WIQAR AHMAD, J.- This order is directed to dispose of the petition Bled by petitioners, under Section 115 of Code of Civil Procedure, 1908.
2. Petitioners in the capacity of parents of Shaheed Captain Fazal Alam, brought two separate suits against respondents, claiming that being legal heirs of Shaheed captain, they had been entitled to his legacy after his Shahadah, in the shape of pension grant as well as house, allotted at Gulshan- e-Johar, Karachi. The suits were consolidated by the learned civil Court. Respondents have contested the suits by filing their written statement. Learned civil Court framed issues and offered opportunity to parties for producing pro and contra evidence. Upon conclusion of evidence, learned Civil Court dismissed both the suits, vide judgment dated 29.10.2020. Appeal filed by the petitioners, challenging judgment and decree of learned civil Court was also dismissed by learned Additional District Judge-II, Abbottabad, vide judgment dated 28.09.2021. Feeling aggrieved of both the judgments, petitioners have approached this Court through Civil Revision in hand with the prayer:- "On the acceptance of instant revision petition, judgment and decree passed by learned Additional District Judge II, Abbottabad dated 28.09.2021 in civil appeal No. 67/13 of 2020 and the consolidated judgment and decree in a civil suit No. 05/1 of 2016 and 570/1 of 2017 dated 29.10.2020 passed by learned senior civil judge Judicial-I, Abbottabad may kindly be set aside and decree may kindly be passed in suit No. 05/1 of 2016 and 570/1 of 2017 in favour of petitioner/plaintiff against contesting respondents/ defendants No. 3, 4 with cost throughout."
3. I have heard arguments of learned counsel for the parties and perused the record.
4. Perusal of record revealed that plaintiffs/petitioners had claimed right of their inheritance in the benefits received by widow of Shaheed Captain Fazal Alam. The reliefs in the plaint were sought in respect of claiming all the benefits received by the widow of Shaheed, which included certain monitory benefits as well as an apartment at Gulshan-e-lqbal Karachi. Both the Courts below have declined the relief as prayed for on the ground that the benefits received by widow of the Shaheed captain had not been falling in the definition of Tarka (legacy). Learned appellate Court in this respect has also relied on the judgment of Shariah appellate Bench of the august Supreme Court of Pakistan in the case of "Wafitqi Hakoomat-e-Pakistan Vs. Awanuunnas" reported as "PLD 1991 SC 731". In said judgment, a touchstone had been provided for discerning which benefits of a deceased employee may be treated as a grant or donation by government and which of such benefits may be treated as Tarka (legacy) of the deceased. In this respect, a broad principle has been laid down that all those emoluments, which the deceased employee is entitled to receive before his retirement or in his life, including those to which he can lay a claim in his life, would be treated as legacy or "Parka of the deceased. Rest of the amounts or benefits, which the government or his employer gives him, as a grant, donation, gift or family grant, same should be regulated according to rules of the respective department which is granting benefit in the case.
Relevant excerpts of said judgment are also reproduced here under for ready reference;
5. There are also other judgments of this Court as well as other honourable High Courts but the basic principle has been laid down in above cited judgment, which have never been authoritatively departed from. Courts below had also relied upon said judgment but had not further ventured to explore whether any of the benefits received by widow of deceased had been falling in "Parka`? So far as monitory benefits, received by the lady are concerned, same could not be shown to have been entitlement of Shaheed Captain Fazal Alam in his life time. None of those amounts could be established to be falling in the definition of "Parka and view of the learned two courts below in this respect have been based upon proper appreciation of evidence.
6. One aspect of the case, however, required interference of this Court and that was related to entitlement of petitioners in the apartment received by the widow of Shaheed Captain. It is important to be noted that for allotment of said house/apartment, regular deductions used to be effected from salaries of the Shaheed Captain, when he had been serving the nation in his former capacity as an army officer. Before embracing Shahadat, a total sum of Rs. 156,000/- has been deducted from salary of the deceased, as disclosed by Muhammad Riaz, Senior Clerk, ACM, GI-IQ Housing Directorate, while deposing as DW-l. He was entitled to lay a claim thereon in his life time.
Had he not embraced Shahadat, he would have got this apartment; might be before his retirement. His right to claim this apartment or a similar one, was very much available to him during his service. Such a benefit given to a Shaheed cannot be ousted from the definition of Tarka.
Rationale of judgment of Wifaqi Hakomat supra may squarely be applied here.
7. Another question or defense that has been raised by the defendants, was that the policy or rules of the department have not been allowing such distribution in the legal heirs. In this respect, statement of Muhammad Riaz, Senior Clerk, ACM/GHQ I lousing Directorate, Askari-I, Narrian Road, Abbottabad recorded as DW-1, may be reproduced hereunder;
8. Today, learned counsel representing Adjutant, Pension Branch, GHQ also produced copy of their policy in this regard which bears caption as "Bereaved Families Scheme". It has also laid down the following policy parameters; a. House is altd to the widow and children of the deceased offr. Accordingly name of the widow and children is mentioned in the Almt Ltr. b. Permission for sale/tfr is given, after the children of the deceased offr attain the age of 21 yrs.
NOKs of suicide cases are not entitled for alms of house under "BFS" however contribution of deceased offr will be refunded to NOKs. d. Dispute cases are decided by Dispute Committee and share in the house is distr after obtaining gr facts through DASB and MI."
9. When asked, learned counsel representing the Adjutant General, replied that it was a policy devised for regulating claims of the bereaved families. We noted that said policy was not having a force of statute or rules framed under a statute. It was neither primary nor secondary law. On the other hand, law of Shariah is supreme law of the land under the constitutional command. Article 2- A of the constitution has been promulgated, making objective resolutions as substantive part of the constitution, which provide that; "2A. the objectives Resolution to form part of substantive provisions.-The principles and provisions set out in the Objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly."
Objectives Resolution had also provided following two guidelines inter-alia, for future guidance of constituent Assembly of the newly created state; "Whereas sovereignty over the entire universe belongs to God Almighty alone and the authority which He has delegated to the State of Pakistan through its people for being exercises within the limits prescribed by Him is a sacred trust; Whereas The Muslims shall be enabled to order their lives in the individual and collective spheres in accord with the teachings and requirements of Islam as set out in the Holy Quran and the Sunna;"
Similarly, article 31 of the Constitution of Islamic Republic of Pakistan provides;
31. Islamic way of life.-(1) Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah.
(2) The State shall endeavor, as respects the Muslims of Pakistan,-
(a) to make the teaching of the Holy Quran and Islamiat compulsory, to encourage and facilitate the learning of Arabic language and to secure correct and exact printing and publishing of the Holy Quran;
(b) to promote unity and the observance of the Islamic moral standards; and
(c) to secure the proper organization of Zakat, ushr, auqaf and mosques.
Article 227 of the Constitution of Islamic Republic of Pakistan, 1973 has mandated all state authorities particularly legislative authority (be it primary or subordinate legislative authority) to bring all laws in conformity with the injunctions of Islam, as laid down in Holly Quran and Sunnah.
Said article is reproduced hereunder for ready reference; "227. Provisions relating to the Holy Quran and Sunnah.-(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions.
Explanation.-In the application of this clause to the personal law of any Muslim sect, the expression "Quran and Sunnah" shall mean the Quran and Sunnah as interpreted by that sect.
(2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part.
(3) Nothing in this Part shall affect the personal laws of non-Muslim citizens or their status as citizens."
10. Section 02 of Shariah Application Act, 1962 also provides that in the matter of inheritance of a deceased Muslim, the governing law shall be the Shariah. Hon'ble Supreme Court of Pakistan, while giving its judgment in the case of "Muhammad Saleem Ullah and others V. Additional District Judge, Gujranwala and others" reported as "PLD 2005 SC 511", has also held that law of Shariah being supreme law, was not subordinate to any other law or judgment of any court and any such law or judgment, if found in conflict or not in consonance with the law of Shariah, would not create any bar in the way of making a decision in accordance with principle of Shariah. There thus remains no doubt that if some benefit is found to be "Parka of the deceased, then all the legal heirs of deceased would be entitled thereto, as ordained in Shariah. Petitioners have also examined Mufti Saced ur Rehman (PW-3) who had also produced a Fatwa showing that anything the deceased had been entitled to during his lifetime, (particularly, for which deduction has been made during his life time), same would fall in definition of Tarka and parents of the deceased would be entitled for the same. He was also cross-examined but it could not be established that view of the Mufti was in contradiction to Islamic injunctions in this regard.
11. One of the grounds due to which, learned two courts below have non suited the plaintiff/petitioner was that of bar contained in law of limitation. According to the two courts below, the suit had been barred by law of limitation. While giving said findings, the two courts below have failed to realize that claim of the petitioners in Courts below had been in respect of amount of rent coming from the apartment at Karachi which was a recurring cause. It is a different question that a person even in case of recurring cause, like receipt of rent, would only be able to ask for rent of three years, according to Article 110 of Limitation Act, 1908. To the permissible extent, prayer of the petitioners may be considered. Besides, plea of limitation simpliciter cannot be invoked in cases of inheritance and that also against co-owners, who may claim separation of their shares in the devolved premises any time and seeking of said separation of respective share would also be recurring cause of action.
12. Defendants have not raised objection of jurisdiction at any point of time during the entire litigation, but this court has before it a partial claim of petitioners/plaintiffs in respect of an apartment which was situated outside jurisdiction of the Civil Court, from whose judgment the instant petition is arising. Parties might not have contested jurisdiction of the civil court because contesting defendants No. 3 and 4 have been residing in the jurisdiction of civil Court at Abbottabad. The matter in issue had also been not exclusively related to apartment situated at Gulshan-e-Johar Karachi, but a part of the claim is also raised in respect of part of rent flowing therefrom besides the other monitory benefits received by the defendants No. 3 and 4. Section 16 of Civil Procedure Code, 1908 has provided for regulating territorial jurisdiction. Said Section being relevant, is reproduced hereunder for ready reference; "16. Suits to be instituted where subject-matter situate. Subject to the pecuniary or other limitations prescribed by any law, suits:
(a) for the recovery of immovable property with or without rent or profits;
(b) for the partition of immovable property;
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property;
(d) for the determination of any other right to or interest in immovable property;
(e) for compensation for wrong to immovable property;
(f) for the recovery of movable property actually under distraint or attachment; shall be instituted in the Court within the local limits of whose jurisdiction the property is situate [or, in the case of suits referred to in clause (C), at the place where the cause of action has wholly or partly arisen]: Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate , or, in case of suits referred to in clause (C), at the place where cause of action has wholly or partly arisen] , or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain."
Suit in respect of relief prayed for in respect of immovable property, should no doubt be instituted at the place where subject matter is situated but the proviso has also been carving two exceptions.
Where the suit is brought for obtaining a relief respecting immovable property or compensation for wrong to such property, held by or on behalf of a defendant, it may be instituted in the following courts;- A. The court within local limits of whose jurisdiction the property is situated, B. In case the suit referred to in clause (c) to Section 16, the court where the cause of action is wholly or partly arisen, or C. Court within local limits of whose jurisdiction, the defendant actually or voluntarily resides or personally works for gain, provided the relief may be claimed as a result of personal obedience of the defendant.
13. In other words, if a person seeks some relief in respect of some immovable property, where relief is of such a nature that it may be obtained as a result of personal obedience of defendant, then plaintiff has been given a choice either to institute such suit in the court where the movable property is situated or the Court where defendant actually or voluntarily resides or carries on business or personally works for gain. Defendants No. 3 and 4 have not raised any specific objection to territorial jurisdiction of the Civil Court but they have raised a preliminary objection in para-7 that the court has not been having jurisdiction, without specifying that they have been raising objection regarding territorial jurisdiction of the court. They have not filed any application under Order-VII Rule-10 CPC. Relief prayed in suit in hand, has been in respect of proportionate rent received by defendants No. 3 and 4 who resides within territorial jurisdiction of civil Court at Abbottabad. To said extent, the relief may be obtained from Civil Court at Abbottabad, but if the plaintiff or petitioners desire to separate their share by actual partition or aiming to obtain a similar relief, then plaintiff would have to seek said relief form competent court in whose jurisdiction the immovable property is situated.
14. So far as making of necessary corrections in record of defendants No.1 and 2 is concerned, it is also apparent from reading their written statement, that said defendants have not raised any objection to territorial jurisdiction of the Civil Court at Abbottabad. Even otherwise, they are supposed to deliver monitory benefits of Shuhada at their houses. Defendants, having received all the benefits at Abbottabad, after withdrawing it from National Bank I3alakot Branch, Mansehra.
Same have been withdrawn by defendants No. 3 and 4, who have been living at Abbottabad. The civil Court at Abbottabad could not therefore, be deemed divested of jurisdiction to hear this case.
Even otherwise, objection as to jurisdiction is supposed to be raised at the earliest and when it is not so raised, then it would be deemed to have been waived, according to Section 21 of CPC which reads as;
21. Objections to jurisdiction. No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.
15. In light of what has been discussed above, the instant CR is allowed to the effect that plaint of plaintiffs shall stand partially decreed to the extent of grant of preliminary decree for recovery of rent according to their proportionate share, received by respondents No. 3 and 4 for the period starting from three years prior to institution of suit, till the time the apartment remains joint, at a rate to be determined by the civil Court in the proceedings for grant of final decree. Regarding other reliefs, prayed for in respect of the immovable property, like separation of their share by way of partition or sale, the petitioners would be at liberty to approach competent civil court in whose territorial jurisdiction, the apartment is situated, which may of-course decide the matter in accordance with law. Similarly, petitioners/ plaintiffs are also held entitled to the decree for declaration to the effect that respondents No. 1 and 2 have wrongly excluded them from their due share in inheritance while allotting apartment to widow and daughter of Shaheed Captain Fazal Alam, exclusively. Respondents No. 1 and 2 are therefore, hound to make necessary corrections in their record.