' Briefly stated facts of the case out of which this Civil Revision has arisen, are that Mitha son of Inayat, caste Sikhani Baloch owned landed property at Chah Sikhaniwala, Tehsil and District Dera Ghazi Khan, who died sometime in the year 1936.
2. The respondent filed a suit seeking a declaration to effect that they are in possession of land measuring 23 Kanals and 3 Marlas out of the estate left by Mitha deceased as his heirs and from the Revenue Record it has transpired that Bahadar predecessor-in-interest of respondents. Nos,1 to 3 has colluded with the Revenue authorities and has got Mutation No,492 dated 16-5-1937 sanctioned in his name excluding the two daughters of the deceased namely Mst. Fatima and Mst.
Sabhul and Mst. Janat Bibi widow of the deceased who is mother of the plaintiff No,2 and, therefore, this mutation is illegal and inoperative againt the rights and interest of the plaintiffs. This suit has been contested by the defendants inter alia on the ground that the plaintiffs and the widow cannot inherit the deceased inasmuch as Mitha deceased and his family were governed by custom in the matters of inheritance and succession, according to which the ladies did not succeed and further that the defendants have acquired right of ownership in the land in question by adverse possession and the suit is barred by time.
3. On the basis of pleadings of the parties, the learned trial Court framed the following issues:
(1) Whether the plaintiffs are owners in possession of the suit land? OPD.
(1-A) Whether parties are governed by custom in matter of inheritance and female heirs were deprived from inheritance? OPP.
(1-B) Whether the suit of the plaintiff is time barred? OPD.
(1-C) Whether defendants Nos,1 to 3 have acquired ownership through adverse possession? OPD.
(1-D) Whether suit has been wrongly valued for purpose of court-fee and jurisdiction? If so, what is its effect? OPD.
(1-E) Whether the suit is not maintainable in its present form? OPD.
(1-F) Relief. ' and after recording of evidence vide judgment and decree dated 13-10-1986 dismissed the suit.
4. Aggrieved by the said judgment and decree, the two appeals were filed namely Appeal No,87/13 of 1986. Learned Additional District Judge partly accepted the two appeals and held that Mutation No,492 sanctioned on 16-5-1937 is illegal as a result whereof Mst. Fatima and Mst. Sabal appellants daughters of Mitha were held entitled to get 16/24th share, Jannat Bibi widow of Mitha 3/24th share and Wahid Bux, Musa, Chahru sons of Bahadar respondents were held entitled to get 5/24th share out of total land measuring 50 Kanals and ten Marlas left by Mitha deceased, from joint Khata. It has been further directed in the decree that respondents Nos,1 to 3 are entitled to retain only ten Kanals and 8 Marlas out of total land measuring 50 Kanals and 10 Marlas and, hence, sale of land exceeding ten Kanals and 8 Marlas by respondents Nos,1 to 3 to respondents Nos,5 to 9 is illegal and the appellants are entitled to recover possession thereof and in these terms suit titled Mst.
Fatima etc. v. Shahru etc. Was decreed vide judgment and decree dated 9-1-1988. Aggrieved by this judgment and decree this civil revision has been filed by the defendants Nos,1 to 3who were the respondents before the learned First Appellate Court.
5. Mr. Moin-ud-Din Ch., Advocate has appeared on behalf of the petitioners whereas Mirza Manzoor Ahmad, Advocate has appeared on behalf of the respondents.
6. In support of this revision petition learned counsel for the petitioners has aruged that the learned First Appellate Court has failed to take into consideration oral evidence of the witnesses produced by the plaintiff respondents themselves who have categorically stated that Mitha and his family followed custom in matters of inheritance and, therefore, the plaintiff being ladies who are the daughters and a widow of the deceased, could not have succeeded the deceased and as such the mutation of inheritance was rightly sanctioned in the year 1937 which has illegally been set aside by the learned first appellate Court. Learned counsel has further argued that even Rawaj-eAam Exh.P-15 shows that Sikhani Tribe to which Mitha deceased belonged followed custom in matters of inheritance and, therefore, the plaintiff had no cause of action to file the suit which was rightly dismissed by the learned trial Court but has illegally been decreed by the learned first appellate Court. Learned counsel has further argued that the suit is barred by time and the petitioners have acquired rights of ownership in the land in question through adverse possession for a period of more than 12 yeaRs, Reliance has been placed by the learned counsel in support of his contention regarding applicability of custom to the case in case of Mst. Izzat v. Allah Ditta (PLD 1981 SC 165).
7. Mirza Manzoor Ahmad learned counsel for the respondents has argued that the learned first appellate Court has recorded the findings of fact on the question of applicability of custom in the case in hand after scanning the whole evidence and taking into consideration the overall facts and circumstances of the case. According to the learned counsel neither material pieces of evidence have been omitted from consideration nor there is any misreading of evidence, Documentary evidence which consists of Rawaj-e-Aam as well as mutation of inheritance which relate to the tribe to which Mitha deceased belonged clearly prove that Shariat law was applicable in this family for the purpose of inheritance of immovable property and admittedly the plaintiffs being daughters and a widow of the deceased had a right to succeed the deceased in accordance with Shariat law and the petitioners illegally got them excluded from inheritance, hence, the learned first appellate Court has rightly set aside the judgment and decree passed by the learned trial Court.
Learned counsel has further argued that as the petitioners and the respondents are co-heirs in the land in question and the Khata is still joint neither the question of limitation nor adverse possession will arise in this case in view of the law laid down in cases of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1. Learned counsel has further argued that even otherwise by virtue of the provisions of Ordinance 13 of 1983, Shariat law of inheritance will apply retrospectively as Mitha was admittedly a Muslim and therefore, it shall be deemed that he was full owner of the property in question and at the time of his death his estate had to be divided in accordance with Shariat law .According to which the plaintiffs are heirs of Mitha in the land in question and, hence automatically they have succeeded the deceased as his Shari heirs and they shall be deemed to be in joint possession of the land in question alongwith respondents Nos,1 to 3. Learned counsel has relied upon cases of Abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 SC 407) and Mst. Farida and 2 others v. Rahmatullah and another PLD 1991 SC 213 and case of Mst. Fazal Nishan and others v. Ghulam Qadir (1992 SCMR 1773).
8. I have considered the arguments addressed by the learned counsel for the parties and have perused the record. Admittedly the parties are Muslims and Mitha deceased was also a Muslim, Baloch by caste who follow Shariat as per Rawaj-e-Aam which is reflected in copy Exh.P-15.
Although there are certain exceptions according to which Sikhani Balochs followed custom, in the family in question it has been proved by the documentary evidence that rule of A inheritance was Shariat. Merely because some witnesses have made a statement that custom was applicable in the tribe for the purpose of inheritance, will not make much difference when the documentary evidence proves otherwise. Learned counsel for the petitioners has not been able to point out any material pieces of evidence which have not been taken into consideration by the learned first appellate Court or any evidence which has been misread. This is a civil revision and a finding of fact recorded by the learned appellate Court cannot be interfered with in exercise of revisional jurisdiction of this Court unless it is a case of misreading or non-reading of evidence even if it is a case of wrong appreciation of evidence. No other legal infirmity has also been pointed out by the learned counsel for the petitioner in the judgment rendered by the learned first appellate Court, hence, I hold that B the fording of the learned first appellate Court to the effect that Mitha deceased followed Shariat in the matters of inheritance is unexceptionable and, hence, no fault can be found with the findings of the learned first appellate Court which is to the effect that inheritance of Mitha deceased has to be decided in accordance with Shariat according to which law the plaintiffs will inherit as his daughters and his widow. Arguments of the learned counsel for the petitioner that the suit is time barred and that the respondents have become owners by adverse possession is also misconceived. Once it is held that the plaintiffs inherited the deceased in accordance with Shariat law, they automatically become co-heirs in the property in question and, therefore, no period of limitation will run against them. The respondents Nos,1 to 3 cannot claim adverse possession, inasmuch as in order to claim an adverse possession, the possession of the claimant has to be illegal and hostile openly to the lawful owneRs, In the case in hand respondents Nos,1 to 3 have never claimed that they were in adverse possession, and held the land hostile to the plaintiffs. They have been claiming the possession of the land in their own right, therefore, the plea of adverse possession cannot be taken by the respondent as held in case of Ghulam All and 2 others v. Mst. Ghulam Sarwar Naqvi (PLDIC 1990 SC 1) referred to supra as under:- "The main argument of the learned counsel in this behalf is that the mutation sanctioned in 1963 against the respondent and her failure to challenge it for a long period would constitute such a conduct which would render the petitioners' possession as adverse to her. In answer to the query that she having become a co-sharer immediately on the death of her father the plea of adverse possession against such a co-sharer would not be available to the petitioners, learned counsel further contended that the mutation which was sanctioned against her interest together with her conduct of not challenging the same for a very long term, would constitute her ouster and that being so the plea of co-sharership in this behalf would stand repelled.
' This controversy now stands finally settled by a recent judgment of this Court. It was held in Haji v.
Khuda Yar (PLD 1987 Supreme Court 453) that a similar adverse entry and non-participation in the profits of the property would not amount to an ouster. While taking note of the earlier case of 'Anwar Muhammad and others v. Sharif Din and others' (1983 SCMR 626) in extenso, it was observed that "wrong mutation conferred no right in property as Revenue Record is maintained only for purposes of ensuring realization of land revenue."
' The suit in the said case was treated as having been "based on title and not for correction of Revenue Record. Accordingly it was not held to be a case of adverse possession and the suit was found to be within limitation.
' In the case of Anwar Muhammad the defendants in an inheritance case of similar nature, having failed in the High Court their plea of adverse possession and limitation was repelled by this Court with the following statement of facts, observations and findings:- "The inheritance of Lakhwera was in dispute between the parties who are descendants from the same common ancestor. The plaintiffs-respondents claimed that as heirs they were entitled to a particular share in this estate of Lakhwera and the mutations attested in 1907 and 1908 with regard to the devolution of this estate were not in accordance with the law. The petitioners resisted the claim not on the ground that the plaintiffs were not heirs of Lakhwera according to Shariat or that their shares were different from those claimed by them but on the ground that a suit for declaration was not competent as they were in possession of the suit land, and that it was hopelessly barred by time. A number of issues were framed and the two Courts dismissed the claim of the plaintiffs-respondents but in second appeal it was held that the plaintiffs-respondents admittedly held that land jointly with the petitioners and that their possession over the land was through their co-sharers and the declaration of the property could be obtained by them and the Revenue Record had to be consequently corrected to reflect it.
' The learned counsel for the petitioners has reiterated the points taken up earlier. His insistence is that in the Bahawalpur State before the enforcement of the Land Revenue Act, as the Settlement Record shows, the settlement with regard to the payment of land revenue was made with those persons who were in cultivating possession over the land excluding altogether others who were out of such possession. It is contended that when I akhwera died the petitioners were in possession of the land and were so recorded excluding the plaintiffs-respondents. This the learned counsel for the petitioners wants to transform into principle of inheritance. Such a claim is based neither on custom nor on Shariat. What law prevails in the matter of preparation of Revenue Record or what practice is followed by the officers cannot be determinative of the devolution of the estate of a deceased person. It appears that the plaintiffs-respondents were the heirs of Lakhwera and entitled to inherit in the same manner as the petitioneRs, The land being joint there was no question of their remaining out of possession or the suit being time-barred. The possession of the one co-sharer is for the benefit of all the other co-sharers and a co-sharer is deemed to be in possession through his other co-shareRs, Simply because the mutations were attested in 1907 or 1908 does not bless the transaction with sanctity. These mutations conferred no right in the property and are at best arrangements made on the fiscal side for ensuring realization of land revenue and ensuring the correctness of the Revenue Record for that purpose."
' It is again to be emphasised that on principle, in Islamic law it is not possible to accept the claims of co-owners/inheritors when they are males and females together, the former seeking a right on the basis of adverse possession and ouster against the latter. The comments and precedents referred to above are only illustrative of a principle; which has to be restated more clearly.
' The main points of the controversy in this behalf get resolved on the touchstone of Islamic law of inheritance. As soon as an owner dies, succession to his property opens. There is no State intervention or clergy's intervention needed for the passing of the title immediately, to the heiRs, Thus it is obvious that a Muslim's estates legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the estate by an intermediary is unknown to Islamic law of inheritance as compared to other systems. Thus there being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction. It is so notwithstanding whether they (the heirs) like it, want it, abhor it, or shun it. It is the public policy of Islamic law. It is only when the property has thus vested in the heirs after the succession opens, that he or she can alienate it in a lawful manner. There is enough comment and case-law on this point which stands accepted.
' Reverting to the vesting of the property in a Muslim heir, as a corollary to what has already been said, it is further to be held that if the State, the Court, the clergy, the executor, the administrator does not intervene, no other body intervenes on any other principle, authority, or relationship-- even of kinship.
' Thus the brother, the father, husband, son or vice versa, does not or cannot intervene as an intermediary. Here we are dealing with the brothers trying though illegally, as if a guardianin-in- heritance so-called, of a sui juris sister, on allegedly "moral" basis, to oust her. It is clearly prohibited by Islam. The females cannot be treated so in our system. And we cannot in the present Constitutional and legal system import or apply any foreign system or so-called common law, or law of nature in preference to our own (See Haji Nizam's case PLD 1976 Lahore 930); as approved in Mohammad Bashir's case (PLD 1982 Supreme Court 139)."
9. Arguments of the learned counsel for the respondents to the effect that by virtue of the provisions of section 2-A of Ordinance 13 of 1983 inheritance in question shall have to be governed by the law has also force, in view of the law laid down in cases of Abdul Ghafoor and others v.
Muhammad Shafi and others (PLD 1985 SC 407), Mst. Farida and 2 others v. Rehmat Ullah and another PLD 1991 SC 213, Mst. Fazal Nishan and others v. Ghulam Qadir (1992 SCMR 773) and Sardar v. Mst. Nehmat Bi and 8 others (1992 SCMR 82). The amendment in the prevelant Shariat Law by Ordinance 13 of 1983 is of declaratory nature and, therefore, is retrospective, hence, it shall be deemed that at the time when Mitha died in the year 1936, he being a Muslim, his inheritance had to be divided amongst his heirs in accordance with Muslim law and not in accordance with custom. Consequently, on this count as well the plaintiffs have inherited the deceased at the time of his death and as such are in joint possession of the land in question as co-heiRs, The judgment and decree passed by the learned first appellate Court, therefore, is unexceptionable even in view of the aforementioned legal position.
10. Resultantly, this civil revision has no force. The same is dismissed with costs throughout.