GUL ZARIN KIANI, J, Second appeal which arose from a dispute about inheritance to some land left by one Sultan is against judgment and decree of learned District Judge dated 22.9.1966 passed in Appeal No. 118 of 1965, whereby judgment and decree dated May 6, 1965 of the learned trial Court were reversed and the plaintiffs' with costs throughout.
2. Relevant facts, to be briefly put are:- 238 kanals of land at mauza Hamoli, Tehsil and District Mianwali belonged to Sultan son of Muhammad. He was an agriculturist, and in matters of alienation and succession to his land was governed by custom. He died in 1942. Upon his death, vide inheritance mutation No.970 dated 27.6.1942, his land was mutated in the names of his two widows, namely, Mst. Gulai and Mst. Khatoon in equal shares to be held by them till their remarriage or death as the case may be. Mutation is Ext. P2. Mst. Khatoon remarried Usman, a brother of Sultan deceased. Thereupon, vide mutation No.1029 attested on 9.6.1943, her share in the land was mutated to Mst. Gulai, the other surviving widow of Sultan deceased. Mutation is Ext. P3.
Consequently, the entire land once owned by Sultan came to vest in Mst. Gulai as limited owner.
With enforcement of Act V of 1962, limited estate held by Mst. Gulai was terminated and succession to the land opened out to be distributed in accordance with section 5 of the aforesaid Act.
Accordingly, vide mutation No.874 dated 253.1964, Revenue Officer gave l/8th share in the land to two widows of Sultan, 2/3rd to his four daughters and remainder 5/24th to Atta Mohammad, Khan Mohammad Muhammad Amin sons of Jahan one half and the other half to Usman. Both Jahan and Usman Usman {{ Page word missing }} along with judicial nullification of inheritance mutation No. 874 claiming that upon remarriage of Mst. Gulai in 1942, her interest in the land had come to an end and the land in dispute then reverted to the plaintiffs as near collaterals of Sultan under the then prevailing rule of custom and they were, ever since in its possession. Mst. Khatton was not impleaded as party to this suit.
7. Defendants contested and denied the marriage ascribed to Mst. Gulai. It was submitted that upon averments in the plaint, not only the suit was barred by limitation but Mst. Gulai had acquired prescriptive title to the land. Substantial defence, however, was that the land was rightly distributed amongst legal heirs of Sultan.
Pleadings gave rise to as many eight issues. These are:-
1. Whether Mst. Gulai contracted a second marriage with Jahan? If so, when and with what effect?
O.P.
2. Whether the plaintiffs are in possession of the suit property? If not what is its effect? O.P.
3. Whether Mst. Gulai is in adverse possession of the suit property for more than 12 years and the plaintiffs' suit is time barred? O.D.
4. What is the value of suit for purposes of court-i.e and jurisdiction?
O.D.
5. Whether the plaintiffs hav no causa of action in their favour? O.D.
6. Whether the suit property is ancestral qua the plaintiffs and the last male-holder? If not what is its effect? O.P.
7. What are the shares of the parties in the property in dispute? On parties.
8. Relief.
8. Parties gave evidence in support of the issues required to be proved by them. Upon its review, the trial Court found for the plaintiffs and gave them decree for the land in suit, on 6.5.1965. Under issue No. 1, it was held that Mst. Gulai had contracted remarriage with Jahan. Under issue No.2, it was found that plaintiffs were in possession of the land in dispute. In regard to issue No.3, it was held that adverse possession by Mst. Gulai was not proved and the suit was found to have been filed in time. Under issue No.6, it was held that the land in dispute was ancestral qua the plaintiffs and the last male owner. Consequent upon the above conclusions, suit was decreed to the plaintiffs. Against this decision, Mst. Gulai and her two daughters preferred an appeal. Other two daughters were impleaded as respondents to the appeal. Upon relooking into the record, learned District Judge concluded that remarriage by Mst. Gulai with Jahan was not proved beyond reasonable doubt. Consequently, he disagreed with the decision of the trial Court on issue No. 1 and dismissed the suit filed by the plaintiffs. I. Is against this judgment and decree of the learned Judge below that an appeal has been preferred to this Court.
5. On behalf of the appellants, their learned counsel argued that record was misread for holding that remarriage of Mst. Gulai with Jahan was not proved. To the contrary, it was submitted that there was adequate material of which there was no effective rebuttal on record to prove that remarriage as alleged had taken place and limited interests of Mst. Gulai were terminated and the land then reverted to the near surviving collaterals of the deceased.
Respondents though represented but did not appear to oppose. Consequently, appeal was heard ex-parte in their absence.
6. For proper decision of the appeal, facts which are not in dispute need be stated. Those are:- That Sultan deceased was last male owner of the land in dispute; that it was ancestral qua the plaintiffs; that Sultan deceased was governed by custom; that upon his death, his land was mutated to his widows under custom to be enjoyed by them till their life or remarriage; that Mst. Khatoon had no issue, male or female; that Mst. Gulai had four daughters from Sultan; that Usman and Jahan were brothers of Sultan; that plaintiffs Atta Mohammad, Khan Mohammad and Mohammad Amin are sons of Jahan. Real point at issue is about the factum of remarriage of Mst. Khatoon with Usman and Mst. Gulai with Jahan. As observed elsewhere, the trial Court took the view that both the remarriages were proved but in appeal a contrary view prevailed. Upon the above admitted facts, it does not seem necessary to express on the disputed point of remarriage of Mst. Gulai with Jahan and its legal effects, because in terms of section 2-A added by Ordinance XIII of 1983 to the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the course and dimension of the controversy was materially changed. In order to understand its full import, it shall be profitable to reproduce section 2-A. It reads:- "2-A. Succession prior to Act IX of 1948:- Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim:-
(a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat)".
In Abdul Ghafoor and others versus Muhammad Shafi and others-P.L.D 1985 Supreme Court 407 and Muhammad Akram and 26 others versus Noor Ahmad and others-1989 S.C.M.R 755, Supreme Court interpreted section 2-A of 1983 law. In the later pronouncement, it was clearly observed that amended law applied retrospectively from the date of the deceased of the last male owner which in this case would be Sultan. It shall also be advantages to qu Vc an extract from the afore noticed case of Muhammad Akram. It reads:- "Learned counsel for the respondent in reply tried to show that the 1983 enactment would not operate with retrospective effect so as to divert the customary devolution on the death of Nabi Bakhsh in 1947 and thus sought the enforcement of the will made under custom, in its entirety. After he was told that this Court has interpreted the 1983 Law otherwise, and that in the circumstances of the case it would have such retrospective operation so as to apply to the death and inheritance of Nabi Bakhsh, learned counsel remained unable to pursue his line of argument any further".
7. It is manifest from the above extract that through a legal fiction, section 2-A was applied retrospectively from the death of Sultan deceased. It made him an absolute owner as if the land had devolved upon him under Islamic Law. Clear import of this legal fiction would be that the land which was received by Sultan under custom shall be treated to have been taken by him under a different system of law. By this process, the course of succession was diverted from custom to Islamic Law. A full effect was given to the legal fiction created by section 2-A as interpreted by the Supreme Court in case of Abdul Ghafoor and Muhammad Akram. It is not difficult to conclude that the land held by Sultan was rightly distributed by the Revenue Officer in mutation No.874 dated 25.3.1964 Ext. P4. Linder Mahomedan Law, his two widows would get l/8th share, four daughters 2/3rd and the remainder 5/24th shall revert to the collaterals i.e the plaintiffs in the present suit.
Before closing, I must observe that the learned counsel for the appellants when confronted with the above pronouncement of the Supreme Court on section 2-A of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, found it difficult to say anything. Nonetheless, I shall not like to rest my decision upon this circumstance. In view of the afore noticed judgments of the Supreme Court which are on all fours, question of succession to the estate of Sultan deceased shall be deemed to have been governed by Islamic Law and the plaintiffs' share in the land was, therefore, rightly adjudged as 5/24th share. There is no merit in this appeal. It is dismissed but parties are left to bear their own costs.