' Muhammad son of Mera Khan was resident of village Esa Khel Hamid, Tehsil and District Peshawar.
He owned landed property in that village, the details 'of which have been given in the heading of the plaint forming basis of the suit out of which this revision petition arises. He had died in the year 1939 and his inheritance`Mtation No.46, which was entered by Patwari Halqa on 22-7-1939 on a report made by Refiuddin, Chowkidar of the village, was attested on 15-6-1940 in favour of his widow Mst. Almasa, to the extent of one-fourth share, and his brother Sohbat, to the extent of remaining three-fourth share. Effect to this mutation was given in the subsequent revenue record which remained unchanged till today.
2. It appears that Sohbat, the brother of Muhammad deceased, was not satisfied with the attestation of inheritance mutation of Muhammad in favour of his widow Mst.Almasa, as before such attestation he had raised objection that Mst. Almasa was not entitled to receive inheritance from Muhammad deceased. Sohbat, however took no action upto the year 1973 when on 3-12-1973 he instituted this suit claiming a declaration to the effect that since Mst. Almasa, defendant in the suit, had been divorced by Muhammad during his lifetime and a document to that effect had also been executed by him on 6-5-1939, she was, for that reason, not entitled to inherit the property from Muhammad and that inheritance Mutation No. 46, attested on 15-6-1940, being against law, in so far as it related to the share of Mst. Almasa, was inoperative against his rights and the entry made in the revenue record on its basis being against law was also void and ineffective and was liable to correction. The alternative relief claimed by Sohbat was the possession of the suit land. It was stated in the plaint that Muhammad had divorced his wife Mst. Almasa during his lifetime and a document evidencing such divorce was also executed by him on 6-5-1939. It was also mentioned in the plaint that Mst. Almasa defendant wrongly got attested inheritance mutation of Muhammad in her favour, which was ineffective against the plaintiff's Tights. It was further averred in the plaint that Mst. Almasa defendant never remained in possession of the suit land, which through out remained in plaintiff's possession. It was also stated in the plaint that Mst. Almasa defendant was now trying to interfere with the plaintiff's possession on the suit land and a report had been made by her to Illaqa Police which resulted in proceedings under section 107/151, Cr. P . C .
3. The suit was contested by the defendant on factual and legal grounds. She denied having been divorced by her husband Muhammad. She also claimed that she had been receiving her share of produce of the suit land from the plaintiff. She, however, did not dispute the averment made in the plaint respecting action taken by Illaqa Police under section 107/151, Cr.P.C., but alleged that it had become necessary because the plaintiff had stopped giving share of produce to her.
4. The pleadings of the parties were reduced to the following issues : -
(1) Whether the plaintiff has got any cause of action?
(2) Whether the suit is within time?
(3) Whether the plaintiff is estopped to bring the present suit?
(4) Whether the defendant was divorced by Muhammad deceased in his lifetime and as such she is not entitled to inherit from him?
(5) Whether the plaintiff is entitled to the declaration prayed for?
(6) Relief.
5. The learned trial Judge decided all the issues against the plaintiff and the suit was, consequently, dismissed with costs. The aggrieved plaintiff went up in appeal to the Court of District Judge, which was, however, dismissed on 5-12-1979 by the learned Additional District Judge, Peshawar. Both the judgments and decrees of the two Courts below have been assailed by the plaintiff in this revision petition.
6. Mr. Muhammad Aman Khan, Advocate appeared on behalf of the petitioner and Mr.Abdur Rehman Khan, Advocate appeared on behalf of the respondent. Their arguments were heard and the record perused with their assistance.
7. The learned counsel for the petitioner, in his arguments before me, assailed the findings of the learned two Courts below on all the issues. His contention was that there was ample evidence on the record to show that Mst. Almasa respondent had been divorced by Muhammad and for that reason she was not entitled to inherit the disputed property from him. He urged that a written divorce-deed executed by Muhammad (deceased) was also available on the record, duly proved by the statements of its scribe and one of the marginal witnesses, and that in presence of this document on record, the learned two Courts below could not have come to the finding that Muhammad had left behind Mst.Almasa as his widow. The learned counsel further contended that the findings of the two Courts below were erroneous, which were the result of misreading and non- reading of material evidence brought on record. The learned counsel also argued that since the petitioner was admittedly in possession of the suit land, any fresh invasion on his rights or title furnished a .fresh cause of action to him, and that in the light .of this principle and applying Article 120 of the Limitation Act to this case, the action taken by Illaqa Police for security proceedings between the parties, the fact which was also admitted by the respondent in her written statement, gave a fresh cause of action to the petitioner making his suit within time.
8. The learned counsel for the respondent did not seriously challenge the position taken up by the learned counsel for the petitioner with respect to the application of Article 120 of the Limitation Act to this case and with respect to the fact that the security proceedings conducted by the Illaqa Police at the instance of the respondent furnished a fresh cause of action to the petitioner for this suit. He, however, strenuously contended that the respondent had not been divorced by Muhammad during his lifetime and that the so-called divorced-deed was a forged document prepared after the death of Muhammad and that the concurrent findings of fact reached by the learned two Courts below on this point could not be interfered with by the High Court in revisional jurisdiction. His alternate contention was that even if we were to assume, for the sake of arguments, that the divorce-deed was genuine, yet the divorce, according to the evidence brought on record, having been effected during the death-illness of husband could not deprive the wife from inheriting the property of her husband because Muhammad had died soon after the execution of this document and before the expiry of 'Iddat' of Mst. Almasa respondent. According to law, the learned counsel urged, such an attempt by a husband cannot operate to deprive the wife of the right of inheritance. Mst. Almasa respondent had not, therefore, become disentitled from inheriting the property of Muhammad, her husband.
9. The revenue record produced in this. case clearly established that the petitioner was in possession of the suit land. This fact was even not disputed by the respondent. That being so, I agree with the learned counsel for the petitioner that the dispute between the parties over sharing of produce of the suit land, which led to security proceedings initiated by Illaqa police at the instance of the respondent, furnished a fresh cause of action to the petitioner for this suit. I also agree with him that the suit was governed by Article 120 of the Limitation Act and that it was instituted in Court within time. The findings of the learned two Courts below on issue No.2, being the result of misconception and misapplication of law, .are not maintainable, which are hereby reversed.
10. With respect to the findings of the learned two Courts below on issue No. 3, the learned counsel for the respondent failed to point out any material on the record which could support such findings.
That being so, such findings are also liable to reversal. I order accordingly.
11. Now I come to the crucial point in this case whether or not Mst. Almasa had been divorced by .Muhammad. If I were to decide in the affirmative, then Mst. Almasa was not entitled to inherit the property left by Muhammad. ,But if I were to decide in the negative, then the inheritance mutation had been rightly attested and the plaintiff, in consequence, would be out of Court. Both the learned two Courts below have found this fact in favour of Mst. Almasa. According to the judgments impugned herein the petitioner had not brought reliable evidence on the record to prove that Mst.Almasa had been divorced by Muhammad in his lifetime. It has also been held by the learned two Courts below that the divorce-deed, said to have been executed by Muhammad was a forged document, and had it been in existence at the time of the death of Muhammad, then the petitioner, in whose custody it was found, would have produced it before the Revenue Officer who had attested the inheritance Mutation of Muhammad, after allowing the petitioner three chances of producing before him cogent evidence in support of the fact that Mst.Almasa had stood divorced by Muhammad.
12. The scribe of the divorce-deed had appeared in the witness-box to testify to the execution by Muhammad of the divorce-deed dated 6-6-1939, and so did one of the marginal witnesses, Gul Ahmad. The statements given by these witnesses at the trial were in the mind of the two Courts below while disposing of this issue. These witnesses were disbelieved by the two-Courts below for reasons given by each Court in its judgment impugned herein. One of such reasons was that had such deed been in existence at the time of the death of Muhammad or even at the time of attestation of his inheritance mutation then the same should have been produced by the petitioner before the Revenue Officer attesting the inheritance mutation, who had afforded to the petitioner opportunities to prove that Mst. Almasa had no right to inherit from Muhammad. Long silence of the petitioner after attestation of inheritance mutation of Muhammad in the year 1940 had also influenced the mind of the learned two Courts below. These- are the grounds which also appear to me to be convincing for reaching the conclusion arrived at by the learned two Courts below. I would, therefore, not interfere with the concurrent findings of fact reached by the learnedA two Courts below on the point that Mst.Almasa respondent had not been divorced by Muhammad.
13. I would now deal with the alternate argument of the learned counsel for the respondent regarding the effect of the divorce on the rights of Mst. Almasa when it was pronounced during the death-illness. of Muhammad. It is true that in irrevocable divorce pronounced by a husband during his death-illness, not at the instance of wife, cannot prevent the wife from inheriting the property of her husband, if the death of the husband takes place during 'Iddat' period of the divorcee. Under Muhammadan law, in such an.evenuality, she is entitled to inherit the property of the deceased husband. But in this case this ground was not taken up by the respondent in her written statement, though she was having the services of a very competent lawyer, not was any issue framed thereon, with the result that, as urged .by the learned counsel for the petitioner, the opposite side was prejudiced in not leading proper evidence with respect to this question of fact. The learned counsel for the respondent, therefore, cannot be permitted to take up this ground in support of the findings of the learned two Courts below on issue No.4.
14. Since the petitioner fails on issue No.4, answer to issue No.5 must come in the negative.
15. In the result, there being no merit in this petition, it is here by dismissed with costs.