' SAJJAD ALI SHAH, J.--This appeal with leave of the Court is directed against the judgment dated 5-3-1989 of Lahore High Court at Lahore, whereby learned Judge in chamber has dismissed Civil Revision No, 767/D of 1988 filed by the appellants herein.
2. Briefly stated the relevant facts giving rise to this appeal are that one Nabi Bux lived in India having two sons namely; Hashim and Allah Ditta. Hashim owned some agricultural land and died issueless having been survived by his widow Mst Jantan, who was transferred agricultural land as limited owner according to Zamindara custom. After partition she migrated to Pakistan and filed claim upon which she was allotted land in Mouza Baghri and Monza Kaki Nau Chak Awal.
3. Suit No, 804 of 1979 was filed in the Court of Civil Judge, First Class, Shorkot by Hashmat Ali and Mst. Sharifan, who are son and daughter respectively of Allah Ditta, brother of Hashim, who was husband of Mst. Jantan. According to the plaintiffs in the suit Mst. Jantan transferred land through Mutation No, 930 attested on 11-4-1972 in Mouza Baghri Tehsil Shorkot, in favour of Fazal and Waryam, sons of Abdullah, who were impleaded in the suit as defendants Nos. 3 and 4. Land in Mouza Kaki Nau was transferred in favour of Khushi Muhammad (defendant No,2), brother of Mst.
Jantan and Allah Ditta through succession Mutation No, 18 sanctioned on 28-9-1959 with 3/4th shares in favour of Allah Ditta as brother of Hashim and 1/4th share in favour of Khushi Muhammad as brother of Mst. Jantan. Both Khushi Muhammad and Allah Ditta sold 18 Kanals to Haq Nawaz, Sikandar and Dalmir, sons of Ahmad, vide Mutation No, 1971 attested on 7-2-1967. Subsequently, on the plea that Mst Jantan was alive, mutations of inheritance Nos.930 and 18 were cancelled and restored in the name of Mst. Jantan by two orders passed by the Additional Commissioner Revenue, Sargodha on 28-11-1970 and 25-11-1976. Suit No, 620 of 1975 was filed by Haq Nawaz and his brothers against Mst. Jantan for declaration and permanent injunction in the Civil Court which was decreed against which appeal was filed and during the pendency of that appeal Suit No, 804 of 1979 was filed by Hashmat Al and Mst. Sharifan against Mst. Jantan, Khushi Muhammad, Fazal, Waryam, Haq Nawaz, Sikandar and Dahnir, who have been impleaded respectively as defendants Nos. 1 to 7.
4. Plaintiffs in Suit No, 804 of 1979 have challenged mutation in favour of Mst. Jantan and transfer in favour of Fazal and Waryam on the grounds that according to Muslim Personal Law (Shariat)
Application Act V of 1962, they have become owners of 3/4th share of the land left by deceased Hashim as son and daughter of his brother. They also claimed that they were not heard at the time when Mutation No, 18 was revised. Plea was taken in the written statement that similar suit was filed by plaintiffs in the Court of Senior Civil Judge, Jhang against Sher Muhammad and Khushi Muhammad which was withdrawn by plaintiffs on 29-10-1971 with permission to file fresh one subject to the payment of cost of Rs,
100. Fazal and Waryam took up plea in the written statement that they had purchased suit land with bona fide intention for value after checking the Revenue Record. Haq Nawaz and brothers in the written statement admitted claim of plaintiffs. As many as 14 issues were framed with Issue No, 10 to the effect whether suit was within time. Both parties produced evidence and finally suit was decreed in favour of plaintiffs. It would be pertinent to point out that on the issue of limitation, trial Court held that requirement of section 3 of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 is that suit has to be filed within one year from 31-3-1975 which is the date of enforcement of the Act but the suit having been filed on 15-12-1979 is not time-barred for the reason that this suit is continuation of the civil suit titled as Hashmat All v. Sher Muhammad filed on 27-7-1971 which was withdrawn with permission to file fresh one. Learned Additional District Judge, Jhang, after hearing appeal, allowed it on the short ground that suit was barred by limitation as it was not filed within one year of promulgation of the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act of 1975. He did not go into the merits of the suit on other issues. High Court dismissed revision petition maintaining decision of the appellate Court to the effect that suit was time-barred.
5. We have heard learned counsel appearing for the parties in sufficient detail. Before we go into the question of limitation, it would be pertinent to state very briefly background history of life- estate share of Muslim widow. Issueless Muslim widow having inherited life-estate under custom in India from the property of her husband, when migrated to Pakistan, was allotted evacuee land with life-interest with absolute right of ownership but restricted right* of disposition and on her death, property devolved on her legal heirs and not of her husband. In 1962 Muslim Personal Law (Shariat)
Application Act, V of 1962 was enacted, section 5 of which envisaged termination of limited estate held under Customary Law and allowed 1/4th for widow and 3/4th for other heirs of husband. In the case of Additional Settlement Commissioner, Sargodha v. Muhammad Shafi and others (PLD 1971 SC 791), it was held that evacuee property allotted to Muslim widow in lieu of limited estate left in India would, on her death, devolve on her heirs of last male owner of property left in India and not on heirs. Full Bench decision of the High Court to the contrary reported as Sher Muhammad v.
Additional Settlement and Rehabilitation Commissioner (PLD 1968 Lah. 234) and decision in the case of All Muhammad v. Mahmoodul Hassan (PLD 1968 Lah. 329) were overruled.
6. Meanwhile difficulty had arisen as refugee females from India, who were limited owners were allotted evacuee property in Punjab and treated as full owners of property allotted to them. After decision of the Supreme Court, legislature intending to extend benefit of the decision to the persons aggrieved by the said erroneous view, promulgated Punjab Muslim Personal Law (Shariat)
Application (Removal of Difficulties) Act, XXV of 1975, and sections 2 and 3 thereof are reproduced as under:-- "2. Removal of difficulties.- --Notwithstanding anything to the contrary contained in any other law for the time being in force, all decrees, judgments or orders passed in any suit, appeal or other proceedings by any Court or other authority treating a refugee female allottee as full owner of the property allotted to her in lieu of the property abandoned by her in India or to which she was otherwise entitled; as a limited owner, shall be of no legal effect and such suit, appeal or other proceedings shall, on an application made by an affected person within one year of the commencement of this Act, be decided afresh.
3. Permission to file fresh suits, etc.---Any person aggrieved by an alienation or an order of succession with regard to any property allotted to a refugee female in lieu of the property abandoned by her in India or to which she was otherwise entitled as a limited owner under custom, and who could not challenge such alienation or succession, may call it in question in a Court or before any other authority within one year of the commencement of this Act."
7. If sections 2 and 3 reproduced above are read together, then it would appear that the intention of legislature was to divide affected persons into two categories. In the first category are persons, who, aggrieved on account of erroneous view, had litigated and some judgments and orders were passed in suits, appeals or other proceedings. Such judgments and orders treating refugee females as full owners were declared to be of no legal effect and such affected persons were given right of fresh hearing. The other category of affected persons is covered by section 3 which provides for permission to file fresh suits. This permission is given to persons, who could not challenge such alienation or succession for some reason. Here legislature has not used word "did" but on purpose has used word "could" to denote the sense that such persons who were unable to challenge alienation for variety of reasons and legal objections including the one that suit was barred by limitation, were given opportunity to file fresh suits.
8. In the instant case appellants/plaintiffs in the suit are covered by first category as in view of the trial Court last date available for filing suit was 31-3-1976 (within one year of the Act XXV of 1975) and filing of the suit on 5-12-1979 was condoned on the ground that plaintiffs had filed earlier suit, which was withdrawn with permission to file fresh suit, hence continuation was there. Copy of previous suit was available on the record and trial Court came to the conclusion that there was continuation of proceedings and thus second suit was not time-barred. First Appellate Court has completely ignored this aspect of the case and has simply held that time was allowed up to 31-3- 1976 and suit was filed on 5-12-1979, it was time-barred without adverting to first suit.
9. Some other very important factors in this case are also to be considered and not lost sight of.
Appellants are son and daughter of Allah Ditta brother of Hashim, who was husband of Mst. Jantan.
Hashim was last full male owner of the property left in India in which Mst. Jantan inherited life- estate as issueless widow. After enforcement of Muslim Personal Law (Shariat) Application Act (V of 1962) as amended by Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance (IX of 1972) limited estate under customary law had terminated and 1/4th passed to widow and 3/4th to heirs of husband and it was provided specifically that life-estate terminated on 31-12-1962.
It was held in the case of Muhammad Yakoob v. Member Board of Revenue, Lahore (PLD 1973 SC 304) that property allotted to a female in lieu of her limited estate left in India on termination devolved upon persons, who would have succeeded, had Muslim Personal Law (Shariat)
Application Act of 1962 applied at the demise of last full owner. In such circumstances appellants became co-owners and co-sharers with Mst. Jantan in the suit property to the extent of 3/4th share. Possession of Mst. Jantan of the suit property is to be considered as possession on behalf of all co-sharers. It is held in the case of Ghulam All and others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) by this Court that co-sharers are not obliged to file suit for declaration against adverse mutation. Suit filed for denial of right would be within time and on success wrong mutation would be corrected by Revenue authorities.
10. Haq Nawaz, Sikandar and Dalmir challenged Mutation No, 2190 by way of Civil Suit No 620 of 1975 inter alia on the ground that Mst. Jantan had remarried in 1951 and her limited estate had come to an end and Allah Ditta (father of appellants) had inherited 3/4th share, hence sale of land in their favour to the extent of share of Allah Ditta was valid. This plea was accepted and the suit was decreed. Appeal filed by Mst. Jantan was dismissed by Additional District Judge, Jhang on 12-2- 1985 (see page 16 of paper-book). If no other steps are taken to challenge this finding in other competent forums then it would be presumed that this finding has attained finality and is to be so considered in pesent proceedings. It is observed by this Court in the case of Muhammad Aslam and another v. Abdul Hameed and others (1991 SCMR 552), that evacuee laws cannot be interpreted to allow limited owners as full owners and such a situation is to be remedied which is accomplished by remedial statute namely Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975.
11. So far question of limitation is concerned Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 is special enactment with in-built provision for limitation of one year from the date of commencement of the Act, which is 31-3-1975, hence this limitation will apply and not general Limitation Act.
12. For the facts and reasons mentioned above, we set aside impugned judgments of High Court and First Appellate Court and remand this case to the Appellate Court for decision of appeal on merits. It would be satisfactory if appeal is disposed of within three months from the date of announcement of this judgment. Appeal is allowed with no order as to costs.