AHMAD NADEEM ARSHAD, J. Through this revision petition, petitioner has called into question the validity & legality of the judgment and decree dated 29.06.2015 of the learned Appellate Court, whereby while accepting the appeal of the respondents, judgment & decree dated 23.05.2012 of trial Court was set-aside and as a consequence thereof the suit of petitioner was dismissed.
2. The facts as borne out of the pleadings of the parties are that predecessor of the petitioners namely Mst. Resham Begum instituted a suit for declaration, perpetual injunction and mandatory injunction on 13.10.2008 and sought declaration to the effect that she being daughter of Raggah and Mst. Rajjo is entitled to inherit 1/3rd share from the land measuring 50 acres, 01 kanal, 01 marla falling in Khewat No.83/77, khatoni No.42 to 52, situated at Chak No.363/EB, Tehsil Pakpattan, District Montgomery, presently Tehsil Burewala, District Vehari and the defendants have no concern whatsoever with the same and mutation No.2 dated 19.03.1935, whereby, inheritance of Raggah son of Mangoo was sanctioned only in favour of his widow Mst. Rajjo, is against facts, law, void-ab- initio, having no effect upon her rights, liable to be set-aside and similarly mutation sanctioned in the month of September 1937 in favour of Achaar son of Mangoo (brother of Raggah) from Mst.
Rajjo widow of Raggah and exchange mutation No.30 dated 24.05.1944 from Gehana etc. in favour of Provincial Government and all subsequent mutations are against facts, law, without notice, without jurisdiction, ex-parte, void, and liable to be cancelled having no effect upon her rights. She also prayed for the relief of perpetual injunction refraining defendants from asserting any right qua the suit property and also claimed mandatory injunction for the correction of the revenue record.
She maintained in her plaint that Lot No.11 comprising land measuring 50 acres, 01 kanal 01 marla was given on lease to Gehana son of Sahaman, Raggah son of Mangoo and Joiti daughter of Dev in the year 1930 under the provision of Section 10 of the Colonization of Government Lands Act, 1912 (Act V of 1912) (hereinafter referred to as "the Act, 1912"); that one of the original allottee namely Raggah died in the year 1935 leaving behind a widow namely Mst. Rajjo and daughter namely Mst.
Resham Begum (petitioner/plaintiff); that his inheritance mutation No.2 was sanctioned on 19.03.1935only in the name of her widow i.e. Mst. Rajjo; that Mst. Rajjo got married with Nainaa, therefore, mutation No.5 was sanctioned in favour of Achaar, the real brother of Raggah in the month of September, 1937; that subsequently exchange mutation No.30 was executed on 24.05.1944 vide Notification dated 29.11.1943 in faovur of Provincial Government and again exchange mutation No. 37 was attested in view of Notification No.299-D dated 21.01.1946 and the land of ChakNo.363/EB was transferred as alternative in Chak No. 377/EB to Ghana, etc.; that after the demise of Allah Rakhi widow of Allah Ditta her inheritance mutation No.13 dated 19.12.1961 was attested in favour of Grodas and so on; that parties are Christian and Christian Law of Inheritance is applicable upon them; that said inheritance mutations were sanctioned against Christian law of inheritance, so all the said inheritance mutations are void-ab-initio, and liable to be set-aside; that petitioner being real daughter of Raggah entitled to the whole share of Raggah son of Mangoo. The suit was resisted by defendants No.2 to 12, 20 to 22, through filing contesting written statement and raised certain preliminary objections such as the suit is time barred, not maintainable, the plaintiff approached the Court with un-clean hands, the suit is barred for mis-joinder and non-joinder of necessary parties and on facts alleged that Resham Begum D/o Raggah was not alive at the time of demise of Raggah, however, admitted that Raggah had a daughter namely Resham Begum who was died in his life time; that after the death of Raggah her widow contracted marriage with one Nainaa and from said wedlock a baby girl was born who was also given the name of Resham; that present plaintiff namely Resham Begum is not the same Resham Begum who was daughter of Raggah but she is the Resham Begum who was born from the wedlock of Nainaa with Mst. Rajjo, therefore, she is not entitled for any inheritance from Raggah and prayed for dismissal of the suit.
Learned trial Court, keeping in view divergent pleadings of the parties framed necessary issues and invited the parties to produce their respective evidence, after recording evidence of the parties pro and contra, oral as well as documentary decreed the suit vide judgment and decree dated 23.05.2012. Feeling aggrieved, respondents preferred an appeal which was allowed by the learned appellate Court vide judgment and decree dated 29.06.2015. Being dis-satisfied petitioner approached this Court through instant Civil Revision.
3. I have heard learned counsel for the parties and perused the record with their able assistance.
4. Petitioner mainly challenged mutation No.2 dated 19.03.1935 through which inheritance of Raggah was transferred only to his widow namely Mst. Rajjo and mutation No.5 sanctioned in the month of September, 1937 through which the property inherited by Mst. Rajjo was transferred. The petitioner claimed that she is real daughter of Raggah and according to the Christian Law she is entitled to inherit the property owned by Raggah, whereas, the stance of the respondents was that although Raggah had a daughter with the name of Mst. Resham Begum but she died during his life time and after the death of said Raggah, his widow namely Mst. Rajjo inherited his property who contracted second marriage with Nainaa and as a result of said marriage a girl was born who was also given the name of Resham Begum, and plaintiff Resham Begum is not daughter of Raggah rather daughter of Nainaa, therefore, the mutations were rightly sanctioned. The learned trial Court reduced the said controversy by framing issues No.1, 2 & 3 and after full-fledged trial, in the light of evidence brought on record concluded that plaintiff is the daughter of Raggah, set-aside the impugned mutations and decreed her suit. The learned appellate Court reversed the findings of the learned trial Court mainly on the grounds that firstly the petitioner failed to establish that she is daughter of Raggah and secondly that her suit is badly time barred.
5. The respondents alleged that at the demise of Raggah, his daughter namely Resham was not alive, therefore, the inheritance mutation was sanctioned only in favour of his widow Mst Rajjo. But this fact was negated itself by the mutation No.2 dated 19.03.1935, (brought on record as Exh.P-1 and Exh.D-1) whereby, the Revenue Officer while sanctioning the inheritance mutation of Raggah admitted the presence of a minor daughter of deceased namely Mst. Resham. For the sake of clarification order passed by Revenue Officer at the time of sanctioning of mutation No.2 dated 19.03.1935 (Exh.P-1/Exh.D-1) is reproduced in verbatim as under:- Perusal of said order it is abundantly clear that at the time of sanctioning of inheritance mutation No.2 of Raggah, his daughter namely Resham was alive but she was not given any share from his inheritance and share of Raggah was inherited only to his widow namely Mst. Rajjo. Respondents failed to rebut the findings recorded by Revenue Officer at the time of sanctioning of mutation on 19.03.1935, whereby, he admitted presence of a daughter of Raggah with the name of Resham.
Respondents also alleged that the plaintiff with a name of Resham Begum is not the same lady who is daughter of Raggah, rather she is daughter of Mst. Rajjo and Nainaa. As this fact was alleged by respondents, therefore, it was their duty to prove this fact through reliable and trust worthy evidence but they failed to discharge initial burden. Therefore, it is concluded that plaintiff Mst. Resham Begum was the same lady who born from the wed-lock of Raggah with Mst. Rajjo.
6. Now question for determination is whether mutation No.2 and mutation No.5 (which are basic mutations) were rightly sanctioned or not in presence of Mst. Resham Begum daughter of Raggah.
7. Undeniably, the suit property was allotted to Gehana son of Sahaman, Raggah son of Mangoo and Juti daughter of Dev in the year 1930 on lease under the provision of Section 10 of the Act, 1912.
The status of Raggah upon the suit property was of tenant/ original tenant. Section 3 of the Act, 1912 defines the terms tenant and original tenant which read as under: - "Tenant:- Means any person holding land in a colony as a tenant of Government and includes the predecessors and successors-in-interest of a tenant".
"Original Tenant: Means any person to whom a tenancy is first allotted by the collector and includes the male transferee of such a tenant and any male nominated by the Collector in accordance with the provision of section 21 to succeeds a female to whom a tenancy was first allotted."
8. Section 20 of the Act, 1912 deals with inheritance of tenancy rights which describes that upon the death of original tenant, in the absence of male lineal descendants, the tenancy shall devolve upon the widow of the tenant until she dies or remarries, failing the widow tenancy to devolve upon the un-married daughters of the tenant until they died or marry or lose their rights under the provisions of the Act, 1912. For reference Section 20 of the Act, 1912 is reproduced as under: - "20. Succession to tenants acquiring otherwise than by succession. Subject to the proviso to section 14, when, after the commencement of this Act, any original tenant dies the succession to the tenancy shall devolve in the following order upon.
(a) the male lineal descendants of the tenant in the male line of descent. (The term lineal descendants shall include an adopted son whose adoption has been ratified by a registered deed);
(b) the widow of the tenant until she dies, or remarries or loses her rights under the provisions of this Act;
(c) the unmarried daughters of the tenant until they die or marry, or use their rights under the provisions of this Act;
(d) the successor or successors nominated by the tenant by registered deed from among the following persons, that is to say, his mother, [his pre-deceased son's widow, his pre-deceased grandson's widow], his married daughter, his daughter's son, his sister, his sister's son, and the male agnate members of his family; and
(e) the successor or successors nominated by the Collector from among the persons enumerated in clause (d) of this section."
9. The rules of succession contained in clauses "a", "b", & "c" of Section 20 of the Act, 1912 provide that a widow inherited the tenancy under Section 20(b) in the absence of male lineal and is subject to the condition that she will hold the estate only till she remarries or dies or otherwise losses her right under the provisions of the Act, 1912. Meaning thereby, the estate being conferred on her was only limited one and the character of this limited estate was determined only by the statute.
Whereas, in presence of widow, daughters will not inherit the tenancy rights and they will only succeed under Clause "c" when neither any male lineal descendants are available nor any widow is survived at the time of opening of succession of tenancy rights.
10. Section 20 of the Act, 1912, governs the succession to the tenancy rights of the original tenant whereas, section 21 of the Act, 1912, contains the rule of successions of the tenant who inherited the same from the original tenant. For reference Section 21 of the Act, 1912 is reproduced as under: - "21. Succession to tenants acquiring by succession.-- When, after the commencement of this Act any male tenant, who is not an original tenant, dies, or any female tenant dies, marries or re- marries, the succession to the tenancy shall devolve:-
(a) in the case of a female, to whom the tenancy has been first allotted, on the successor nominated by the Collector from the issue of such female tenant, or from the male agnates of the person, on account of whose services the tenancy was allotted to her;
(b) in all other cases, on the person or persons, who would succeed if the tenancy were agricultural land acquired by the original tenant."
11. Sections 20 & 21 of the Act, 1912, therefore, embodied two different rules of successions to the tenancy of deceased tenant applicable in different situations. Section 20 of the Act, 1912 applies to successions of tenants who are original tenants whereas Section 21 governs the case of the tenants who acquires by the succession the tenancy.
12. After demise of Raggah, his inheritance mutation No.2 was sanctioned in favour of his widow Mst. Rajjo under section 20(b) of the Act, 1912 as a limited owner with some conditions i.e. until she dies or remarries or loses her rights under the provisions of the Act, 1912. Admittedly, Mst. Rajjo, contracted second marriage with one namely Nainaa, therefore, mutation No.5 was sanctioned as she lost her right to retain the property of Raggah because of her re-marriage. For convenience order passed by the Revenue Officer for sanctioning of said mutation is reproduced in verbatim as under:- In this way, through said mutation No.5 share inherited to Mst. Rajjo from her husband Raggah was transferred to Achaar son of Mangoo, legal heirs of Bahgtoo and legal heirs of Karkoo.
13. There is no cavil with the proposition that after the full price is made and the proprietary rights are conferred in respect of land allotted to the tenant under the provisions of Act, 1912, the tenancy comes to an end and the allottee comes out of the ambit of the statements of conditions of allotment but before that the matter relating to inheritance of the tenancy governed by the Act, 1912 as describes in Section 15 of the Act, 1912 which reads as under:- "15. Purchaser to be tenant pending payment in full of purchase money.-- A purchaser from [Government] of land who has been placed in possession of the land by order of the Collector shall be deemed to be a tenant of such land until the full amount of the purchase money with any interest due thereon has been paid and the other conditions set forth in the statement of the conditions of sale issued by the Collector have been fulfilled."
Admittedly at that time neither full payment was made nor proprietary rights were conferred upon the original tenant, therefore, the status of Raggah was merely a tenant upon the suit property and his tenancy rights to be inherited according to the Act, 1912.
14. The matter of Christian inheritance in the subcontinent including our country is governed by the provisions of Part-V Chapters I & II, section 29 & 37 of the Succession Act, 1925. In case of Christians whereby in intestate succession, the property of the deceased would be inherited by the surviving child and if more than one, it shall be equally divided amongst all the surviving children. As held by august Supreme Court of Pakistan in the case of "Mst. Inayat Bibi through legal heirs v. Issac Nazir Ullah and two others" (PLD 1992 SC 385) that the Customary Successions, so far as Christian are concerned, was altered by the Succession Act, 1925, whereby the same was abolished in the Punjab and Christian female was allowed to inherit in presence of the male heirs and in the light of Succession Act, 1925, by statutory dispensation having determined the mode of succession when a Christian male died neither the custom nor any other law would be applicable. The present case is not a case of inheritance of the property of a Christian rather it is a case of inheritance of a tenancy rights, therefore, it will be dealt with according to the provisions of the Act, 1912.
15. Perusal of orders passed by Revenue Officer while sanctioning mutation No.2, it appears that it was sanctioned under Section 20(b) of the Act, 1912 whereas mutation No.5 was sanctioned in favour of Achaar etc., when Mst. Rajjo contracted second marriage in the light of Section 21(b) of the Act, 1912. Both the mutations were sanctioned in accordance with the law applicable upon the tenancy rights of Raggah and Mst. Resham Begum was rightly excluded from his inheritance.
16. Next question for determination is that whether suit of the petitioner is within time. Petitioner instituted the suit on 13.10.2008 by challenging the vires of mutation No.2 dated 19.03.1935 and mutation No.5 dated 03.08.1937/September, 1937 after the lapse of 73/75 years. Learned trial Court framed issue No.4 with regard to limitation and decided the same in favour of plaintiff. The learned appellate Court while meeting with arguments of learned trial Court reversed the findings. Learned trial Court with the impression that as the superior courts held that limitation does not run against the rights of inheritance declared that suit was not barred by law. The learned appellate Court reversed the said findings on the ground that plaintiff was fully conscious and aware of her rights for last more than 50 years and did nothing except asking defendants to give her due share but did not approach any proper forum for redressal of her grievance and when she approached in the year 1955, her suits as per her own version were dismissed and concluded that her suit is barred by time. A sweeping statement that there was no limitation in case of inheritance would in fact tantamount to have re-written the law of limitation. Public interest requires that there should be an end to the litigation. Whoever wishes to dispute the presumption of co-incidents of facts and right must do so within the period provided by law, otherwise, his right if any will be forfeited as a penalty for such neglect. Law requires that persons aggrieved by any order of an authority must come to the Court and take recourse to the legal remedies with the due diligence.
17. The august Supreme Court of Pakistan while observing that law of limitation was not to be ignored entirely or brushed aside whenever property was claimed on the basis of inheritance, in a case titled "Mst. GRANA through Leal Heirs and others versus SAHIB KAMALA BIBI and others"
(PLD 2014 SC 167) held as under: - "6. 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 plaintiff 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 plaintiff/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 plaintiffs had alienated the property of her own free-will. The plaintiff's plea of being pardanashin lady and reliance on the case of Ghulam Ali was not accepted as the plaintiff 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 (PLD 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 plaintiff 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 respondents/plaintiffs in the year 1988 questioning the inheritance mutation of 1942 was declared to be barred by time. The Court held:- "The law of limitation provides an element of certainty in the conduct of human affairs. Statutes of limitation and prescription are, thus, statutes of peace and repose. In order to avoid the difficulty and errors that necessarily result from lapse of time, the presumption of coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so, within that period; otherwise his rights if any, will be forfeited as a penalty for his neglect. In other words the law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts. It requires that persons must come to Court and take recourse to legal remedies with due diligence. There have been cases where even to claim inheritance law of limitation was applied."
The Court found that the real dispute was whether a particular person was or not a legal heir of one, Mst. Khairan, whose inheritance mutation was attested in favour of appellant, Atta Muhammad.
7. 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 regularly 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 transferees 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."
In a recent judgment, the Hon'ble Supreme Court of Pakistan tilted "Syed KAUSAR ALI SHAH and others versus Syed FARHAT HUSSAIN SHAH and others" (2022 SCMR 1558) held as under: - "10. In our opinion there is a clear distinction between (a) cases in which an heir alleges that his/her rights to inheritance have been disregarded and his/her share not mentioned in the inheritance mutation, and (b) those cases in which such an heirs its idly by, does not challenge mutation entries of long standing, or acquiesces, and only comes forward when third party rights in the subject land have been created. To succeed in respect of the latter (b) category cases an heir must demonstrate that he/she was not aware of having been deprived, give cogent reasons for not challenging the property record of long standing, and show complicity between the buyer and the seller (the ostensible owner) or that the buyer knew of such heir's interest yet proceeded to acquire the land. If these two categories are kept in mind, then the judgments of this court, respectively relied by both sides, which are apparently at variance, become reconcilable.
It was further held that: - The learned Judges of the subordinate courts and the learned single Judge of the Islamabad High Court disregarded the abovementioned judgments of this Court, the principle of acquiescence, and the fact of third party interest having been created in the said Land, and that further third parties had acquired proprietary rights in the said Land. And, that such interest was acquired in land which was shown in the record of rights of long standing, which remained unchallenged. The learned Judges also ignored the fact that Ummat-ul-Aziz took no action for forty-five years, and that she submitted her application to the revenue authorities only after the creation of the third party interest in the said Land. The plaintiffs, having stood idly by allowed third party interest to be created in the said Land, and could then not complain and claim the said Land."
Therefore, the findings of learned appellate Court with regard to limitation does not require for any interference.
18. For the foregoing reasons, the instant revision petition is without any force, the judgment and decree of learned appellate Court with regard to the dismissal of the suit is maintained and upheld, however, on other grounds as mentioned supra, resultantly, the instant Revision Petition is hereby, dismissed leaving the parties to bear their own costs.