' This revision petition arises out of a suit brought by Baidullah and Mst.Roshan Jan heirs of Fateh Khan residents of village Peshtakhara Bala, Tehsil and District Peshawar for possession of 7/8 share in land measuring 82 Kanals 19 Marlas comprising several Khasra numbers, as detailed in the plaint, situated in village Peshtakhara Bala Tehsil and District Peshawar. Plaintiff's suit and appeal having been dismissed by the learned Civil Judge 2nd Class, Peshawar and Additional District Judge, Peshawar on 3-10-1969 and 3-5-1979, respectively, they have filed this revision petition for setting aside the judgments and decrees of both the Courts below and for the grant of decree prayed for in the plaint.
2.The case set up by the plaintiffs in their plaint to be briefly stated is that the land in suit was originally owned and possessed by Sarfaraz Khan son of Najibullah and at the time of his death Fateh Muhammad, his brother was alive. The pedigree-table of Sarfraz Khan and that of Mst.
Meeno is given below for proper understanding of the inter se relationship of the parties to the suit:- Najibullah Khan Fateh KhanNasrullahSaadullahSarfaraz KhanKhanKhan Muhammad Yousaf Mst. RoshanBaidullah Jan, daugh-Khan, sonMadat KhanMst.Meeno ter, Pltff-2.Pltff-1.widow.
Mst. Izato Daughter Defdt-5.
Sher Ali Khan Mst. MeenoAhmad Khan daughterson Mat. JanMat.MuntahaKhalidAbdurMahmood SultandaughterKhanRashidKhan daughterDefdt-3.KhanDefdt-1.
Defdt-4.Defdt-2.
Muhammad Nawaz.Ghulam.
' It is alleged that Sarfraz Khan died in the year 1934 when Custom was the rule of law, his inheritance, therefore, devolved on his widow Mst. Meeno and his daughter Mst. Izato in equal shares and inheritance Mutation No.801 to this effect was attested on 6-8-1937 whereafter they remained in its possession. Mst. Meeno died in the year 1964 whereby her inheritance mutation No.2117 was attested in favour of Captain Mahmood Jan Khan and others defendants 1 to 4 her brother's sons and Mst. Izato her daughter. This mutation was challenged by the plaintiffs in appeal and revision before the Revenue Officers but with no success.
3. The present suit was instituted in the Court of Senior Civil Judge, Peshawar in which it was alleged that Mst. Izato and Mst. Meeno were holding the suit property as limited owners and on the termination of their limited interest on the death of Mst. Meeno and on the enforcement of West Pakistan Shariat Application (Amendment) Act, 1962, plaintiffs are entitled to their Shari Shares mentioned therein as reversionaries of the last full owner. It was further claimed that on the death of Mst. Meeno her share in the estate of Sarfraz Khan, her deceased husband, which comes to 1/8 in the property is to devolve on Mst. Izato her daughter and defendants 1 to 4 her legal heirs. That the mutation of inheritance of Mst. Meeno attested in respect- of 1/2 share in the property in dispute in favour of defendants 1 to 4 was, therefore, illegal and not binding on the plaintiffs right.
4. The defendants 1,3 and 4 resisted the suit of the plaintiffs by filing a joint written statement in which several legal and factual objections were raised to the maintainability of the suit. On facts the allegation made in the plaint that Sarfaraz Khan died in the domain of custom was specifically denied. It was asserted that Sarfraz Khan died in the year 1937 after the enforcement of Muslim Personal Law (Shariat) Application Act, 1935 and that Mst. Izato and Mst. Meeno were holding the property as full owners. Pleas of limitation and adverse possession were also raised in that context of the case.
5. On the pleadings of the parties, the learned trial Judge framed the following issues:-
(1) Whether the suit is within time?
(2) Whether defendants or their predecessor-in-interest have been in adverse possession of the suit property for more than 12 years?
(3) Whether the pedigree-table of Najibullah Khan deceased is correct?
(4) Whether Sarfaraz Khan is the son of Najibullah Khan or the real brother of Fateh Khan father of the plaintiffs, if so, its effect?
(5) Whether Sarfaraz Khan was the owner of the suit property?
(6) Whether Sarfaraz Khan died before the enforcement of Shariat Act, 1935, if so, its effect?
(7) Whether Msts. Meeno and Izato were the life estate holders of Sarfaraz Khan, if so, with what effect?
(8) Whether the plaintiffs are entitled to the shares claimed by them?
(9) Relief.
' The evidence led by the parties over the issues consists of the statement of the Patwari in whose statement copies from the revenue record of the year 1929-30 up-to-date have been brought on the file. Certified copy of Mutation No.801 attested on 6-8-1937 has also been placed on the record.
Baidullah Khan appeared as his own witness while Abdul Haq, Dost Muhammad and Muhammad Gul have been produced in support of his case. Captain Mahmood Jan defendant No.1 appeared as his own witness and placed on the file certified copy from the register of death, which is Exh.D.1 pertaining to the death of entry of Sarfaraz Khan. He also produced Abdul Halim, Abdul Qayum and Muhammad Yunus as his witnesses. On the basis of this evidence Mr.Nazir Ahmad Swati, the then learned Civil Judge Peshawar while giving his decision on Issue No.6 after the appraisal of evidence of the parties held that Sarfarat Khan died when Muslim Personal Law (Shariat) Application Act, 1935 was enforced and that his inheritance devolved on his widow and daughter as full owners under the Muhammadan Law and not as customary law heirs. Suit of the plaintiffs was held to be barred by time. It was further held that defendants possession over the suit land was adverse to the plaintiffs, hence dismissed the suit vide his order, dated 3-10-1969. The learned Additional District Judge while dismissing plaintiffs appeal maintained the judgment and decree of the lower Court vide his order dated 3-5-1979.
6. Mr.J.D.Akbarji, Advocate for the petitioners and Mr.Abdul Bari Khan, Advocate for the respondents present and heard.
7. Before addressing arguments on the merits of the case, the learned counsel for the petitioners pointed out that Mst. Zeenat and Mst. Shaheen daughters of Abdur Rashid Khan deceased (defendant No.2) have confessed judgment in favour of the plaintiffs vide C.M. No.108 of 1984, Similarly Fazli Rabbani son of Mahmood Jan legal representative of respondent No.1 have confessed judgment in plaintiffs favour. Ahmad Nawaz Khan son of Mst. Anjuman widow of Abdul Rashid Khan respondents 2 and 3 also confessed judgment vide C.M.No.140 of 1984 and 103 of 1984.
8. The learned counsel for the petitioners contended that though the inheritance mutation of Sarfaraz Khan was attested in the year 1937 i.e. after enforcement of Muslim Personal Law (Shariat)
Application Act, 1935, his inheritance had, however, devolved on his widow and daughter, on the death of Sarfaraz Khan in the year 1934 when custom was the law governing inheritance. The findings of the Courts below based on the alleged entry in the death register wherein Sarfaraz Khan is shown to have died in January, 1937 was challenged on several grounds. He further argued that both the Courts below ignored the material evidence produced by the plaintiffs in rebuttal of the said entry and in support of the plaintiff's claim. It was argued that attestation of mutation in the names of his widow and daughter alone was possible only under the custom. He further argued that even if it is admitted that the property was inherited by both of them under Muhammadan Law then the share shown in the inheritance mutation of the deceased was apparently incorrect and illegal. On the question of adverse possession it was argued that the defendant acquired possession of the suit property as co-sharer in the inheritance of Sarfaraz, and even if plaintiff- petitioners name is omitted from the revenue record, their possession cannot be termed adverse to the lawful heirs, especially when Mst. Izato has not resisted the suit on that plea.
9. The learned counsel for the respondents, however, supported the finding of the two Courts below and argued that concurrent finding of facts recorded by the two Courts below on the proper appraisal of the evidence needs no interference in revisional jurisdiction.
10. The question whether Sarfaraz Khan died before or after the enforcement of Muslim Personal Law (Shariat) Application Act, 1935, is undoubtedly a question of fact and in view of the law on the subject the finding based on proper appreciation of evidence cannot be interfered with in revision.
In the present case, however, it would be proper to refer to the evidence led by the parties to find out whether the decision given by the Courts below is vitiated by misreading of evidence or by omission of certain material evidence available on the record. Plaints had applied to the relevant authority for issuance of a copy of the death entry of Sarfaraz Khan from the register of death, if any, recorded in it of the period 1935 to 1938 giving its particulars. It was reported by P.H.S.Office of the Director of Health Peshawar as under:-[URDU TEXT] ' This bears 26th of March as the date of issuance, however, year is not mentioned therein. Abdul Qayum Accounts Clerk, Lady Reading Hospital, Peshawar was examined who stated that the certificate Exh.P.W.6/1 was issued by him probably in the year 1964 and it bears his signature. He further stated that there was no entry pertaining to the death of Sarfaraz Khan in the relevant register for the period referred to above. He also stated that serial No.54 in the said register has been cut and re-written as 53. Similar is the cutting in serial Nos. 54, 57 and 58 and re-written as 55, 56 and 57, respectively. When questioned he failed to trace out the original application made by the plaintiffs for the issuance of the aforementioned certificate. On the other hand, defendant No.1 has placed on the file certified copy of the entry from the said register showing the death of Sarfaraz at serial No.56 of January, 1937. However, father's name of Sarfaraz Khan, who was shown to be of 80 years of age, is not given in the relevant column. This certificate was issued on 28-6- 1968. This conflicting evidence from the same source has created some confusion which necessitated the summoning of the original register by the Courts below as well as in this Court. On the perusal of the register in the presence of the learned counsel for the parties it appeared that there has been departure from the general practice by not making entry in the relevant column provided for an individual entry rather the death entry of two or three persons is made therein.
There is also shown great delay in the date of death and the date of report of such death in the relevant columns of the register. This being the position both the Courts below had to take into consideration the other evidence and the attending circumstances in giving their findings on the issue. Although it has been held that Sarfaraz Khan died in the year 1937 i.e. after the enforcement of Muslim Personal Law (Shariat) Application Act, 1935, yet they failed to reconcile it with the entries made in the register of mutations showing both Mst. Izato and Mst.Meeno, the former the daughter and the latter the widow of Sarfaraz Khan having inherited equal shares.
11. There is, however, yet another aspect of the case if it is held that Sarfaraz Khan died in the year 1934 or for that purpose before the enforcement of Muslim Personal Law (Shariat) Application Act, 1935, the property in dispute was to devolve on th4 defendants as limited owners in equal shares. In that case on the enforcement of West Pakistan Shariat Application (Amendment) Act, 1962, by operation of law all the Shari heirs of the last full owner would be deemed to have become owners of their respective shares in accordance with the Shariat Law and after the opening of the inheritance as if he had died in the domain of Muhammadan Law at the relevant time and in consequence thereof the character of their possession as limited owners on the termination of the limited estate would be deemed to be that of a co-heir and not adverse in nature. Such possession over the property being permissive from its very inception till handed over to the lawful owner voluntarily or through partition would be deemed to be for and on behalf of all the heirs of the last full owner. After the termination of limited ownership her remaining in possession of the property would not be regarded adverse to the other lawful heirs. This view finds support from the judgment of the Supreme Court of Pakistan in Shamsur Rehman v. Mst. Sher Bano 1974 SCMR 427.
12. However, in the instant case when the Courts below have held that Sarfaraz Khan died when Muhammadan Law was governing the inheritance the plaintiffs case stands on rather a stronger footing. On facts of the case the inheritance of Sarfaraz Khan had to devolve on Mst. Meeno his widow to the extent of 1/8 share, Mst. Izato his daughter to 1/2 share and the rest of it was to be inherited by plaintiff-petitioners as residuaries. The mutation showing the property of Sarfaraz Khan mutated in the names of the two ladies in equal shares, therefore, is clearly against the Muhammadan Law. The omission of plaintiffs name from the inheritance mutation and the revenue record prepared on its basis, would not divest them of the right which vested in them. The question whether wrong entry made in the revenue record on the basis of the mutation would amount to an ouster of the petitioners from the suit property is not a proposition requiring detail discussion. It has been held for and again that mutation does not create title rather it is primarily meant for fiscal purposes. The devolution of property on the death of an owner on his lawful heirs is automatic and does not require seal of authenticity of a Revenue Officer. Mere omission of the names of certain persons from the inheritance mutation, who otherwise are found entitled to inherit under the law to which he is subject would not deprive him of his share in the property nor the question of limitation or of adverse possession would be an impediment in his claim to it.
Reliance can be placed in support of the proposition on a judgment of this Court in Sahib Jan v.
Wali Dad PLD 1961 Pesh. 9, in which distinction has been drawn in cases where the inheritance opened in custom and those where property is inherited under the Muhammadan Law, in the former the law of limitation has been made applicable on the principle and plea of ouster while in the latter case the element of ouster has been held lacking. In the former case the possession of the male heirs was held to be in their own rights while in the latter it was deemed to be of a co-- heir. The nature of possession in the latter case would not be adverse to the other co-heir nor bar of limitation would be pressed into service unless the elements of adverse possession are clearly established in a case. The authority relied upon by the Courts below Mir Pio and another v. Mir Nawaz and others PLD 1965 Pesh. 178 is distinguishable as in that case. Mst. Sardara got the property during custom though it had not been proved that she had any legal right under the custom to hold the property of the deceased. Her possession was, therefore, held to be that of a trespasser. In the instant case admittedly Mst. Meeno and Mst. Izato widow and daughter, respectively of Sarfaraz Khan were entitled to retain possession of the suit land as co-heirs under Muhammadan Law. Their possession, therefore, for all intent and purposes could not be termed hostile and adverse merely that names of the plaintiffs have been omitted from the inheritance mutation.
' For the reasons stated above the judgments and decrees of the Courts below which proceeded on wrong premises are hereby set aside. By accepting the revision petition plaintiffs are held entitled to 3/8 share in the inheritance of Sarfaraz Khan deceased. No order as to costs.