafter referred to as "the 1935 Act") was the first comprehensive constitutional document which, inter alia, provided for the composition, administration and related matters of the constituent units forming part of the pre-partition India including the Tribal Areas in India and their administrations. Section 311 of the 1935 Act defined and demarcated "India" and "British India" as well as the Tribal Areas. Tribal Areas were defined as, those areas along with the frontiers of India or in Balochistan, which were not part of British India, or Burma or any of Indian States or any foreign state. Sections 6 and 8 of the 1935 Act provided policy for the princely States while sections 91 and 92 "dealt with excluded and partially excluded areas. All these areas were kept out of the regular system of laws administered in rest of India, on the basis of Non-Regulation System, which provided that only those laws shall have operation in these special areas which were extended and those regulations which were issued by the Governor and assented to by the Governor General. The extension of executive authority was, however , otherwis e. Executive authorities of the province extended to these areas accor ding to section 92 of the 1935 Act. This scheme of administration was running from 1935 till partition of India. The Tribal Areas, at the time of partition were neither mentioned in the territorial boundaries nor in the arrangem ent of partition. It was however provided in the plan of 3rd June that agreements with tribal areas were to be negotiated by the successors governments. The relevant Para of 3rd June Plan was adopted by Indian Independent Act, 1947. During the post partition period, negotiations were conducted with princely States and elders of the Tribal Areas and after their assent Notificatio n No. F.9 (170)-F/48 was issued on 27.06.1950. The Tribal Areas and some princely States like Swat, Dir and Chitral were included in the Federation of Pakistan. This Notification provided that it was to take effect from 14th August, 1947. The provisions regarding Tribal Areas in the 1935 Act were amended vide Governor Orders Nos. 5 and 6 of 1949, whereby the Governor General of Pakistan assumed both legislative as well as executive author ities of these areas. Constitution of 1956 repealed the Act of 1935, but it assimilated the constitutional scheme as it existed in the 1935 Act and divided these areas into special areas, excluded areas, non-excluded areas, and Tribal areas, and the non- regulation system intact, with a bar on jurisdiction of the superior courts. Administrative changes were effected in Malakand Agency during Martial Law period, whereby the three former states were finally abolished in 1969 through Martial Regulation No I of 1969. Malakand Division was constituted comprising of the three states of Dir, Swat and Chitral and the remaining strip of the Malakand Protected Area. Through Article 4 of the West Pakistan (Dissolution) Order , 1970, the provinces were re-established and the schedule to the Articles provided the territorial limits of the provinces. The connotation "Malakand Protected Area was specificall y used in schedule to President Order No. 1 of 1970.
14. Then came the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as "the Constitution"). Article 246 of the Constitution defines the Tribal Areas as those areas which were Tribal Areas, immediately before the commencing day of the Constitution and included the Tribal Areas of Balochistan, Khyber Pakhtunkhwa provinces and the former States of Amb, Chitral, Dir and Swat. Clause "B" of Article 246 provided description of the Provincially Administered Areas (PATA). Sub-clause (i) of which is relevant herein and is reproduced hereunder for ready reference; "(i) the districts of Chitral, Dir and Swat (which includes Kalam) [the Tribal Area in Kohistan district] Malakand Protected Area, the T ribal Area adjoining [Manshera] district and the former of Amb; and."
Malakand Protected Area was also shown as part of the Provincially Administered Tribal Areas in the Constitution.
According to Sub-Article (1) of Article 247, the executive authority of the Federation as well as province was extended to Federally Administered Tribal Areas (FATA) and Provincially Administered Tribal Areas (PATA) respectively . But the laws of land were provided to be having no operation in FATA or PATA, unless the President or the Governor with the approval of the President, so directs that specific laws shall have application to a Tribal Area or specified part thereof, according to Sub-Article (3) of Article 247 of the Constitution. A scheme akin to the one existing in 1935 Act was provided in our prevailing Constitution, which remained in field till the promulgation of the 25th Constitutional Amendment on 31.05.2018, whereby all the distinctions existing between the specified areas and rest of the province has been abolished. By now, there is no difference in the existing laws and scheme of administration etc. applicable in the Malakand Protected Area, other part of the tribal territory , and the settled Districts like Peshawar , Mardan and Nowshera, as held by the Hon'ble Apex Court in its judgment rendered in the case of "National Commission on Status of Women through Chairperson and other s v. Government of Pakistan through Secretary Law and Justice and others " reported as " PLD 2019 Supreme Court 218".
15. It is evident from the constitutional mechanism reproduced hereinabove that the then N.W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 was not applicable in Malakand Protected Area and rest of PATA ipso facto. It required its extension by specific order of the Governor General under the 1935 Act, as well as in the subsequent dispensations. No instrument could be pointed out, or found whereby the N.W.F.P. Muslim Personal Law (Shariat)
Application Act, 1935 has ever been extended to this area. Same was the case with application of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. It had not been having any application in the area unless, it was made applicable on 05.01.1976 vide the Khyber Pakhtunkhwa Regulation No. 1 of 1976. Para 7 of this Regulation provided that notwithstanding the extension of laws, same shall not effect accrual of rights and finalized transactions before the promulgation of the Regulation. Relevant Para of the Regulation is reproduced hereunder for ready reference;
7. (1) If, immediately before the commencement of this Regulation, there was in force in the said Areas any law, instrument, custom or usage having the force of law corresponding to- the provisions of any of the laws applied to those Areas by this Regulation, such law, instrument, custom or usage shall, upon such commencement, cease to have ef fect in those Areas.
(2) Nothing in subsection (1) shall ef fect-
(a) the Previous operation of any such law , instrument, custom or usage; or
(b) the recovery of any tax, fee, duty, toll or surcharge recoverable under any such law, instrument, custom or usage before the commencement of this Regulation, and any such tax, fee, duty, toll or surcharge shall be recoverable as if subsection (1) had not come into force; or
(c) any penalty , forfeiture or punishment incurred in respect of any offence punishable under such law, instrument, custom or usage; or
(d) any investigation, proceeding or remedy in respect of any such penalty , forfeiture or punishment, and any such investigation, proceeding or remedy may be instituted, continued or enforced and any such penalty , forfeiture of punishment may be imposed as if subsection (1) had not come into force.
It is thus clear that West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 was not given any retrospective effect. The matters which had gotten finalized earlier were supposed to be past and closed transactions and could not be allowed to be reopened, unless the competent legislative authority of the area had provided otherwise. The matters which had attained finality , had already been dealt so by this Court in its judgment given in the case of "Sher Zada Khan v. The Commissioner (F.C.R), Peshawar and 2 others " reported as PLD 1979 Peshawar 165. This Court has quite recently held in the backdrop of merger of the area of Bajaur with the province of Khyber Pakhtunkhwa by way of 25th Constitutional Amendment, that matters which had attained finality were past and closed transactions and cannot be allowed to be reopened. Reference in this respect, may be made to judgments of this Court passed in W.P. No. 868-M of 2019 and W.P. No. 342-M of 2019.
Arguments of learned counsel for the petitioners that the partition deed of 1970 was running against provisions of N.W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 or W est Pakistan Muslim Personal Law (Shariat) Application Act, 1962, is therefore having no force.
16. In light of what has been discussed above, the petition in hand was found to be meritless and same is dismissed accordingly .