The revisional jurisdiction of this Court has been invoked to set aside the judgments and decrees dated 23-1-1989 and 30-4-1989 pronounced by the learned Civil Judge, Bahawalnagar, and the learned District Judge, Bahawalnagar, respectively. The learned Civil Judge has granted a decree in favour of Mst. Zaiban respondent No.l, regarding her share and Mutation No.384 attested on 14- 6-1952 was annulled. The learned District Judge dismissed the appeal lodged by the present petitioners.
2. The brief facts of this case are that one Ahmad was the owner of the land in dispute and the land in village namely, Qasimaka Othar. Ahmad died and the land situate in village Qasimkahithar was mutated in favour of his legal heirs Kamal, his son, Mst. Zaiban and Suban, two daughters. It is alleged that the property in dispute which is situated in village Qasimaka Othar was got mutated by Kamal in his own favour to the exclusion of his sisters Mst. Zaiban and Mst. Suban. The mutation was attested in the year 1952. Mst. Zaiban had been receiving the share of the produce and when it was not given to her about three years prior to the suit, she was made known that Kamal had got mutated the property in dispute in his favour. She sought the assistance of the learned trial Court for a declaration and possession regarding the property in dispute and the annulment of Mutation No. 384, dated 14-6-1952.
3. The petitioners contested the suit and, inter alia, contended that it was barred by time and Mst.
Zaiban had no cause of action to bring the suit. They assailed the valuation for the purpose of court-fee and claimed special costs under section 35-A of the C.P.C. The learned trial Court formulated the following issues:- (1.)Whether the plaintiff and Mst. Suban are the legal heirs of Ahmad deceased and inheritance Mutation No. 384, dated 14-6-1952 of late Ahmad depriving the plaintiff and Mst. Suban Bibi from inheritance is null and void and inoperative against their rights as the same was sanctioned through the dexterity of their brother Kamal? O.P.P.
(2)Whether the instant suit is within time? O.P.P.
(3)Whether the instant suit has not been correctly valued for the purposes of court-fee and jurisdiction? If so, what is the correct valuation? O.P. Parties.
(4)Whether the plaintiff has got no cause of action to file the instant suit? O.P.D (5)Whether the instant suit is based on mala rides and as such the defendants are entitled to recover special costs under section 35-A of the C.P.C. O.P.D.
(6)Relief.
4. The learned trial Court found issues Nos. 1 to 3 in favour of the plaintiff and issues Nos. 4 and 5 against the petitioners/defendants and decreed the suit of Mst. Zaiban to the extent of her share in the disputed property. The petitioners lodged an unsuccessful appeal, which was dismissed on 30- 4-1989.
5. The cardinal ground taken by the learned counsel for the petitioners is that the suit was barred by time and Mst. Zaiban was not entitled to inherit anything out of the property in dispute.
6. It has not been denied that Mst. Zaiban and Mst. Suban are the sisters of Kamal. In the written statement, it has nowhere been stated that Ahmad, who died before Independence adhered to custom and the daughters did not inherit in accordance with the custom prevalent in the locality.
Custom must be alleged and proved.
It may be noted that regarding the property of village Qasimkahithar, Mst. Zaiban and Mst. Suban inherited the property as the daughters of Ahmad. The subsequent mutation was also made according to Muhammadan Law of Inheritance. It sufficiently indicates that the family of Ahmad followed Shariat in matters of inheritance and Mst. Zaiban was entitled to her share in the disputed land.
7. The impugned mutation was sanctioned on 14-6-1952 and the suit was brought on 26-11-1983.
The learned counsel for the petitioners has cited Ghulam Haider v. Harz Allah Bakhsh 1985 SCMR 1218 wherein it was held that the period of limitation starts from the date on which the mutation was sanctioned and the declaratory suit filed to challenge the mutation of inheritance was clearly barred by time in the circumstances of the case. 'The facts of the care in the said precedent are distinguishable. In the said precedent, one Lakhan Khan, who owned property in village Lakhani in Tehsil Taunsa, District D.G. Khan had transferred 7/8th share of his property in favour of his son and two grandsons by way of Tamleek. In the mutation of Tamleek, he got recorded that 1/8th share shall be left for his wife Mst. Sabhai. Lakhan Khan died in the year 1952 and 1/8th share of his land was mutated in favour of his widow Mst. Sabhai on 10-11--1953. She sold her share of land to Harz Allah Bakhsh respondent. Her step son Ahmad died subsequently in 1972. Ahmad's sons Haider and Murad brought a suit against Mst. Sabhai challenging the mutation of inheritance of 1/8th share of the land left by Lakha Khan and sought a declaration for their entitlement to the portion of the said land as heirs of Lakha Khan. That suit was barred by limitation on the ground that Ahmad, the predecessor-in-interest of the plaintiff, who was also one of the donees, was present at the time of the attestation of the said mutation and had raised an objection to the; sanction of mutation in favour of Mst. Sabhai. Therefore, it was held that the period of limitation should commence to run from the date of attestation of mutation.
8. But in this case, Mst. Zaiban lives in another village and had no knowledge of the disputed mutation. It may also be noted that Hassan Bakhsh P.W.1 and Hanif P.W.2 have stated that the petitioners and their predecessor-in---interest had been giving the share of the produce to Mst.
Zaiban and had ceased to give her share three or four years prior to their making a statement on 26-10--1987. Hassan Bakhsh and Hanif P.Ws. Were not subjected to any cross---examination. The presumption is that the petitioners had accepted their version in toto. In this manner, Mst. Zaiban can be deemed to be in possession of this land just before the lodging of the suit. Furthermore, it may be noted that she being a co-share of the property in dispute could be deemed to be in possession of her share as well on behalf of the other co-sharers. The point of limitation hat rightly been decided in her favour.
9. It appears that in order to deprive the womenfolk of the inheritance of their father, the male heirs coin excuses for grabing their property. This is also a case of this kind. The learned lower Courts have not committed any illegality or material irregularity in the exercise of their jurisdiction. I see no merit in this civil revision and dismiss the same in limine.
Civil Miscellaneous No. 1 of 1989 BWP
10. Since the civil revision has been dismissed in limine, this petition has become infructuous and stands disposed of.