The dispute relates to the land measuring 9-1/2 kanals situated in Chak No.109/SB Tehsil and District Sargodha which was allotted under the Settlement Laws in lieu of land left in India which was originally owned by one Ghulam Muhammad. Ghulam Muhammad died in India leaving behind one daughter i.e. The petitioner and Mst. Hasi deceased, the mother. The land in India was mutated in the name of Mst. Hasi as mother of Ghulam Muhammad. According to the learned counsel for the petitioner this mutation should be presumed to have been sanctioned in favour of mother exclusively under custom, because otherwise according to Muhammadan Law the petitioner would have been given the share as sharer being the daughter of the deceased. After partition of sub--continent petitioner and Mst. Hasi migrated to Pakistan and settled in District Sargodha where an allotment was obtained in lieu of the said suit land left in India. It was obtained in the name of Mst. Hasi. Mst. Hasi died on 21-2-1959 and Mutation No.266 regarding inheritance was sanctioned on 6-3-1961 mutating the entire land in favour of the petitioner as daughter of Ghulam Muhammad.
2. The respondents/plaintiffs who are heirs of Mst. Zainab Bibi deceased who was allegedly the real sister of Mst. Hasi claimed that their mother Mst. Zainab Bibi was entitled to one-half share in the entire land through inheritance of Mst. Hasi, therefore, they were the owners of one-half of the land.
It may be mentioned here that Mst. Zainab Bibi died on 25-3-1967. During her lifetime neither Mst.
Zainab Bibi deceased nor the present petitioner after her death agitated the matter before any authority against the said mutation of inheritance passed in favour of the petitioner on 6-3-1961.
The respondents filed a suit on 13-9-1981 challenging the legality of aforementioned Mutation No.266, dated 6-3-1961 and claimed that they were entitled to land to the extent of one-half share which according to them was the share of Mst. Zainab which should have been given to her. It appears that their case was that Mst. Hasi was the owner in her own right of the entire land and it was to be mutated in the name of heirs of Mst. Hasi and not of Ghulam Muhammad deceased. The suit was contested. The learned trial Court after framing the issues and recording evidence dismissed the suit as barred by time and also on the ground of estoppel, through judgment and decree, dated 22-9-1987. The appeal filed by the respondents has been accepted by the learned Additional District Judge, Sargodha, through judgment and decree, dated 4-10-1988 holding that the suit was within limitation and decreed the suit. This judgment and decree has been assailed in this revision petition.
3. Learned counsel for the petitioner argued that the suit was barred by time. He also argued that Mst. Zainab Bibi deceased predecessor-in-interest of the respondents and also the respondents were estopped from claiming any right in the land. To support his contention that the suit was barred by time learned counsel relied upon judgment reported in Ahmad Din v. Muhammad Shat and others (PLD 1971 SC 762).
4. There can be no denial of the fact that had Mst. Hasi been given the land on the death of Ghulam Muhammad the original owner under the Muhammadan Law she could not have been given more than 1/6th share as mother and one-half share would have been mutated in favour of the petitioner as daughter and the remaining land would have gone to them in the same ratio on the principle of return. Since Mst. Hasi was given the entire land on the death of Ghulam Muhammad i.e. Her son, therefore, the stand of the learned counsel for the petitioner that she was given entire land under custom as life estate has considerable force. That being so on the termination of her life estate on her death on 21-2-1959 the heritance opened on Muhammadan Law heirs of Ghulam Muhammad deceased. Mst. Hasi deceased was to inherit 1/6th share in the land as mother of Ghulam Muhammad deceased in the presence of the present petitioner being the daughter of Ghulam Muhammad who was entitled to one---half share in that capacity. There being no other heir, therefore, the remaining land was to be given to them in the same ratio on the principle of return. The share of the land so inherited by Mst. Hasi deceased was to be inherited by her heirs.
The petitioner as daughter of son of Mst. Hasi was to inherit one-half share as sharer out of the share devolved on Mst. Hasi from Ghulam Muhammad and the remaining land of Mst. Hasi was to be inherited by Mst. Zainab Bibi deceased as full sister of Mst. Hasi. If the share of Mst. Zainab Bibi is calculated in this manner it was common ground between the learned counsel for the parties that she would not have inherited more than 1/8th share in the entire land. The case of the learned counsel for the respondents, however, was that the question of inheritance should be decided considering Mst. Hasi as full owner and on that basis her heirs should be allowed to inherit the land, as such, Mst. Zainab Bibi was entitled to get one-half share of the entire land as sister of Mst. Hasi, therefore, the respondents as her heirs are the owners of one-half of the land and they be so declared. So far as question of limitation is concerned it has been argued that according to judgment reported as Mir Baluch Khan and others v. Mst. Lal Bibi and others (P.L D 1972 SC 84), the principles of limitation are not applicable in the cases of inheritance.
5. The grievance that the inheritance should devolve on Muhammadan Law heirs of Mst. Hasi and she be treated as full owner and not on the heirs of Ghulam Muhammad deceased, the same should have been agitated within the period of limitation prescribed by law. Through Mutation No.266 sanctioned on 6-3-1961 the question of inheritance was decided treating Ghulam Muhammad deceased as the owner and it was sanctioned in favour of the petitioner as her daughter mutating the entire land in her name. It was an act through which the plea which is now being raised that Mst. Hasi should have been treated as full owner and inheritance should have opened to her heirs as against heir of Ghulam Muhammad deceased was denied. Mst. Zainab Bibi, therefore, was required under the law to have agitated this matter by launching proceedings through a civil suit or otherwise to get redress of her grievance. She till her death did not raise any objection to the passing of the said mutation. Even after her death on 25-3-1967 till the filing of the suit on 13-9-1981 the respondents as heirs of Mst. Zainab Bibi did not take any steps for redress of their grievances. They even did not take any step for getting a mutation sanctioned in their favour regarding inheritance of Mst. Zainab Bibi deceased. In the plaint they attempted to make out a case that Mst. Zainab Bibi came into possession of the land in dispute and had been receiving the share of the benefits in the ratio of one-half share and that Mst. Zainab Bibi was given to understand that in the revenue papers a mutation had been sanctioned in her name also. They also averred that they had also been sharing the benefits of the land and came to know two months prior to the filing of the suit that mutation in dispute was as a matter of fact sanctioned in favour of the petitioner alone. It is manifest from these averments that effort of the respondents was to make out a case of misrepresentation and even fraud allegedly played upon Mst. Zainab Bibi so as to maintain that the suit was within limitation from the date when the said fraud came to their knowledge. There is no evidence to this effect to establish these allegations. Manzoor Ahmad who was examined by the respondents as their attorney as P.W.3 did not state anything regarding these allegations. The law is well settled that the suit is to be decided on the basis of evidence produced by the parties and not on mere allegations contained in the plaint as the pleadings are not the evidence. The learned trial Court in these circumstances rightly held that the suit was barred by time which was filed after about 21 years of the sanction of impugned mutation through which land was mutated in favour of Mst. Hafizan, the petitioner, as daughter of Ghulam Muhammad deceased which means that Ghulam Muhammad deceased was treated to be the owner for the purpose of inheritance. The reported judgment relied upon by the learned counsel for the respondents that in the cases of inheritance limitation did not apply in these circumstances is not attracted to the facts and circumstances of this case inasmuch as devolution of inheritance on heirs of Ghulam Muhammad deceased on the assumption that he was treated to be the owner of the land as against Mst. Hasi was required to be challenged within the period of limitation prescribed by law to establish that as a matter of fact Mst. Hasi deceased was the full owner of land and inheritance should devolve on her heirs. The limitation for filing such a suit had started on 6-3-1961 when the impugned mutation was sanctioned. The learned lower appellate Court misapprehended this important aspect of the case. On the other hand the learned trial Court rightly held that the respondents were estopped from bringing the suit due to their conduct by not agitating the matter for such a long time. Their conduct clearly established the acceptance by them the correctness of this fact that inheritance was to devolve on the heirs of Ghulam Muhammad.
6. Since Ghulam Muhammad deceased was the full owner of the property, Mst. Zainab deceased could have inherited only one-half share as sister of Mst. Hasi out of the shares inherited by Mst.
Hasi as mother of Ghulam Muhammad deceased as mentioned above and not one-half of the entire land. Further Mst. Zainab Bibi as full sister of Mst. Hasi could have inherited one-half share from Mst. Hasi as sharer if there had been no child or child of a son howlowsoever. The petitioner being child of Ghulam Muhammad deceased i.e. Son of Mst. Hasi, therefore, she was to inherit one- half share as sharer out of the share of Mst. Hasi inherited by her from Ghulam Muhammad there being no son, daughter or son's son and the remaining one-half share was to be inherited by Mst.
Zainab as residuary which on her death was to devolve on the respondents. Learned counsel for the respondents was asked whether the respondents would like their case to be considered on the said basis because prima facie the respondents had right to get the share in the land as heirs of Mst. Zainab Bibi as Mst. Zainab Bibi had inherited 1/8th share in the land as discussed above and the difficulty of bar of limitation could be overcome by considering Mst. Zainab Bibi as joint owner since the inheritance opened. Learned counsel for the respondents submitted that the respondents do not want to press their claim to get any share in the land on that basis because if they are given any land accordingly, they will be having a very small share i.e. 1/8th share which will be of no use to them. He reiterated that Mst. Hasi if treated as full owner and question of inheritance was decided on that basis only then the respondents are interested to get the share in the land as heirs Mst. Hasi through Mst. Zainab Bibi. As has been discussed above the suit for that purpose is barred by time.
7. For the foregoing reason the learned lower appellate Court has acted wish material irregularity and illegality in exercise of its jurisdiction in interfering with the judgment and decree of the learned trial Court by holding that the suit filed by the respondents was within limitation. The judgment and decree of the learned trial Court was perfectly in accordance with law and the evidence produced on the record and suffered from no illegality. The revision petition is accepted. The impugned judgment and decree, dated 4-10-1988 of the learned lower appellate Court is hereby set aside and that of the learned trial Court 1 restored. The parties are left to bear their own costs.
M.Z.S./H-111/L