RAJA MUHAMMAD SABIR, J.- Through, this revision petition, the petitioner have challenged the judgment and decree dated 16.3.1993 passed by learned Addl. District Judge R.Y. Khan whereby he accepted the appeal preferred by the respondents against the dismissal of their suit by the learned Civil Judge vide judgment and decree dated 6.7.1996 and while setting aside the same decreed the suit.
2. The revision petition was admitted by this Court for regular hearing on 10-04-1993 and operation of the impugned judgment and decree was suspended, subject to notice to the respondents for 9.5.1993. On 9.5.1993, this Court passed the following order in C.M. No. 1/1993:- "The petitioners shall deposit the share of the respondents which comes to 2/10th of the total income of the land. According to Jhar Pedawar starting from Rabi 1993 in the learned trial Court.
With this condition the petitioners shall remain in possession of the lan|J till the disposal of the case. The needful be done within two months from today".
3. The respondents filed C.P.S.L.A. No. 1072-L/1995 against the above- said order which was disposed of vide order dated 20.9.1995 by the Hon'ble Supreme Court with the direction that, the revision petition shall be heard and decidedly the High Court within one month.
4. Although the period of one month expired on 20.10.1995 but the case was not decided by this Court for one reason or the other mainly on account of adjournments Obtained by the learned counsel for both the parties. The respondents moved C.M. No. 102/1996 for fixation of the case for its hearing on 21.7.1996 whereby I came to know about the direction of the Hon'ble Supreme Court for disposal of the case within one month and fixed the revision petition for hearing on 23.7.1996.
Learned counsel for the petitioners was directed to be served through special messenger for the said date. Pursuant to the above order, the case has been taken up today.
5. Brief facts of the case are that the suit land belonged to Bahadar Shah Latef. Respondent Mst.
Jannat Bibi is his daughter and respondent No. 2 Manzoor Hussain Shah is son of another daughter of Bahadur Shah, namely Mst. Zohran Bibi. Bahadur Shall died in the year 1939 leaving suit land in three revenue estates of (1) Akram Abad (Adam Wali) (2) Kot Kammun Shah and (3) Ali. Pur Machian. Tehsil and District Rahim Yar Khan. He was survived by two daughters. Mst. Jannat Bibi respondent No. 1 and Mst. Zohran (late) mother of Manzoor Hussain Shah-respondent No. 2), Mohib Shah, Hazoori Shah, Faizoo Shah and Ghulam Murtaza Shah, sons, petitioners/defendants. It was stated in the plaint that Bahadur Shah was a pious man, who followed the Shariat Islam and the parties were governed by the Islamic Law in the matter of inheritance throughout. Copy of Wajab- ul-Araz for the year , 1927-28 was also attached with the plaint. It was alleged that petitioners No. 1 to 4 fraudulently without the knowledge of the respondents had got attested the mutation of inheritance and other mutation, challenged in the suit, in their favour depriving the plaintiffs- respondents of their shares of inheritance as legal heirs of Bahadur Shah. It was also averred that Mst. Jannat Bibi and Mst. Zohran mother of Manzoor Hussain were parda-nasheen ladies belonging to Syed family and were deprived of their legal shares of the sui land fraudulently. The defendants had been paying share of produce of the suit land to them and when two years before the institution of the suit they stopped paying the same, they felt worry and checked the revenue record and come to know about the fraud committed by the petitioners depriving them from their shares of inheritance of the suit land. Accordingly they sought a declaratory decree.
6. The defendant-petitioners contested the suit by filing written statement. They denied the averments made in the plaint. On the divergent pleadings of the parties, following issues were framed by the leamed trial Court:- ISSUES
(1) Whether the plaintiffs are owners in possession of the suit land as described in the headnote of the plaint? If so, are the mutations No. 803, dated 6.2.39, No. 245, dated 6.2.39, and No. 105, dated 712.39 are illegal, against law and facts, based on fraud, and misrepresentation and are void qua their rights as alleged in the plaint? OPP.
(2) Whether the suit is clearly barred by time? OPD.
(3) Whether the suit is non-maintainable in its present form? OPD.
(4) Whether the plaintiffs are estopped by their word and conduct to bring this suit as alleged in preliminary objection No. 3 of the written statement? OPD.
(5) Whether the defendants have matured their title on the basis of adverse possession for more than l2 years? OPD.
(6) Whether the suit has not been correctly valued for the purpose of Court-fee and jurisdiction? If so, what is correct valuation? OPD.
(7) Whether the. Family of the parties was governed by Customary law of inheritance and not by Islamic Law, If so, what was the custom and its effect? OPD.
(8) Whether the defendants transferred 232 kanal of land to the plaintiffs by way of tamleek as alleged in the para No. 4 of written statement? If so, to what effect? OPD.
(9) Whether the suit is barred by law? OPD.
(10) Whether the suit is not maintainable to the extent of plaintiff No. 2 with reference to preliminary objection No. 7 of the written statement? OPD.
(11) Relief.
7. Leamed Civil Judge, after conclusion of the trial dismissed the suit vide judgement and decree dated 6.7.1991. The appeal filed by the respondents was accepted by the leamed Additional District Judge Rahim Yar Khan vide impugned judgment and decree dated 16.3.1993.
8. Leamed counsel for the petitioners contends that the leamed Additional District Judge has not appraised the evidence in its true perspective inasmuch as the evidence has been misread and the conclusion drawn by him is not warranted by evidence on the record. It is further submitted that the suit was hopelessly time- barred and the appellate Court was not justified in treating it within limitation. It is also submitted by the leamed counsel for the petitioner that Wajabul Araz has been wrongly relied upon, by the Appellate Court and presumption of truth is not attached with such a document. He further submits that the parties were governed by the custom and the inheritance could not devolve upon the respondents in accordance with the Muslim Personal law.
9. Leamed counsel for the respondents on the other hand submits that the revision petition itself is not maintainable as all the documents filed along with the plaint & written statement as well as exhibits have not been attached with the revision petition and as such mandatory requirement contemplated by section 115(1) of Civil Procedure Code has not been fulfilled. In this regard leamed counsel relies upon Bashir Ahmad v. Abdul Wahid (P.L.D. 1995 Lahore 98), Muhammad Hussain etc. v. Muhammad Hussain etc. (N.L.R. 1988 Civil 245),' Aziz and another v. Yousuf (PLD 1988 Lahore 625), Muhammad Rafiq v. Salim Ahmad (1994 CLC 1683).
10. On merits leamed counsel for the respondents submits that the burdon of proof of issue No. 7 regarding application of customary law to the inheritance of the parties lied on defendants, who failed to discharge the same and as such the appellate Court was justified in relying upon Wajabul Araz produced by the respondents of the three relevant Villages. In support of his contention leamed counsel has relied upon Sher Muhammad Khan v. Dost Muhammad Khan and others (1925 Lahore 231) Karam Bakhsh and another v. Mst. Mehtab Bibi and another (AIR 1939 Lahore 93), Sajawal Shah and another v. Syed Rahim Shah and another (PLD 1975 Supreme Court 325) and Fazal Dad v. Mst. Noor Nishan and others (1969 S.C.M.R. 607). Leamed counsel maintains that it was for the defendants-petitioners to prove which particular custom governs the inheritance of the father of the parties as they raised the plea that they were governed by the custom but they failed to produce any material evidence on the subject. In this behalf he relies upon Mst. Qaiser Khatoon v. Moulvi Abdul Khaliq and another (PLD 1971 S.C. 334).
11. Leamed counsel for the respondents further submits that respondent No. 1 and mother of respondent No. 2 being Pardanasheen Syed ladies, physical possession of the brothers would be deemed to be possession of the sisters as well. It was a joint property which has devolved upon them from Bahadur Shah, their father, therefore, they, were entitled to inherit the same in accordance with the Islamic law. Leamed counsel further argues that the suit was well within time as the final attack on the rights of the respondents was made two years prior to the institution of the suit and throughout the period prior thereto produce of the land was regularly given to the respondents by the petitioners. He relies upon Ghulam Ali and two others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 S.C. 1) and Shamasud Din v. Mst. Jewan etc. N.L.R. 1984 Civil 529). Leamed counsel also submits that the evidence produced on the record was properly appreciated by the leamed Appellate Court. The only documents which have been placed on record while filing the present petition are, the oral statements of the witnesses who were examined^ as PWs. 1 to 3. DW1 to DW-7, copy of the order sheet from 22.4.1991 to 6.7.1991, Annexure G, copy of Ex.D-145, Annexure H (Ex.D-1), Annexure J((Ex. P-2), Annex. K(Ex.P-3) & Annexure L(Ex.P-5). No other document or the evidence has been attached with the revision petition by the petitioners, therefore, this Court can only go into the documents attached with the revision petition and the perusal thereof, according to the leamed counsel, leads to the same conclusion which has been arrived at by the lower Appellate Court.
Leamed counsel for the respondents further contends that no other document, although the record of the case has been received, can be gone into for the purpose of decision of this revision petition.
12. I have heard the leamed counsel for the parties at considerable length and gone through the record placed by the parties on the file of Trial Court as well as the authorities referred by them.
13. The contention of the leamed counsel for the petitioners regarding misreading and non- appraisal of evidence on the record by lower Appellate Court is misconceived. The relevant record and evidence has been properly considered. I have myself gone through the documentary evidence placed by the parties on the record. No doubt petitioners got exhibited 143 documents on the record but material documents were gone into and the same were referred in the judgment and construed properly. Exh. D.I, Exh. D-3-and Exh. 5 coupled with Wajihul Araz produced as Exh. P-1, Exh. P-4 and Exh. P-6 clearly establishes that the females inherited the property as sharers and the Muslim Personal Law was applicable. Inheritance by females in the above referred exhibits produced by the petitioners show that the female inherited the property and same is reflected in the above-said exhibits placed on the record by the petitioners themselves. Respondents/plaintiffs established on the record that they were governed by the Muslim Personal Law and not by customs. On the basis of the evidence discussed. Above the submissions of the learned counsel for the petitioners are repelled.
14. The next submission of the learned counsel that Wajihul Araz has been wrongly relied upon by the learned Additional District Judge is without any force. Respondents/plaintiffs have produced the Wajihul Araz relating to the year 1927-28 of all the. Three estates where the property in dispute was situated. Wajihul araz carries infect , the evidentiary value for determining traditions/customs of the area prevalent at a particular time in a particular tribe and area. The said Wajihul araz related to the period about 11 years prior to the attestation of mutation and' for the purpose of determining whether the custom or the Personal Law governed the parties regarding succession and inheritance was specifically considered and the learned appellate Court has rightly relied upon wajibul araz. In the light of the evidence of the respondents and the documents exhibited by the petitioners it can safely be concluded that Personal Islamic Law was applicable in all the three estates of the deceased Bahadur Shah and parties were governed by it. The conclusion of the lower appellate Court is not open to any exception. Leamed counsel for the petitioners relied upon the following reported judgments on this point. Ghulam Rasool and 5 others v. Allah Bachaya and 17 others (1985 SCMR 416), Ghulam Haider v. Hafiz Allah Bakhsh (1985 SCMR 1218) and Wahid Bakhsh and another through Legal Heirs v. Ghulam Muhammad through Legal Heirs (PLD 1990 Lahore 193). I have gone through the same. None of them is applicable to the facts and proposition in hand of the present case.
15. The contention of the learned counsel that the parties were governed by custom and not by Muslim Personal Law is devoid of any force. As stated earlier petitioners have not established the particular custom governing their inheritance and succession whereas respondents have proved that they were governed by Muslim Personal Law. The judgments in support of applicability of custom to the petitioners relied upon by leamed counsel are not relevant in the present context as the petitioners have not proved that they were regulated by-custom and not by proved that they were regulated by custom and not by Muslim Personal Law. Introduction of the amendment of Section 2-A of Muslim Personal Law (Shariat). Application Act, rj962 cannot be lost sight at this juncture wherein, the law of succession of the, Muslims has been declared applicable to all the cases of Muslims inheritance retrospectively. Section 2-A. Was examined by. The Supreme Court in the case reported as Abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 Supreme Court 407). Section 2-A provides as under:- "2-A. 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 Muslim-
(a) he shall be deemed; to have become, upon such acquisition, an Absolute owner of such land, as if such land had developed on him under the Muslim Personal Law. (Shariat);
(b) any decree, judgment or order of any Court affirming the right of any reversioner Under Custom or usage, to call in question such an/alienation or directing delivery of possession of agricultural land on such basis shall be void inexecutable and of no legal effect not the extent it is contrary to the Muslim Persona Law (Shariat) Act;
(c) all suits or other proceedings of such a nature pending in any Court ant) all execution proceedings seeking possession of land under such decree shall abate forthwith: 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".
While interpreting the impact of the . Said provision it was held by the Supreme Court that it is applicable to the females as well and it was given retrospective effect. The relevant portion of the judgment of the Supreme Court to this effect is reproduced hereunder:-
(o) It is correct that they newly enacted section 2-A does not make any specific and direct provision about a female heir acquiring and holding land as absolute owner, limited owner or maintenance holder but for the time being in so far as these present cases are concerned, even if they are treated as illustrative of various disputes, which would come up for resolution, this omission does not present any difficulty nor it appears to be intended so as to exclude this bench of the litigation from the purview of the existing Act (V) of 1962 read with the newly-added provision to it, namely section 2-A, when the Act is read as a whole as amended by the provisions contained in section 3, 4 and 5 of the Act of 1962. Section 3 provides that the limited estates held by Muslim females under customary law stood terminated but this termination shall not affect the estates which were kept alive and governed by the laws repealed under section notwithstanding the said repeal. Section 5 again inter alia deals specifically with the females whose estates were terminated under section 3. It provides that the estate concerned 'shall devolve on such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner.... And if any such he has died in the meanwhile his share shall- devolve in accordance with Shariat on such persons as would succeed him if he had died immediately after the termination of the life estate .... Provided that the share to which a Muslim female holding limited estate under the Muslim Personal Law (Shariat) upon death of the last full owner, shall devolve on her'. Read in this context, section 3 and 5 would now he a supplement to the newly-added section 2-A and be treated as its various extension.
(p) Thus, read two seeming conflicts/omissions would be removed:-
(i) the omission about the female heir would become understandable, because to an extent it already stood supplied by sections 3 and 5 and the remaining gap would be filled by taking into account all the heirs, male or female, of the 'male heir', specified in section 2-A; and
(ii) Section 6 would now operate in one way, as an interpretation clause for sections 3, 4 and 5 as well as for 2-A when all read together. And accordingly they shall have retrospective effect.
(q) It is well-known that the provisions regarding females were interpreted by the Superior Courts as implying that notwithstanding the termination of the limited interest in 1962 the previous holding of the estate and interest was subject to the restrictions imposed by the customary law if the origin of the estate or interest was in the customary law. Accordingly the alienations made by them whether in possession of the land as a limited estate or in lieu of maintenance were subject to the challenge by the reversioners of the last full owner. The 1962 Act when terminating the limited interests did not make any major change in this behalf. Not only this the judgments rendered by the Supreme Court in its Shariat Appellate Bench also kept alive the law relating to the challenge to the interest; so as to keep intact and preserved the estate for the benefit of the Muslim (Shariat)
Law heirs of the last full owner. Section 2-A has to be interpreted in the foregoing entire context has to be read and re-conciled with section 3 and 5 in so far as the females are concerned; as also, the pre-existing section 2 in so far as the general change in the law was concerned.
(r) The position that develops, thus is that a mala heir who acquired agricultural land under custom from a Muslim prior to 15th March, 1948, is held to have inherited under the Muslim (Shariat)
Law. His heirs, after his death meanwhile, would be discovered in accordance with the Muslim Law.
They could be male and female heirs. But if a female deriving the limited interest from any such ' male heir' (now under section 2-A, deemed to be an absolute owner under Muslim Law since the time of his acquisition) would not be able to keep any land in excess of her share as an heir under the Muslim Law. She will act as a conduit so as to pass the regaining land to the other heirs of such a 'male heirs' and so on how low-so-ever, under the Muslim (Shariat) Law of Inheritance. This by and large is what has been provided in and emerges out of the combined reading of sections 3, 4 and 5 now ye ad with section 2-A. Thus, read in this context, the omission in-section 2- A of a female holding an interest in land, is of not much significance".
16. In similar circumstances it was held in the case reported as Ghulam All am1 2 others v. Mst.
Ghulam Sarwar Naqvi (PLD 1990 S.C. 1) that:- "Adverse entry and non-participation in the profits of the property would not amount to an ouster of co-sharer. Wrong mutation confers no right in property as revenue record is maintained only for purposes of ensuring realisation of land revenue-Co-sharers/co-owners are not obliged to file a suit to seek a declaration to the effect that a mutation had wrongly been sanctioned. The suit filed due to denial of rights of the co-sharer, for declaration would be within time and the Revenue Authorities on success of such suit would be required by law to correct the wrong mutation".
It was further observed in the above referred judgment that:- "Inheritance. Co-sharer.. Rights of females... Heir in possession has to be considered to be in constructive possession of the property on behalf of the heirs in spite of his exclusive possession.
Possession of the brothers thus would be taken to be the possession of their sisters, unless there is an express repudiation of the claims of the sisters by the brothers".
It was also held that:- "Mere omission to pay profits does not in itself constitute ouster and still less so, when something though not the whole is paid- Partition among the males without reference to the female heirs does not mean much in shape of ousting the females from their rights".
17. While dealing with inheritance, right of females and scope under Muhammadan law, it was also held in the above-mentioned judgment that:- " Scope of rights of inheritance of females is so wide and their thrust so strong that it is the duty of the Courts to protect and enforce them, even if the legislative action for this purpose of protection in accordance with Islamic Jurisprudence is yet to take its own time".
18. Now coming to the question of limitation raised by the leamed counsel for the petitioners that the mutations No. 303 dated 6.2.39 of village Akramabad, No. 245 dated 6.2.39 of village Kot Kammun arid No, 105 dated 7.2.39 of village Alipur Machian were attested in 1939 while the suit was filed in 1985 which was hopelessly time barred. The contention of the learned counsel is of no substance. The mutation itself does not confer any title. Cause of action arose in favour of respondent two years prior to filing of suit when payment of produce was stopped to them by petitioners. That being the first attack on their rights suit of the respondents while counting time from that date is well within time and lower Appellate Court was justified in law in treating it so.
19. The above-mentioned judgments fully covers the case of the respondents and as such the suit filed by them by no stretch o imagination can be held to be time barred. The Hon'ble Supreme Court has taken note of the rights of the females and the status of the brothers will be deemed to be that of the sisters also. The relationship between the. Parties is not disputed. Admittedly petitioners are brothers respondents Jannat Bibi and maternal uncle of Manzoor Hussain Shah, respondent No. 2, successor-in-interest of Mst. Zohran Bibi, late sister of the petitioners.
20. The revision petition has not been properly filed by the petitioners in compliance with the provisions of section 115(1) which provide as under:- " Section 115. Revision (1)............. ....... Provided that where a person makes an application under this sub-section, he shall, in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court and the High Court shall except for reasons to be recorded dispose of such application without calling for the record of the subordinate Court "
Above said provision of law has been considered by the Superior Courts in the following judgments.
In Bashir Ahmad- v. Abdul Wahid (PLD 1995 Lahore 98) it was held that .Petitioner was under a legal obligation to support his petition with pleadings, documents and order of subordinate Court as provided in Section 115(1) C.P.C. The revision petition in the captioned ;case was not accompanied by the entire record and consequently the same was found to be not in accordance with the above mandatory provisions of law and was dismissed.
21. Similarly, in another case reported as Aziz and another v,. Yousaf (PLD v 1988 Lahore 625) while interpreting Section 115(1) C-P C. It was observed that non-production of either a copy of evidence led in the suit or of the documents 'exhibited there to meet the requirements of Section 115(1) C.P.C, rendered the petition frivolous depreciated having not been filed in accordance with the said .Provision. It was observed that:- "Actually, in the absence of these copies not only the revision petition itself becomes liable to be treated as imperfectly constituted but also there does not remain available any conceivable argument capable of being raised on the remaining record for inviting interference in exercise of revisional-jurisdiction. It is further enjoined by the said proviso that, except for die reasons to be recorded, the High Court shall dispose of the revision petition without sending for the record of the- Court below and there is no reason shown for summoning the record of the trial Court. Hence, the only disposal of such revision petition that can be made on the basis of the present record .Cannot be anywise else than dismissing it as unsubstantiated".
22. In the third judgment reported as Muhammad Hussain etc. v. Muhammad Hussain etc. (NLR 1988 Civil 245), it was held that revision petition which is not accompanied by certified copy of evidence led .In suit or of various documents relied upon by lower Courts but is supported by private reproduction filed under counsel's signatures cannot be taken to have been properly constituted. In such a revision petition it has also to be, held that there is no material available on record to sustain solitary contention desired to be raised with regard to alleged misreading and non-reading of record by Courts below.
23. In the above case an application seeking dispensation for filing certified copies in revision petition was also made but the High Court refused to permit the uncertified copies to form part of the revision petition, it was observed that:- "It cannot be urged with any amount of reasonableness that since private reproductions of judicial record have been furnished, their certified copies may be dispensed with from being produced".
But in the present case even no application for dispensation of certified copies or for summoning the record of the trial Court was filed along with the revision petition.
24. Yet in another case, Muhammad Rafiq v. Salim Ahmad and others (1994 C.L.C. 1683) while examining the scope of section 115' C.P.C, it was held that the requirement of section 115 C.P.C, is that the petitioner shall furnish in support of the^petition copies of pleadings, documents and orders of the Courts below. If any material is withheld, the Court Would be justified to presume that had these documents been produced, the same would have gone against the petitioner.
25. In the light of the judgments, referred to above, it can safely be held that failure on the part of the petitioners to comply with the certified copies of pleadings, documents ..And evidence with the revision petition is clear violation of mandatory provision of law. No reason or justification whatsoever has been furnished to justify the non-compliance of said provisions. The revision- petition can only be disposed of on the basis of the record placed on the file of the revision petition: aid record is neither complete nor sufficient to appreciate the contentions -r raised by the learned counsel for the petitioners. The afore-mentioned documents -placed on the record by the petitioners did not substantiate the contention of the learned counsel that learned Addl. District Judge has either misread or ignored the evidence placed on the record. In the light of the judgments referred to above, the petitioners having failed, to comply with the mandatory provision of section 115(1) CPC the revision petition is not maintainable and the same is not substantiated by the incomplete copies of documents placed on the record of trial Court.
26. That since the record of the trial Court is available which has come in pursuance of some letter issued by the office of this Court, I have considered that also. The oral evidence produced by the petitioners and the respondents is not of much substance. Copies of wajib-ul-araz produced by the respondents Ex.P-1 relating to the year 1927-28 of Village Mauza Kammun Shah, Ex.P-4 pertaining to Mauza Akram Abad and Ex.P-6 of Village Mauza Ali Pur Machian show that the parties were governed by Muslim Shariat law in the matter of inheritance. On the other hand the petitioners, who were to prove that they were subject to custom, have not produced any cogent documentary evidence to discharge the burdon of proof on the relevant issue. The oral evidence of the petitioners stands rebutted by the documentary evidence produced by the respondents in the shape of Ex.P-1, P-4 and P-6. The petitioners have failed to establish on the record what particular customs in relation to their inheritance was applicable. While interpreting section 5 of the Punjab Laws Act (IV of 1872), it was observed by a Full Bench of the Lahore Chief Court in case of Daya Ram v. Sohel Singh and others (1906 P.R. 390) that: "It has some time apparently been assumed that because in section 5 of the Punjab Laws Act, clause (a) which deals with custom comes first and clause (b) which treats of personal law, comes second, that some peculiar preference for custom as opposed to personal law is indicated.
This appears to me to be quite fallacious. In all cases, it appears to me under this Act, it lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed and not by personal law and further to prove that the particular custom is. There is no presumption created by the clause in favour of custom; on the contrary, it is Only when the custom is established that it is to be the rule of decision. The Legislature did not show itself enamoured of custom rather than law nor does it show any tendency to extend the 'principles' of custom to any matter to which a rule of custom is not clearly proved to apply. It is not the spirit of Customary law, nor any theory of custom or deduction from other customs which is to be a rule of decision but only any custom applicable to the parties concerned which is not.......... and it, therefore, appears to me clear that when either party to a suit sets up 'custom' as a rule of decision, it lies upon him to prove the custom which he seeks to apply; if he fails to do so clause (b) of section 5 of the Laws Act applies and the rule of decision must be the personal law of the parties subject to the other provisions of the clause...."
This principle was held to be not departed from by their lordships of the Supreme Court in Mst.
Qaiser Khatoon and l2 others v. Moulvi Abdul Khaliq and another (PLD 1971 S.C. 334) which is fully applicable to the present case, The case of the petitioners with regard to particular custom governing their succession and inheritance has not been proved by them while the evidence led by the respondents- plaintiffs is sufficient to believe that the parties were governed by the Muslim personal law as incorporated in Wajihul Araz for the year 1927-28 (Ex.P-1, Exh. P- 4 and Exh. P-6) mentioned above.
27. The above-referred judgment clinch the matter between the parties. Petitioners cannot deprive the respondents from inheritance of Bahadur Shah under any pretext. Shares and relationships are admitted. Impugned judgment and decree are perfectly in accordance with evidence and law calling for no interference.
28. For the reasons stated above revision petition is dismissed without any order as to costs.