KHALID ISHAQ, J:- This Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (CPC), is directed against the judgment & decree dated 22.02.2020 ("Impugned Judgment") passed by the learned Addl. District Judge, Tehsil Kamoke, District Gujranwala ("Appellate Court"), whereby while partially reversing[1] the judgment dated 30.01.2017 ("Trial Court Judgment") passed by the learned Civil Judge, Gujranwala ("Trial Court"), the suit filed by the Respondents/Plaintiffs was decreed.
2. Brief facts of the case are that one Karam Bakhsh died in India before partition, survived by two sons (Abdul Ghafoor and Majeed) and one daughter (Mst. Ghafooran Bibi). Under the then applicable Customary Law, Karam Bakhsh's Property in Mauza Baras, India had devolved upon his elder son Abdul Ghafoor. It is an admitted position that Abdul Ghafoor died in riots during the migration from India to Pakistan in 1947 and being issueless, he was survived by his widow (Mst.
Sifta), brother Majeed and sister Mst. Ghafooran Bibi. Claim against Abdul Ghafoor's abandoned property in India, was lodged before the Settlement and Rehabilitation Authorities under Pakistan Rehabilitation Ordinance XIX of 1948 (the "Ordinance, 1948"). Mutation of Inheritance viz the land left in India, bearing mutation No. 01 dated 30.10.1952 ("Impugned Mutation") was sanctioned by the Assistant Rehabilitation Commissioner ("ARC"), on the basis whereof suit property situated in Mauza Thatha Gulab Singh Tehsil Kamoke District Gujranwala[2] was mutated in favour of Majeed (3/4 share) and Mst. Sifta (1/4 share). Evidently, Mst. Ghafooran Bibi was not reflected in the Impugned Mutation as one of the legal heirs of Abdul Ghafoor. It is an admitted fact that at the time of sanctioning of the Impugned Mutation, Mst. Ghafooran Bibi was 50-55 years old[3], who remained alive till the year 1988 but she never laid a challenge to the Impugned Mutation during her lifetime. It is pertinent to point out here that Majeed died on 16.02.1985 and the suit property had also been transferred in favour of his offspring through various mutations, during and after his lifetime, which mutations were though impugned as a collateral challenge, as late as in 2009 while filing the Suit but no such challenge was laid after the death of Majeed in 1985.
3. Present litigation commenced on 13.06.2009, when the Respondents of this Civil Revision Petition, claiming themselves as L.Rs of Mst Ghafooran Bibi (who shall hereinafter be referred to as "Respondents/Plaintiffs") filed a suit for declaration before the Trial Court, seeking cancellation of the Impugned Mutation, as well as, subsequent mutations on the basis thereon, along with consequential relief of possession and permanent injunction (the "Suit"). L.Rs of Majeed and Mst.
Sifta (who shall hereinafter be referred to as "Appellants/Defendants") contested the Suit on the following threshold objections: i) Jurisdiction of Civil Court was barred under Section 25 of Displaced Persons (Amendment) Act, 1958, read with Section 41 of the Pakistan Administration of Evacuee Property, Act 1957; ii) Mutation No.1 was passed by ARC on 30.10.1952, while exercising jurisdiction under the settlement laws, which was never challenged by Ghafooran Bibi in her lifetime, therefore, Suit is badly time barred by 56 years and 08 months; iii) Plaintiffs have no w to file the present suit and no cause of action exist in their favour.
4. Issues were framed on the basis of divergent pleadings of the parties, pro & contra evidence was led and at culmination of the proceedings, the Suit was dismissed by the Trial Court, vide judgment & decree dated 10.11.2013 for want of jurisdiction. Said judgment & decree was assailed by way of RFA No. 133 of 2013 before this Court, which was allowed vide judgment dated 12.11.2015 on the premise that since complete evidence was recorded in the Suit, therefore, in terms of Order XX Rule 5 of CPC, Trial Court was required to state its findings or decision with reasons thereof upon each separate issue and all the distinct issues had to be answered. It was held that: "Even otherwise, the findings of the learned Trial Court in respect of issue No.4 are required to be re-recorded by the learned Trial Court after considering the provisions of the Evacuee Property and Displaced Persons Law (Repeal) Act, 1975 through which the Displaced Persons (Land Settlement) Act, 1958 and the Pakistan (Administration of Evacuee Property) Act, stood repealed. Thus, the appropriate course is to remand the case to the learned Trial Court for recording fresh findings on all the issues and particularly on issue No.4 after appreciating the provisions of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975."[4]
5. In post remand proceedings, the Suit was once again dismissed by the Trial Court vide Trial Court Judgment, declaring that the Suit filed by the Respondents/Plaintiffs is barred by limitation.
Trial Court Judgment was assailed by the Respondents/Plaintiffs through an appeal filed under section 96 of the CPC before the first Appellate Court. The Appellants/Defendants also filed Cross- Objections viz the findings of Trial Court qua question of bar of jurisdiction. The appeal was allowed and Cross-Objections were dismissed vide Impugned Judgment and consequently, the Suit was decreed. Hence this appeal.
6. I have the heard learned counsels for the parties at length, on the basis of their respective submissions, able assistance and available evidence/ record, the questions of law, which require determination in this Regular Second Appeal, may be summed up as under: I) Whether the suit property had devolved upon Majeed and Mst. Sifta under the Customary Law as the West Punjab Muslim Personal Law, Shariat Application Act IX of 1948 ("Shariat Act") was not applicable since Abdul Ghafoor had died in 1947, prior to the promulgation of the Shariat Act, thus, Mst. Ghafooran Bibi was rightly excluded from inheritance as a legal heir of Abdul Ghafoor?
II) Whether the jurisdiction of Civil Court was barred under Section 25 of the Displaced Persons (Land Settlement) Act (XLVII of 1958) ("Settlement Act") read with Rehabilitation Settlement Scheme, Part II paras 46 & 67, as the Impugned Mutation was sanctioned by ARC while exercising jurisdiction under Settlement Laws, therefore, the remedy of Respondents/Plaintiffs, if any, was available under the Settlement Laws?
III) Whether the Suit filed by the Respondents/Plaintiffs was barred by limitation despite the fact that claim in the suit was couched as an inheritance claim, lodged after the death of Mst.
Ghafooran Bibi by her legal heirs?
The above questions are answered by this Court, in the following terms: I) Whether the suit property had devolved upon Majeed and Mst. Sifta under the Customary Law as the West Punjab Muslim Personal Law, Shariat Application Act IX of 1948 ("Shariat Act") was not applicable since Abdul Ghafoor had died in 1947, prior to the promulgation of the Shariat Act, thus, Mst. Ghafooran Bibi was rightly excluded from inheritance as a legal heir of Abdul Ghafoor?
7. The issue, as to the applicability of the Shariat Act regarding the devolution of inheritance upon the legal heirs of a person, who died before the promulgation of the Shariat Act but the incorporation/sanction of mutation for such purpose was pending till 15th March, 1948[5], has already been settled by a Larger Bench of the Supreme Court of Pakistan through a landmark judgment in "Ghulam Haider and others"[6], the relevant observations whereof are reproduced hereunder: "In view of the conclusions arrived at by us above the entire land acquired by Murad through Mutation No. 4536 attested on 29-10-1944 under the customary law of inheritance was to be deemed to have been acquired by him under the Muslim Personal Law (Shariat) and, thus, Mst.
Bano's suit filed against that acquisition had to fail and the learned Judge-in-Chamber of the Lahore High Court, Multan Bench, Multan was quite justified in holding so. However, as regards Murad's suit filed against Mutation No. 5631 attested on 28-2-1959 in favour of Mst. Sehati and Mst.
Bano the said suit should also have failed because the land subject matter of that mutation had never been formally "acquired" by Murad before March 15, 1948. Section 2-A introduced through Ordinance XIII of 1983 was applicable only to those acquisitions of agricultural land which acquisitions had come about prior to March 15, 1948 and in the case of the land subject matter of Mutation No.5631 there was no formal acquisition of that land by Murad till attestation of that mutation on 28-2-1959 and, thus, after March 15, 1948 the said land could have devolved upon the heirs of Lal deceased only under the Islamic law of inheritance and not under the customary law of inheritance which by then had become extinct. In this view of the matter the suit filed by Murad challenging Mutation No.5631 attested on 28-2-1959 was liable to be dismissed."
[Emphasis Supplied] Juxtaposing the facts of the case in hand with the ratio in Ghulam Haider and others supra would lead to the conclusion that since the Impugned Mutation in this case was sanctioned subsequent to the promulgation of the Shariat Act and rights of inheritance were 'formally acquired' by Majeed and Mst. Sifta, subsequent to March 15, 1948, therefore, inheritance had to be governed under the Shariat Act and not under the Custom or Usage existing prior thereto. There is another important aspect of the case, which has also rightly been noted by the Trial Court, that if it was an inheritance under the customary law, whereby females were deprived of inheritance, there was no question of devolving of land upon Mst. Sifta (widow of Abdul Ghafoor). Thus, the findings of the Trial Court and first Appellate Court are correct and are accordingly upheld to this extent. This brings me to the next moot point in this case i.e. Question No. II.
II) Whether the jurisdiction of Civil Court was barred under Section 25 of the Displaced Persons (Land Settlement) Act (XLVII of 1958) ("Settlement Act") read with Rehabilitation Settlement Scheme, Part II paras 46 & 67, as the Impugned Mutation was sanctioned by ARC while exercising jurisdiction under the Settlement Laws and the remedy of the Respondents/Plaintiffs, if any, was available under the Settlement Laws?
8. This question has also been authoritatively settled by the Supreme Court of Pakistan to the effect that jurisdiction of the Civil Court is barred viz the matters arising out of the claims under settlement laws, however, this settled position of law escaped the attention of both the Courts below and thus, the findings in this respect are not sustainable. As per the law settled by the Supreme Court of Pakistan, the Respondents/Plaintiffs had to exhaust the remedies available to them, if any, before the Settlement Authorities under the dispensation of Settlement Laws. Reliance may be placed upon following judgments of the Supreme Court of Pakistan; relevant paragraphs whereof are reproduced herein below: The Judgment in "Ahmad Din" case[7], which is applicable to the case in hand on all fours, holds: "Learned counsel appearing in support of this appeal has contended that the jurisdiction of the civil Courts to entertain a suit of this kind had not been taken away either by section 13 or section 18 of the Pakistan Rehabilitation Act, 1956 or by section 25 of the Land Settlement Act, 1958, for, no question relating to the evacuee nature of the property fell to be decided in this case. All that was sought was a declaration that the appellant was the sole heir of Allah Bakhsh with a consequential relief of an injunction for restraining the respondents from interfering with his possession. This contention is, however, now not tenable in view of the decision of this Court in the case of Mst. Zainab v. Mst. Raji[8] where it has been pointed out that the "Rehabilitation Authorities possess the necessary powers to hold enquiries into claims made by refugees and to decide all questions of inheritance, in accordance with the instructions issued by the Rehabilitation Commissioner (Lands) under Resettlement Scheme Punjab". the Rehabilitation Reference was also made by this Court in this connection to the instructions contained in paras. 46 and 46 A of the Rehabilitation Manual to show that since the question of inheritance to right-holders, as Allah Bakhsh was in the present case, was also to be decided by the Rehabilitation Authorities, the matter was in their exclusive jurisdiction and, as such, a similar question could not be allowed to be agitated in the civil Courts. In that case too, Mst. Zainab had filed a suit for a declaration that she was the sole heir of her deceased brother, who had died on the way to Pakistan and that, as such, she alone was entitled to receive whatever compensation was being paid or may be paid in Pakistan in respect of the holding of a deceased brother in India. There too a permanent injunction had been asked for, as in the case before us, for restraining the defendants therein from interfering with her rights. The suit was held to be barred under the provisions of sections 13 and 18 of Pakistan Rehabilitation Act of 1956. To the same effect is the decision of a Full Bench of the West Pakistan High Court in the case of Umar Daraz Ali v. Khurshid Ali.[9] There too it was held that the mutations sanctioned by the Rehabilitation or Revenue Authorities under paras. 46 and 46-A of the Rehabilitation and Re-settlement Scheme Punjab, which is simply a measure for the re- settlement of refugees in Pakistan, do not pertain to inheritance to the estates of deceased right- holders. This is in our view correct, we see no reason, therefore, to differ with the decision of the High Court that such a suit was not maintainable in the civil Courts. We are also in agreement with the High Court that the suit was barred by limitation. The appellant could not take advantage of the fact that he had filed a time-barred appeal from the mutation proceedings, for extending the period of limitation."
[Emphasis Supplied] Although, the reference to "Mst. Zainab's",[10] case has been made in the above quoted paras of Ahmad Din supra, however, since the judgment in Mst. Zainab's case has also extensively dealt with the issue of jurisdictional aspect of such like matters, therefore, for the purpose of completeness, some squarely relevant observations from Mst. Zainab's dicta, are reproduced hereunder with great advantage: "The Rehabilitation Resettlement Scheme, Punjab, under which allotments on a permanent or semi-permanent basis, of evacuee lands in this area, are being made by the Rehabilitation authorities, was framed by the Rehabilitation Commissioner, Punjab, by virtue of powers derived from section 7 (I) of the Pakistan Rehabilitation Ordinance XIX of 1948, as amended by the Pakistan Economic Rehabilitation (Amendment) Ordinance XVI of 1949. In Act XLII of 1956, the corresponding provision which authorises the framing of such a Scheme is section 6. This is an exhaustive Scheme, covering pages 385 to 464 of the Evacuee and Rehabilitation Laws Manual, 1957. The Correction Slips, issued in respect of this Scheme, are printed at pages 480 to 506 of this Manual.
This Scheme read with the parent legislation, provides a complete Code for allotment of evacuee lands to refugees or other persons and contains elaborate provisions for dealing with the claims made by refugees in respect of lands abandoned in India. Section 4 (2) of Act VII of 1956 declares that every order purporting to be made, or signed by the Rehabilitation authority, in lawful exercise of any power conferred by or under the Act, shall be presumed to have been so made by such an authority and no such order shall be called in question in any Court. Section 11 of the Act comprises of self-contained provisions in respect of appeals from orders of Rehabilitation officers to higher officers in the Department. Section 12 of the Act contains provisions for revision of certain orders by Government. Section 13 lays down that an order passed by the Rehabilitation Commissioner or Additional Deputy or Assistant Rehabilitation Commissioner shall be final, subject to the provisions of sections 11 and 12 and shall not be called in question in any judicial proceedings in any Court. Section 17 bars suits, prosecutions and other legal proceedings against the Central Government or any Rehabilitation authority or any person acting under the direction of that Government or authority, for anything which, in good faith, is done, purports or is intended to be done in pursuance of the Act. Section 18 expressly enacts that the jurisdiction of Civil Courts to question an order passed by a Rehabilitation authority under the Act, is barred and subsection
(3) thereof declares that no such Civil Court shall be competent to adjudicate on the rights of or dispossess a person to whom any immovable property has been allotted or leased, by a Rehabilitation authority or by a Custodian or to issue an injunction or other order, in relation to any act done, or intended to be done, by a Rehabilitation authority, under the provisions of the Act.
These provisions are of very wide import and it appears to us that, by necessary intendment, these provisions bar the jurisdiction of Civil Courts to entertain a declaratory suit of the kind under consideration. A declaratory decree, even if passed in such a suit, can be ignored by the Rehabilitation authorities and any order passed by such authorities contrary to a declaratory decree of this kind, would be immune from attack in a judicial proceeding. The Rehabilitation authorities possess the necessary powers to hold enquiries into claims made by refugees and to decide all questions of inheritance, in accordance with the instructions issued by the Rehabilitation Commissioner (Lands) under the Rehabilitation Resettlement Scheme Punjab.
Reference in this connection may be made to instructions 46 and 46-A at pp. 408 and 409 of the Rehabilitation Manual. It would amount to encroachment on that special and exclusive jurisdiction, vested in the Rehabilitation authorities, if similar question were allowed to be agitated in the Civil, Courts. The object of the Rehabilitation laws being to settle the refugees on lands and give them certain rights, in as expeditious a manner as possible, such an exclusion of the ordinary Courts' jurisdiction is easily understandable. We are, therefore, unable to agree with the opinion of the learned Judge, who decided Heman v. Fazal that a declaratory decree in such a suit could affect any property in Pakistan. It would amount to no more than a pious resolution and would be a mere essay in futility. Assuming therefore, though not conceding the view taken by the learned Judge in Heman v. Fazal that section 16 of the Civil Procedure Code has no relevancy to the case and that section 20, Civil Procedure Code, might have enabled a Pakistan Court, prima facie to entertain a suit relating to title in lands in India in the absence of a legal bar, since no effective decree can at all be passed by Civil Court and the provisions of the Rehabilitation laws, by necessary intendment, exclude such jurisdiction; the Civil Courts' jurisdiction to entertain declaratory suits of the kind under consideration, must be held to be barred. We, therefore, find no force in the appeal and hereby dismiss it with costs."
[Emphasis Supplied] Likewise, the case of "Mst. Zainab Bibi and others",[11] not only deals with the question of jurisdiction but also enunciates the important question of limitation in such like cases, therefore, the relevant observations by the Apex Court are reproduced as under: "Learned Judge of the High Court came to the conclusion that the petitioners did not plead in the plaint that the land in dispute was allotted in lieu of any land left by Jan Muhammad in India.
Apart from this, we have also noticed that Mutation. No.18 attested on 20-5-1953 in respect of the claim holder under the Rehabilitation laws against which appeal filed by the petitioners was accepted by the Collector through order, dated 16-2-1971 against which revision filed by the respondents was accepted by the Rehabilitation Commissioner on 30-6-1971. In appeal, filed by the petitioners before the Assistant Commissioner/ Collector, it was stated that she came to know about the alleged fraud in the year 1970, but after decision by the Rehabilitation Commissioner on 30-6-1971, the petitioners kept quite up to 20-10-1977 when they filed the present suit. Under Article 95 of the Limitation Act, 1908, period of limitation for a suit on the ground of fraud is 3 years from the date of acquisition of knowledge of fraud, therefore, it was rightly held to be barred by time. Orders of the Rehabilitation Authorities under the Rehabilitation laws were immune from challenge before the Civil Court. The petitioners should have sought - remedy against the order, dated 30-6 1971 at the appropriate time before the higher forum, for, at the relevant time the said order could be challenged before the High Court in second revision under settlement laws. It has been rightly held that it was not mentioned in the plaint that the land in dispute was allotted against the claim of the land which was in the name of Jan Muhammad at the time of partition."
[Emphasis Supplied] In the case of "Faizuddin Ahmad",[12] Supreme Court of Pakistan has held: "5. Respondent No.1 filed a civil suit to challenge the legality of the order dated 29-1-1974 of the Additional Settlement Commissioner. The suit was resisted by the appellant. The trial Court framed as many as six issues on the pleadings of the parties. One of the issues related to the competency of the Civil Court to entertain the suit of respondent No.1. The learned trial Court held that the Civil Courts had no jurisdiction to entertain the suit. It then did not record any finding on the other issues and rejected the plaint under rule 11 of Order VII, Civil Procedure Code. Its order was affirmed by the Additional District Judge, Sheikhupura in first appeal. Respondent No.1 then filed a second appeal in the High Court.
6. A learned Single Judge in the High Court re-examined the legal position and came to the conclusion that the jurisdiction of the Civil Courts to entertain the suit of respondent No.1 was not barred. He described the finding of the Additional Settlement Commissioner that the transfer obtained by respondent No.1 was tainted with fraud, as superficial, sketchy and inconclusive. After holding that the Civil Courts had the jurisdiction to try the suit the learned Single Judge, instead of remanding the suit back to the trial Court for decision or other issues, himself disposed of the case with the observation: "Firstly, the main question involved is a question of law but even a question of fact could be determined by this Court under section 103, C.P.C. It is to be noted that the Civil Court got the entire evidence and exhibited all the documents being relied upon by the parties. The question involved is only and question of law In the circumstances, it is not necessary to send this case back."
The learned Single Judge then held that the order of the Additional Settlement Commissioner dated 29-1-1974 was without jurisdiction and void. Accordingly, he set aside the judgments and orders of the Courts below and granted the declaration sought by respondent No.l.
7. Leave to appeal was granted in this case for examination of the following two questions:-
(i) Whether the Civil Court had jurisdiction to try the subject-matter of the suit in question, which related to the transfer of the property under Lands Settlement Law; and
(ii) Whether in case the Civil Court has jurisdiction. the High Court should have, instead of remanding the case for proper trial and decision by the learned trial Court (the plaint was rejected in this case under Order 7, Rule 11), decided it itself, decreeing the suit in favour of the respondent.
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11. Section 25 of the Displaced Persons (Land Settlement) Act ousted the jurisdiction of the Civil Courts in respect of matters which the Central Government or any Officer appointed under the Act was empowered by or under the Act to determine. As the order of the Additional Settlement Commissioner, exercising the powers of the Chief Settlement Commissioner, fell well within his competence the provisions of section 25 were attracted in this case; and as such the Civil Courts had no jurisdiction to interfere with it. The learned Single Judge was, therefore, not right in holding that the Civil Courts had the jurisdiction to entertain the suit of respondent No.l. This being the position, it is not necessary to record any finding on the second question formulated in the leave granting order."
In "Muhammad Saleem and others"[13], a three-member Hon'ble Bench of the Apex Court, while approving the earlier judgments in Ahmad Din & Mst. Zainab supra, has held: "2. The dispute relates to the inheritance of Mst. Tabbi, deceased, who was owner of land in village Taj Pura Tehsif Boolath Riyasat Kapoorthalla, India. She died during the disturbance of 1947 and according to the learned counsel for the appellants, the claim regarding the said land was filed by the predecessor-in-interest of the appellants which was duly verified against which land in dispute was allotted in the name of Mst. Tabbi deceased. A mutation of her inheritance was attested in favour of Umar Din, deceased plaintiff alone on 5-5-1964 by the Revenue Officer under the General Revenue Laws. 'The respondents and their predecessor-in-interest challenged this order by filing appeal in which the case was remanded and Mutation No. 1156 was attested against plaintiff Umar Din who assailed the said order which was set aside through order, dated 17 4-1968. The High Court through judgment, dated 20-10 1973 set aside all these proceedings and it was directed that fresh mutation should be sanctioned by the Rehabilitation Settlement Authorities under the Settlement laws. The matter was taken up by the Deputy Rehabilitation Commissioner, Sheikhupura who on 1-7-1987 sanctioned a mutation in favour of the respondents while plaintiff Umar Din was excluded. It was held that plaintiff Umar Din was not heir of Mst. Tabbi.
This order was challenged before the Additional Commissioner Revenue in appeal which was dismissed on 26-9-1988. Revision petition filed by the plaintiff before the Board of Revenue was dismissed through order, dated 4-6-1989 on the ground that the same was not maintainable/competent.
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11. It was a case decided by the Rehabilitation and Settlement Authorities under the Rehabilitation and Settlement scheme framed under the Rehabilitation and Settlement Laws about the inheritance of a deceased right holder, therefore, was governed by these laws. According to section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the jurisdiction of the Civil Court of general jurisdiction was barred to question the validity or otherwise of the orders passed by the Rehabilitation and Settlement Authorities in such matters. It has been held in the case of Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762 that the question of inheritance of deceased right holder was required to be decided under the relevant paragraphs of settlement scheme as such, was a matter within the exclusive jurisdiction of the Settlement Authorities and jurisdiction of the Civil Court in such matters was barred."
[Emphasis Supplied]
9. In another authoritative judgment, while discussing the effect of Evacuee Property and Displace Person Laws (Repeal) Act, 1975 through which the Displaced Persons (Land Settlement) Act, 1958 and the Pakistan (Administration of Evacuee Property) Act stood repealed, the Supreme Court of Pakistan has settled the issue that irrespective of the repeal, the bar against the exercise of jurisdiction by the Civil Court, as supplied in the repealed laws, shall continue. It was held in "Nazeer Ahmad and others",[14] that: "In the light of the foregoing, the claim of the appellants in the suit substantially was to call in question the subsequent order of the Custodian which did relate to the disputed property but was protected from challenge in the civil Court under the existing law by virtue of section 41 of the Act of 1957 and as stated above, the repeal of the said Act did not have the effect of removing the bar contained in the repealed provision which was preserved by section 6 of the General Clauses Act so far as the orders passed during the operation of the repealed law. The argument that with the repeal of the Act of 1957, the bar contained in section 41 on the jurisdiction of the civil Court was also wiped off is untenable..."
[Emphasis Supplied]
10. It is also well settled that where a special remedy is provided under the special law, same may not be by-passed and Civil Court cannot be approached directly without exhausting highest forum in the hierarchy under the special law.[15]
11. Having settled that the jurisdiction of the Civil Courts was barred, the need to determine the rest of the question may not be necessary in the normal parlance, however, in order to end this controversy and save the parties from agony of pursuits for settling the question of limitation, it is not only appropriate, rather deemed necessary to decide the question of limitation as the precise issue was framed and parties have led their respective evidence.
III) Whether the Suit filed by the Respondents/Plaintiffs was barred by limitation despite the fact that claim in the suit was couched as an inheritance claim, lodged after the death of Mst.
Ghafooran Bibi by her legal heirs?
12. It is an admitted fact that the Impugned Mutation was sanctioned in 1952, Mst. Ghafooran Bibi, who was 50-55 years old at the relevant time and remained alive till 1988[16], she herself, as well as her legal heirs, were aware of the Impugned Mutation but neither she impugned the same within her lifetime nor her legal heirs brought any challenge within the prescribed period of limitation from the date of her death. Some initial burden had to be discharged while lodging a claim as inheritance claim to the effect that the same is not hit by waiver and acquiescence.
Although it is mentioned in the plaint that Majeed etc./Appellants kept making minimal payment of income proceeds as Ghafooran Bibi's share from the suit property, however, it is fall to be noted that although pleadings are not evidence but, in this case, even the plaint in issue is not filed, signed and verified on oath by Mst. Ghafooran Bibi in terms of Order VI Rule 14 & 15 of CPC as she never laid any challenge within her lifetime. Only one of her predecessors took the witness stand i.e. PW-3 (Muhammad Shabbir Khan) who too failed to depose of having any circumstantial or a bleak indirect evidence viz the alleged fact that the payments were being made to Mst. Ghafooran Bibi in her lifetime, and to her successors after her death, which payments, when allegedly denied or stopped, had alerted the Respondents/Plaintiffs and triggered the cause of action. This witness frankly admitted that he is deposing on the basis of hearsay - . He has unequivocally admitted more than once in his testimony that Mst. Ghafooran Bibi was aware of the Impugned Mutation and have had informed him in the year 1952. Relevant part of his statement is reproduced hereunder: It is true that in case of a challenge to an inheritance mutation or transaction, which purports to deprive the claimants of his/her inheritance right, the beneficiary has to prove the transaction but some initial burden has to be discharged by the claimant. In this case Mst. Ghafooran Bibi remained alive for about 36 years after the Impugned Mutation but she never came forward to challenge the same, despite the fact that she was aware of it (as admitted by PW-3). If it may be assumed that she being a female was unable to ascertain the knowledge about the Impugned Mutation, some challenge had to be brought by her successors after her death in 1988, when Mst.
Ghafooran Bibi's inheritance was opened but it took almost 21 years to her successors i.e. the Respondents/Plaintiffs to file the Suit, the limitation whereof had come to pass since long in terms of Section 18[17] read with Article 95 and 120[18] of the Limitation Act, 1908. The other witnesses produced by the Respondents/Plaintiffs are not even the Legal Heirs of Mst. Ghafooran Bibi, they are residents of areas which are poles apart from the village of Ghafooran Bibi and Abdul Ghafoor, here, in Pakistan, as well as, in India. PW-1 was of 7/8 years of age when Abdul Ghafoor died in 1947, he deposed that he lastly met Mst. Ghafooran Bibi in 1964/65, he is not privy to any purported payments being allegedly made as share of the land to Mst. Ghafooran Bibi. Similarly, PW-4 was of 4/5 years of age at the time of death of Abdul Ghafoor and 11/12 years at the time of Impugned Mutation.
13. The Supreme Court of Pakistan has repeatedly considered and authoritatively settled that the question of limitation cannot be brushed aside in all cases brought on the basis of claims of inheritance and the questions of waiver and acquiescence are material questions of law and facts, which need to be addressed in respective cases according to their peculiar facts. The following judgments have enunciated the law on the subject in the most unequivocal terms.
Muhammad Rustam's case[19] relates to plea of inheritance agitated by a successor through predecessor, whose predecessor never agitated his right of inheritance during his lifetime. The Supreme Court of Pakistan has held: "11. Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioner, therefore, had no locus standi to challenge the mutation independently, for Atta Muhammad through whom the claimed inheritance himself had not challenged the same during his lifetime."
Similarly, while dealing with the often-argued ground that the limitation does not come in the way of claims based on inheritance, the Supreme Court of Pakistan in Mst. Grana[20] case had considered the landmark judgment on the subject in Ghulam Ali's case[21], and enunciated the law in the following clear terms: "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 13.05.1970, where the plaintiff had challenged inheritance mutation of 13.02.1947; 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 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 act, 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."
[Emphasis Supplied] Likewise, in the case of Atta Muhammad[22], it is held: "8. The findings of the learned two Courts is that the plaintiffs were out of possession and they have not been able to establish receipt of rent and profits from the land, although the appellant claimed to the contrary. This was the second misrepresentation which disentitled the plaintiffs to any relief in equitable jurisdiction. The learned two Courts held that the suit was barred by time but the learned High Court, by making a sweeping statement, that there is no limitation in the cases of inheritance has, in fact, rewritten the law of limitation. It was not a case of inheritance between the co-sharers because the plaintiff's case was that the appellant was a stranger. As the mutation of inheritance of the estate of Mst. Khairan in 1942 is concerned, there was absolutely no justification, factual or legal, to overlook the delay of 46 years in filing the suit. This delay of 46 years adversely reflected on the bona fides of the claim of the respondents. The learned High Court observed that on account of river action the land suffered erosion but was reclaimed 10/12 years preceding 1988 could hardly be accepted in view of the absence of the pleadings. What happened in 1942 when the mutation was attested could hardly be properly and justly inquired into after 46 years."
[Emphasis Supplied]
14. The above judgments have consistently been approved and followed by the Supreme Court of Pakistan. In Salamat Ali's case[23], the true import and exceptions of Section 18 of the Limitation Act, 1908, read with Order VI Rule 4 C.P.C has authoritatively been settled in the following terms: "20. We find that all the three courts have failed to notice the exception provided in section 18 of the Limitation Act 1908 ("Limitation Act"), according to which the benefit of postponing the commencement of the period of limitation provided to an injuriously affected person is not applicable against a bona fide purchaser. The section reads:--
18. Effect of fraud. Where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application--
(a) against the person guilty of the fraud or accessory thereto, or
(b) against any person claiming through him otherwise than in good faith and for a valuable consideration, shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production.
(Emphasis added)
Before we consider and explain the exception provided in the above provision, it would be pertinent to understand the true purport of the general rule encompassed in the section. In essence, this provision is a safeguard against fraud committed to conceal from a person his right to sue. It postpones the commencement of the period of limitation to the date when the fraud first became known to the "person injuriously affected". Such injuriously affected person can, therefore, institute a suit within the limitation period specified for such suit in the First Schedule ("Schedule") to the Limitation Act, but computing it from the date when he first had knowledge of the fraud, whereby he was kept from knowledge of his right to institute the suit.
21. We, however, must appreciate that the "fraud" envisaged in this provision of the law only relates to concealing, not creating, the right to sue and thus, affects only the limitation period and has nothing to do with the cause of action and the relief prayed. It is also needless to mention that, a plaintiff who wants to avail the benefit of section 18 of the Limitation Act, must assert the commission of such fraud by the defendant in the plaint, and should also give the particulars thereof, and the date of knowledge as required under Rule 4 of Order VI of the C.P.C., and then prove the same through positive evidence.
[Emphasis Supplied]
15. For the cases, where the element of acquiescence and waiver is depicted from the facts of the case, though the claim was based on inheritance, the argument of brushing aside the limitation on the basis of inheritance claim was not entertained, the reliance may be placed on Syed Kausar Ali Shah's[24] case, the relevant paragraph whereof is reproduced herein below: "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 heir sits 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."
[Emphasis Supplied]
16. Similarly, in the case of "Mst. Faheeman Begum (Deceased) through L.Rs and others v Islam- Ud-Din (Deceased) through L.Rs and others" (2023 SCMR 1402), lack of challenge by the donor within her lifetime was declared fatal by the Supreme Court and bar of limitation was accordingly applied. The principle is also followed in plethora of other judgments, whereby it is held that any heir, who was directly affected by wrongful record of mutation of inheritance, failed to challenge such mutation for a considerable length of time until his death, deprives his own heirs of the locus standi to dispute such mutation on the ground of estoppel, abandonment of claim/cause of action.[25] Needless to add that whatever rights are being claimed by the Respondents/Plaintiffs, are exclusively and only being claimed in their capacity as LRs of Mst. Ghafooran Bibi thus, any/all rights of said Ghafooran Bibi, if extinguished or had become barred by time within her lifetime, will operate as such against her LRs.
17. In various claims of inheritance brought by female legal heirs against their brothers/male heirs, the Supreme Court of Pakistan has authoritatively held that the question of limitation cannot be ignored in every such case and question of limitation is dependent upon the facts and circumstances of each case. In Saadat Khan's case[26], it was held: "9. We may say at the very outset that in view of the provisions of the residuary Article 120 of Schedule-I to the Limitation Act 1908, there can hardly be any suit to which the bar of limitation does not apply. As per the said Article a suit for which no period of limitation is provided elsewhere in the Schedule, the period of limitation for that suit is six years from the time when the right to sue accrues. No specific Article of Schedule-I to the Limitation Act provides a period of limitation for a suit instituted by a person, under Section 42 of the Specific Relief Act 1877, for declaration of his ownership rights to any property against a person denying his said rights; therefore, the residuary Article 120 applies to such suit. A suit instituted by a female legal heir for declaration of her ownership rights as to the property left by her deceased father in his inheritance, against her brother who denies her rights is thus governed by the provisions of Article 120. To decide whether such a suit is barred by limitation, the six-year period of limitation provided by Article 120 is to be counted from the time when the right to sue for declaration accrues as provided therein. The question, when the right to sue for declaration has accrued in a case, depends upon the facts and circumstances of that case, as it accrues when the defendant denies (actually) or is interested to deny (threatens) the rights of the plaintiff as per Section 42 of the Specific Relief Act, 1877. The actual denial of rights gives rise to a compulsory cause of action and obligates the plaintiff to institute the suit for declaration of his rights, if he wants to do so, within the prescribed period of limitation; while in case of a threatened denial of rights, it is the option of the plaintiff to institute such a suit on a particular threat. On the actual denial of rights, the cause of action and the consequent right to sue matures for instituting the suit for declaration; whereas every threatened denial of rights gives rise to a fresh cause of action, and thus a fresh right to sue accrues on such a denial. This Court has, therefore, decided the question of limitation in the cases relied upon by the High Court and referred to by the counsel for the petitioners, in the peculiar facts and circumstances of each case."
[Emphasis Supplied]
18. It is well settled by now that limitation is not a mere technicality and instead limitation is a statute of repose, designed to quieten title and to bar stale and water-logged disputes, it is to be strictly complied; the Statutes of limitation by their very nature are strict and inflexible. There is no scope in limitation law for any equitable or ethical construction to get over them; justice, equity and good conscience do not override the law of limitation. The hurdles of limitation cannot be crossed under the guise of any hardships or imagined inherent discretionary jurisdiction of the court; ignorance, negligence, mistake or hardship does not save limitation, nor does poverty of the parties. It can be rightly stated that the plea of limitation cannot be deemed as an unjust or discreditable defence; there is nothing morally wrong and there is no disparagement to the party pleading it. It is not a mere technical plea as it is based on sound public policy and no one should be deprived of the right he has gained by the law; it is indeed often a righteous defence.[27]
19. The above makes it abundantly clear that neither the question of limitation may be ignored in every claim based on purported rights of inheritance nor it is permissible for the litigants to lay a statute barred challenge by couching the relief in the form of an inheritance claim. Indeed, there are few judgments by the Supreme Court of Pakistan, the first blush wherefrom may lead to an inference otherwise, however, appreciating the facts of all such cases in true perspective will predominantly lead to the conclusion that all such cases fall in the exceptions formulated above.
For instance, In Shabla's case[28], it was held by the Supreme Court of Pakistan that in a case where a female is deprived of her share in the immoveable property of her predecessor, limitation will not be a question against her claim of inheritance. A perusal of the facts of the case would reveal that the female claimant had laid the challenge in her lifetime and successfully pleaded all the ingredients of fraud being played upon her while sanctioning the inheritance mutation by excluding her from inheritance; she was a minor at the time when the impugned mutation was sanctioned; she proved that she was consistently paid the share from the income of the immoveable property; she claimed her right in her lifetime; the mutation through which her right was infringed was not brought about as required under Section 42 of the Land Revenue Act, 1967.
Similarly, in the case of Mst. Fatima[29], the Supreme Court of Pakistan, while relying upon Shibla's case has held that the limitation will not be an obstacle in the case of inheritance as in this case too, the fact of claimant lady being deprived from the inherited property by way of impugned mutation was concealed from her, however, she pleaded and proved that she was being paid her share of income from the property and once the same was denied, she brought the suit within her lifetime. Similar are the facts of the case of Noor Din[30]. Likewise, the case of Mst. Khatoon Bibi supra, the Supreme Court has not held that no limitation runs against all kind of claims based on inheritance nor the applicability of Article 120 of the Limitation Act, 1908 has been excluded per se in the claims based on inheritance. The cited precedents just holds that if a person feels himself aggrieved of entries in the revenue record, on the basis of an inheritance mutation, he can file a suit for declaration within six years of such wrong entries or knowledge; the scope and exception has also been confined to the claims against co-sharer. It is worth noting that Mst. Khatoon Bibi's judgment also duly recognizes the questions of waiver, acquiescence and estoppel.
20. The above judgments authoritatively settle the law on the subject that a claim of inheritance must cross the bridge of limitation, waiver and acquiescence. An unchecked tendency of encouraging a relief in the guise of inheritance is not warranted under the law. The encouragement of such claims and long drawn trials in statute barred suits is counterproductive for genuine and bona fide claims of female heirs. In the case in hand, predecessor in interest of the Respondents/Plaintiffs (Mst. Ghafooran Bibi) never voiced any grievance against the Impugned Mutation; even on her demise in 1988, her legal heirs (Respondents/Plaintiffs), kept a mum for almost 21 years and suddenly woke up from their slumber and filed the Suit in 2009, which is not permissible under the law.
21. The only ineluctable conclusion which flows from the above is that first Appellate Court has erred in law while returning the findings on the question of limitation as well as on the issue of bar of jurisdiction of the Civil Court. It is by now well settled that findings of the lower Appellate Court are immune from interference in the second appeal only if the same are found substantiated by evidence on the record and are supported by reasoning rooted in law, however, if findings of the first Appellate Court are not supported by the evidence on record and failed to have logical basis for reversing the findings of the Trial Court or found to be arbitrary or capricious, it will be interfered in the second appeal.[31] In the instant case the Impugned Judgment handed down by the Appellate Court is result of misreading and non-reading; the same is contrary to law and failed to determine the material issues of law as per the evidence and available record. The Appellate Court has erred in law and facts, therefore, instant is a fit case for interference while exercising jurisdiction under section 100 of Code of Civil Procedure, 1908[32].
22. The upshot of the above discussion is that question Nos. I, II & III are answered in the terms: (I) that Shariat Act was to be applied at the time of sanction of Impugned Mutation No. 01 of 1952; (II)
Jurisdiction of Civil Court was barred for the purpose of the Suit filed by the Respondents/Plaintiffs; and, (III) the Suit was even otherwise statute barred, in terms of Articles 95 and 120 of First Schedule, read with Section 18 of the Limitation Act, 1908.
23. As a sequel of above discussion, this Regular Second Appeal is allowed and the Impugned Judgment passed by the Appellate Court is set aside. Resultantly, the Suit filed by the Respondents/Plaintiffs is hereby dismissed with no order as to costs.
1. Trial Court though dismissed the Suit, however, had held that the jurisdiction of the Civil Court was not barred for determination of the Suit. The Appellants had filed Cross-Objections before the First Appellate Court, which too have been dismissed vide the Impugned Judgment.
2. More fully described in para No.1 of the plaint.
3. See testimony of Rana Shabbir Khan (PW-3), LR of Mst. Ghafooran Bibi.
4. See Page-3 of the RFA judgment dated 12.11.2015.
5. The date of promulgation of the Shariat Act, 1948
6. "Ghulam Haider and others v. Murad through Legal Representatives and others" (PLD 2012 SC 501) (5-MB).
7. "Ahmad Din v. Muhammad Shafi and others" (PLD 1971 SC 762) (2-MB).
8. (PLD 1960 SC 229)
9. (PLD 1960 Lah. 834)
10. "Mst. Zainab v. Mst. Raji and others" (PLD 1960 SC (Pak.) 229) (5-MB).
11. "Mst. Zainab Bibi and others v. Fazal Muhammad and others" (2005 SCMR 1660) (2-MB).
12. "Faizuddin Ahmad v. Muhammad Yousaf and another" (1988 SCMR 1289) (2-MB).
13. "Muhammad Saleem and others v. Sardar Ali and others" (2004 SCMR 1640) (3-MB).
14. "Nazeer Ahmad and others v. Ghulam Mehdi and others" (1988 SCMR 824) (3-MB).
15. "Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad"
(2012 SCMR 730) (2-MB) & "Muhammad Siddique (Deceased) through LRs and others v. Mst.
Noor Bibi (Deceased) through LRs. and others" (2020 SCMR 483) (2-MB).
16. See testimony of Rana Shabbir Khan (PW-3), the only LR of Mst. Ghafooran Bibi,, who took the witness stand.
17. "Salamat Ali and others v Muhammad Din and others" (PLD 2022 SC 353) (3-MB).
18. The limitation for laying a challenge to a fraud. Also see (2005 SCMR 1660).
19. "Muhammad Rustam and another v Mst.Makhan Jan and others" (2013 SCMR 299) (3-MB).
20. "Mst. Grana through Legal Heirs and others v Sahib Kamala Bibi and others" (PLD 2014 Supreme Court 167) (2-MB).
21. "Ghulam Ali v Mst. Ghulam Sarwar Naqvi" (PLD 1990 SC 1) (2-MB).
22. "Atta Muhammad v Maula Bakhsh and others" (2007 SCMR 1446) (3-MB).
23. Salamat Ali and others v Muhammad Din and others" (PLD 2022 SC 353) (3-MB).
24. "Syed Kausar Ali Shah and others v Syed Farhat Hussain Shah and others" (2022 SCMR 1558) (2-MB).
25. "Abdul Haq and another v Mst. Surrya Begum and others" (2002 SCMR 1330) (2-MB), "Taj Muhammad Khan through L.Rs. and another v Mst. Munawar Jan and 2 others" (2009 SCMR 598) (2-MB) (2-MB), "Muhammad Rustam and another v Mst. Makhan Jan and others" (2013 SCMR 299) (3-MB); "Ghulam Abbas and others v. Mohammad Shafi through LRs and others"
(2016 SCMR 1403) (2-MB); "Jamila Khatoon and others v. Aish Muhammad and others" (2011 SCMR 222) (2 MB)
26. "Saadat Khan and others v Shahid-Ur-Rehman and others" (PLD 2023 SC 362) (3-MB).
27. "Khushi Muhammad through L.Rs. and others v. Mst. Fazal Bibi and others" (PLD 2016 Supreme Court 872) (5-MB).
28. "Shabla and others v Ms. Jahan Afroz Khilat and others" (2020 SCMR 352) (2-MB)
29. "MOHAMMAD BOOTA (DECEASED) through L.Rs., and others v Mst. FATIMA daughter of Gohar Ali and others" (2023 SCMR 1901) (3-MB)
30. "Noor Din (Deceased) through LRs v Pervaiz Akhtar and others" (2023 SCMR 1928) (3-MB).
31. "Madan Gopal and 4 others v. Maran Bepari and 3 others" (PLD 1969 SC 617) (2-MB).
32. Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others (2019 SCMR 524) (2-MB), Alloo v.
Sher Khan and others (PLD 1985 SC 382) (3-MB) Muhammad Tufail and 2 others v. Ghaus Muhammad through Legal Representatives (PLD 2007 SC 26) (2-MB).