CH. MUSHTAQ AHMAD KHAN, J.~ Briefly stated facts of the case out of which this civil revision has arisen are that Muhammad Boota respondent No. 1 filed a suit for possession of agricultural land measuring 41 kanals and 6 marlas situate in the revenue estate of Chak No. 271. J.B. Teh. And Distt.
Sheikhupura, after directing the cancellation of mutation dated 30-1-1965 and also for grant of decree for perpetual injunction seeking a restraint order against alienation and interference with his ownership rights. Respondent's father Boora owned agricultural land in village Pachranga, District Jullundur. Sister of Shohab Ud Din predecessor-in-interest of the petitioners. Mst. Umari deceased was married to Boora. Mst. Umari remained issue less and consequently Boora contracted a second marriage with Mst. Jewani who gave birth to Boota respondent. Boora died in the year 1937 and on his death certain land was inherited by Boota and some land was given to Mst. Umari his issue less widow for the purposes of maintenance in accordance with the Zamindara custom prevalent in the tribe. It may be mentioned here that the. Parties are Jat by caste and belong to agriculturist family and hence followed custom. After partition, Mst. Umri got the allotment of land in question against the land which was held by her in lieu of the land inherited by her from her husband for her maintenance, whereas the respondent got allotment of land in lieu of the land which was held by him in Chak No. 472 G.B., Tehsil Samundri, District Faisalabad. Mst.
Umri transferred by way of gift the land in favour of Shahab Din deceased predecessor of the petitioners vide Mutation No. 161 dated 30-10-1965 after her limited estate had terminated by virtue of the provisions of Act V of 1962. Respondent having failed to successfully challenged the mutation on the revenue side, filed the present titled suit, which has been contested by the petitioners inter alia on the grounds of limitation, waiver and that Mst. Umri was the full owner, therefore, the gift in question is valid. On the pleadings of the parties, the learned trial Court framed the following issues:--
(1) Whether the suit is barred by limitation?
(2) Whether the plaintiff is estopped by words and conduct to file the suit?
(3) Whether the plaintiff has waived his right?
(4) Whether the plaintiff has got no cause of action to file this suit?
(5) Whether the plaintiff has got no locus standi to file this suit?
(6) Whether the civiI court has get no jurisdiction to try the suit?
(7) Whether the suit is not correctly valued for the purposes of court-fee and jurisdiction?
(8) Whether the suit is false, frivolous and vexatious? If so, is the defendant entitled to special costs?
(9) Whether the parties were governed by Custom?
(10) Whether the impugned mutation dated 30-10-1965 and the order in appeal dated 12-6-78 and the order in revision dated 7-6-78 are against facts without jurisdiction, illegal and ineffective against the plaintiffs rights?
(11) Whether the gift by Mst. Umri in favour of the defendant is against facts, without jurisdiction, illegal and ineffective against the plaintiff's rights?
(12) Whether the plaintiff is entitled to the relief of possession and injunction sought for?
(13) Relief.
After recording of evidence and hearing arguments, the learned trial Court vide judgment and decree dated 18-5-1981 dismissed the suit holding that the suit is barred by time. Further issues Nos.
2 to 8 were decided in favour of the respondent but regarding issue No. 9, it was held that Mst. Umri was holding the land as a full owner and hence issue Nos, 10, 11 and 12 were also decided in favour of Shahab Din predecessor-in-interest of the present petitioners. On appeal filed by the respondent, learned Addl. District Judge, Faisalabad set aside the judgment and decree passed by the learned trial Court vide judgment and decree dated 18-5-81 and decreed the suit filed by the respondent. This judgment at variance has been challenged by the legal heirs of the defendant Shahab Din deceased.
2. Mr. Jari Ullah Khan Advocate, learned counsel for the petitioners has raised the following contentions:-
(i) that the mutation of gift sanctioned on 30-10-85 has been challenged on 26-6-1979 and therefore the suit is barred by time under sections 2 and 3 of the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 (Act XXV of 1975) according to which provision the suit could have been filed within one year with effect from the date of enforcement of the said Act;
(ii) that it is established on record that Mst. Umri was a full owner but the learned first appellate court has illegally set aside the findings of fact by misreading and non-reading of evidence on the record particularly the circumstance of partition of the khata. Learned counsel has, however, not denied that Mst. Umri got the allotment of land in question in lieu of the land inherited by her in India from her husband who is father of the respondent and who was an agriculturist Jat by caste.
3. As against the above arguments addressed by the learned counsel for the petitioners, Ch. Muhammad Faruq Advocate has argued that it is suit for possession on the basis of title filed by an heir and hence is not barred by time and that the finding of fact recorded by the learned first appellate court with regard to the status of Mst. Umri as being a limited owner are based upon evidence and also is in accord with the latest pronouncement by their Lordships of the Supreme Court of Pakistan. Learned counsel contends that there is absolutely no misreading or non-reading of evidence and hence the judgment of the learned first appellate court is lawful and hence the civil revision is liable to be dismissed.
4. 1 have considered the arguments addressed by both the learned counsel for the parties, have perused the record and have also gone through the evidence recorded in the case. According to document Ex. P.3 shajra nasab Mst. Umri is shown as a widow of Boora deceased as his heir alongwith Boota plaintiff. The vernacular words recorded by Mst. Umri are " Urdu ". This entry has been interpreted as an entry of a limited estate in case of Muhammad Bibi Vs. Ghulam Muhammad etc. (PLJ 1975 Lah. 169). Even otherwise, Boora deceased was Jat and hence belonged to a agriculturist family, hence shall be presumed to have followed custom in matters of inheritance according to which the issue less widow succeeds only for the purpose of maintenance alongwith son of the deceased from another wife and this estate ennures till life or till re-marriage.
Resultantly it has been correctly held by the learned first appellate court that Mst. Umri was a limited estate holder and hence had no lawful authority to alienate the property in question through gift. Mutation of gift dated 30-10-1965 has correctly been declared as void and therefore finding of the learned first appellate court on issue Nos. 9-10-11 and 12 are maintained. So far as the question of limitation is concerned, learned trial Court had dismissed the suit as being barred by time applying Article 14 of the Limitation Act. This is a suit for possession and has to be governed by Article 144 of the Limitation Act. As per law laid down by their lordships of the Supreme Court of Pakistan in cases Abdul Ghafoor and others vs. Muhammad Shaft and others. (PLD 1985 S.C. 407) and Ghulam Ali and 2 others, vs. Mst Ghulam Sarwar Naqvi (PLD 1990 S.C. 1) it shall be presumed that on the termination of limited estate of the widow, the respondent automatically succeeded to the estate as an heir of his father Boora. No period of limitation will start against his right to claim possession unless and until it is proved on record that the defendant-petitioner acquired title by adverse possession. As the petitioners claim title through a mutation of gift, they cannot claim title through adverse possession. Even otherwise, this is not their case in the written statement. Pleas of adverse possession is not available to the petitioners as provisions of section 4 of Act XXV of 1975 which reads as under:- "Bar to claim adverse possession.- Any person who claims to have acquired any right of interest in property whether by alienation, succession or otherwise, originally allotted to a refugee female limited owner, shall have no right to plead adverse possession against any lawful heir of the last male holder."
Consequently it cannot be said that the suit is barred by time and hence the learned first appellate court has correctly reversed the finding on issue No. 1 recorded by the learned trial Court.
Arguments of the learned counsel for the petitioners to the effect that the suit could' have been brought only within year after the enforcement of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 (Act XXV of 1975) is also misconceived inasmuch as the above enactment besides being enabling applies only to those cases where the lis has already decided against a suitor, and the decision referred to in the said enactment shall definitely mean a decision by a forum of general jurisdiction in cases whether the question of title is involved inasmuch as the entries in the mutation do not create any title and need not even be challenged in suits for possession based on title. Hence on this score as well it cannot be said that the suit is barred by time.
Resultantly I find no legal infirmity with the judgment and decree passed by the learned first appellant court. Hence the civil revision is dismissed with costs.