MUNIR A SHEIKH, J.-The respondent filed a declaratory suit challenging the alienation of land by way of gift by Maulu deceased on the ground that under custom he was not entitled to dispose of the land praying that the disposal of the land by Maulu was ineffective against their reversionary rights.
The learned lower appellate Court granted decree to the respondent as prayed for holding that the land was ancestral and having been inherited under custom therefore, Maulu deceased did not have the authority and rights to alienate the same.
2. I have heard learned counsel for the parties. It has been rightly argued that by operation of Section 2-A of the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983, Maulu deceased shall be deemed to have acquired the land as absolute owner under the Muslim Personal Law (Shariat), therefore, the decree passed by the learned lower appellate Court challenged in this appeal affirming the right of reversion under custom is void and of no legal effect.
3. Faced with this situation learned counsel for the respondent/plaintiff argued that according to proviso the judgment and decree passed in this case by the learned lower appellate Court does not fall within the mis-chief of this Ordinance as the possession of the land had already been delivered to the respondent. In support of his this argument he has made reference to Civil misc: application No.l94/C-90 purported to have been moved by Inayat Khan personally and affidavit attached with it in which it was averred that the opposite party I.e. The respondent was reaping the fruit of the applicant's land measuring 120 Kanals which averment according to the learned was an admission of the fact that the respondent had taken over possession of the land.
4. In order to appreciate the argument it is necessary to determine the scope of the said proviso which is reproduced below for facility of reference:- " Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decree."
5. Learned counsel for the respondent argued that Inayat Ali did not move the said civil misc: application and according to him it appears that some one impersonated him. The affidavit attached with the application is shown to have been attested by an Oath Commissioner on 10.1.1990 from which it appears that Inayat Khan was identified by Mr. Ihsanul Haq Advocate who is counsel for the appellant. Mr. Ihzanul Haq Advocate, stated at the bar that he was abroad from 30.12.1989 to 16.3.1990 and was not in Pakistan, therefore, this affidavit is also false and fabricated affair. In this view of the matter the fact that the said application was shown to have been moved by Inayat Khan himself who had denied its filing I would not place any reliance on the so-called admission contained in this application.
6. Apart from what has been observed above the said proviso in its terms does not advance the case of the respondent. In order to bring any judgment and decree out of the purview of Section 2- A of the said Ordinance under this proviso it was necessary that the transaction was past and closed and the possession thereunder must have been delivered under the decree. This appeal was filed within a period of limitation which was admitted and execution of the decree was stayed by order dated 2.5.1967. On 21.7.1967 it was ordered that Status quo shall be maintained. The decree having been challenged in appeal which was still pending, therefore, the impugned decree did not acquire:; the status of past and closed transaction. The decree was a declaratory decree simpliciter therefore, I wounder that the respondent could possibly be delivered possession under the decree or that the same was executable as such. In my view this provision is applicable only where the transaction was past and closed transaction and further that the possession of the property had already been delivered under the decree. Both these conditions must simultaneously exist for making this proviso applicable which do not exist in this case.
7. For the foregoing reasons this appeal is accepted. The judgment and decree passed by the learned lower appellate Court date 22.2.1967 impugned in this appeal is hereby set aside, having been declared to have become void by operation of the said Ordinance. The parties are left to bear their own costs.