This revision-petition by Haqeequllah alias Atteequllah and others is directed against' the judgment and decree of the learned Additional District Judge Mardan,. Dated 18-9-1984 whereby the appeal filed by respondents 1 to 5 herein against the judgment and decree of the learned Civil Judge dated 30-10-1980 was accepted arid the same was set aside and in the result the case was remanded to the trial Court for decision according to the directions contained in the impugned judgment.
2. Briefly stated the facts of the case are that Gut Raziq and Muhammad Raziq had lodged a civil suit against Hazrat Nabi and others, respondents herein, for a declaration to the effect that they are owners in possession of land measuring 38 Kanals 19 Marlas as described in the heading of the plaint and that the sale and gift mutations on behalf of the limited owners are wrong, illegal and ineffective on the rights of the plaintiffs and in the alternative have prayed for the possession of the suit land. It is alleged in the plaint the Badshah Gut was the owner, of 1/5th share measuring 63 Kanals and similarly Abdul Nabi, Abdur Raziq, Badshah Gut, Sahib Gut and Ajab Gut were the owners of 1/5th share each; that Badshah Gut died during the time of "Rawaj" and consequently his property devolved upon his widow and daughters as limited owners; that Mst. Roshana, the widow of Badshah Gut, the last limited owner died 2/3 months prior to the institution of the suit and, therefore, the estate opened for succession between the "Shari" heirs of Badshah Gut in the proportion that Mst. Tana and Roshana widows 3/24th shares, Mst. Zar Baha and Mst. Hussan Baha daughters 16124th shares and Abdul Raziq 5/24th shares; that on the perusal of the revenue record in connection with the entry of inheritance mutation of Badshah Gut the plaintiffs came to know that Mst. Tans had' attested Gift Mutation. No.85 attested on 12-8-1940 in favour of Abdul 'Nabi father of defendants Nos.1 to 3 and Mutation No.142 attested on 27-2-1943 also in favour of the-said Abdul Nabi, and that the plaintiff No.1 has also purchased land measuring 25 Kanals 17 Marlas from Mst. Zar Baha daughter of Badshah Gut through registered sale-deed dated 18-7-1962.
3. The defendants contested the suit .And on the pleadings of the parties the learned trial Court framed as many as 12 issues and after recording the evidence of the parties pro and contra the learned trial Judge passed the decree as prayed for in favour of the plaintiffs on 30-10-1980.
4. Dissatisfied with the judgment and decree respondents Nos. l to 5 herein preferred an appeals which was heard by the Additional District Judge, Mardan, and who vide impugned. Judgment dated 18-9-1984 accepted the same and while setting aside judgment and decree of the learned trial Jud a remanded the case to him for discussing issue:, Nos. 1, 9, 10, 11 and 12 separately in accordance with law and also to frame ~an issue regarding the purchase of land by plaintiff No.1 from Mst. Zar Baha vide registered sale-deed dated 18-7-1962 and also to frame an issue regarding the purchase of land as alleged by defendant 29 to 34 in para. 7 of their written statement and to try the case afresh.
5.I have head the learned counsel for the parties at length and have perused the record with their help. In this case the plaintiff had claimed the suit property on two counts; first being the heir of Wawa Gul and second that they are entitled to 25 Kanals 17 Marlas on account of purchase from Mst. Zar Baha daughter of Badshah Gut vide registered sale deed dated 18-7-1962.The learned trial Judge after recording evidence was legally required to discuss the rights of the parties according to law and to give distinct findings on these two prayers A separately, but in the judgment. The learned trial Judge recorded that plaintiffs are granted the decree as prayed for, thus without giving distinct findings with regard to the two prayers mentioned in the plaint.
6.As regards the first claim the law on the subject was as to when limitation opens for succession. It is to be ascertained as to when last full owner died and who are his "Shari" heirs living at the time of his death. For a correct decision on this point the learned trial Judge ought' to have discussed the death of Badshah Gut and also about his "Shari" heirs - living at the time of his death. A perusal of B the plaint in this regard shows that the facts given therein are patently wrong. A perusal of the pedigree--table and the plaint shows that Fazle Raziq, who is admittedly the brother of Muhammad Raziq and Gul Raziq sons of Abdul Raziq, has not been impleaded as a plaintiff therein.
Therefore, plaintiffs 1 and 2 could not claim the entire property in absence of Fazle Raziq. As regards the question as to when limitation opens for succession the authority reported in Qaim Khan through Legal Heirs v. Yaqub and 25 others PLD 1986 Pesh. 10 is relevant on the point which lays down as under:- "Section 3(2) [as amended by Act (XI of 1950)]-Succession to property before promulgation of N.- W.F.P. Muslim Personal Law (Shariat) Application Act, 1935, when Custom was in force--Act VI of 1935 has retrospective effect--Dispute with respect to succession to estate of deceased Muslim-- Deceased Muslim to be deemed to have died under domain of Muslim Law, even if death had taken place before coming into force of N.-W.F.P. Muslim Personal Law (Shariat) Application Act, 1935."
Section 3 of West Pakistan Shariat Application Act, 1962, which is relevant in this case; runs as under:- "Termination of life estate under Customary Law. The limited estates in respect of immovable property held by a Muslim female under the Customary Law are hereby, terminated."
This section was substituted by the West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Ordinance, 1963 which also provided that this shall be deemed to have always been so substituted. The amended section 3 reads as under:- "Termination of limited estates under Customary Law. The limited estates in respect of immovable property held by Muslim females under the Customary Law are hereby terminated."
So, in view of the above in my view the judgment of the learned District Judge seems to be perfectly correct and according to law.
7.As regards the second claim regarding 25 Kanals 17 Marlas on account of purchase from Mst. Zar Baha of 1./3rd of the total property is taken into account, it comes to .20 Kanals only. Even if Mst. Zar Baha was entitled to the same, she could not sell more than her share. D Now we have to see if she could legally allienate the same Admittedly West Pakistan Shariat Application Act was enforced in 1962 and limited estates were terminated under section 3 of the said Act. So in view of the enforcement of the said Act limited estates were extinguished at the time of filing of the present suit and estate of limited owner opened for succession. As such, the question of death or life become irrelevant in the case in hand. The learned trial Judge has given finding in favour of the predecessor-in-interest of the defendants regarding Gift Mutation No.85 attested on 12-11-1940.
This mutation being in continuation of the life estate is inoperative. The sale-deed dated 18-7-1962 regarding 25 Kanals 17 Marlas was also during the continuation of life estate being prior to 31-12- 1962. This transaction too was hit by the same principle as mentioned above and the learned trial Judge was not competent to annul it.
8. The other important aspect of the case is that the question of limitation and adverse possession are also involved in the case in hand. The suit was brought on 29-10-1976 when the Act of 1962 was in force and, therefore, this is a statutory point of limitation. So far as purchase of 25 Kanals 17 Marlas is concerned that is also beyond the point of limitation. The learned trial Judge has wrongly applied Articles 142 and 144 of the Limitation Act in this case. In fact it is Article 140 of the Act .Which is applicable in this case. Again the same authority reported above will apply which lays down that a suit having been brought beyond statutory period of 12 years was hit by limitation and the Courts below were justified in dismissing the suit on the plea of limitation. The learned District Judge was perfectly correct in directing the learned trial Judge to give distinct findings on issues Nos. 1, 9, 10,. 11 and 12.
9. As regards the powers of the Appellate Court to interfere in such like cases, reference can conveniently be made to the authority reported in. Hidaytullah Khan v. Board of Revenue West Pakistan, Lahore and others PLD 1966 (W . P .) Pesh. 1 wherein their Lordships have observed as under:- "(b) Appeal-- Connotation--Appellate Court or Authority has inherent jurisdiction to order remand--Motor Vehicles Act (IV of 1939), section 64.
"It is manifestly clear from the definition of the term 'appeal' that it is inherent in the right of appeal that the whole case, including the facts, is within the jurisdiction of the appellate authority, unless and until in a particular statute the right of appeal is whittled down or hedged in by certain limitations. In other words, the appellate Court has the jurisdiction of giving all the relief which the original Court or tribunal can give. It would, therefore, follow that the power of remand, which is merely ancillary and incidental, is inherent in the appellate authority in that in certain cases where the Court or Tribunal has violated the statutory provision it may become impossible for the appellate authority to give an effectual and proper decision without remitting the case to the Court of first instance."
Keeping in view the facts of the case coupled with the legal position, I am of the firm view that the learned Additional District Judge was legally correct in passing the impugned order of remand which is not open to any exception by this Court exercising its revisional jurisdiction. As such, I would dismiss this revision petition with no order at to costs.