' This appeal is directed against the judgment and decree passed by the District Judge, Kotli, on October 20, 1984, whereby an appeal filed against the order of Sub-Judge, Kotli, was dismissed.
2. The facts giving rise to the present appeal are that the plaintiff-appellant filed a declaratory suit claiming herself to be the sole heir entitled to the estate left by her father, in respect of the suit land.
Mutation No,1050 attested in favour of the respondents was challenged as being illegal, ineffective and inoperative against the plaintiff-appellant's rights. The said mutation was also challenged on the ground that she was married in 1955, after the enforcement of the Shariat Act. The suit was resisted by the opposite side. Issues arising out of the pleadings of the parties were framed. The trial Court after receiving the evidence from the respective parties and hearing them, dismissed the plaintiff's suit. An appeal filed with the District Judge, also met the same fate. A further appeal was preferred before this Court which was accepted and the plaintiff-appellant was held entitled to one-half of the estate left by her deceased father. Feeling aggrieved, by the aforesaid order, the defendant-respondents filed an appeal before the Supreme Court of Azad Jammu and Kashmir which was accepted and the case was remanded to this Court, after setting aside its judgment, to decide it afresh, keeping in view the point of limitation.
3. Kh. Abdul Basit, the learned counsel for the appellant raised the following points in support of the appeal:-- "(i) That both the Courts below fell in error in deciding the point in issue between the parties. It was explained that the trial Court as well as the first Appellate Court did not apply their mind to the controversy involved between the parties, therefore, the judgments are not maintainable;
(ii) That the defendant-respondents did not raise any objection in their written statement with regard to the limitation, as such, no issue was framed on the subject. Therefore, the observation made with regard to the suit having been filed after the prescribed limitation, by the District Judge, is not maintainable;
(iii) That the plaintiff-appellant is admittedly the daughter of deceased Gamoo, having no other heir, therefore, in any case she is entitled to the whole estate left by him. The question of her marriage having taken . Place either in Dogra Regime or after that, has no bearing on her entitlement;
(iv) That no plea of custom prevailing in the family was ever raised by the defendants, either in the written statement or during the arguments. In absence of any plea, no issue of the sort was framed.
Therefore, no evidence from respondents' side was led in this connection; and
(v) That the appellant is the legal heir entitled to estate left by her deceased father, as such, being a co-sharer, she cannot be non-suited for not having filed the suit within the limitation of six years, as claimed by the respondents."
4. On the other hand, Raja Rafiullah Khan, the learned counsel for the opposite side, while controverting the arguments addressed by the learned counsel for the appellant, argued:--
(i) That the plaintiff-appellant claimed in her suit that she had married in 1955, after the enforcement of the Shariat Act, as such, is entitled to the estate left by her deceased father;
(ii) that the above fact was not proved by the appellant as such, both the Courts below concurrently decided against her;
(iii) that the pleadings of the plaintiff-appellant imply that she is governed by the customs, as such, she has specifically claimed her entitlement on the ground that she had married after the application of the Shariat Act. Therefore, failure of the plaintiff-appellant to prove her claim put forth in her suit, disentitled her to any share in the aforesaid estate; and
(iv) that the plaintiff has filed the suit after the limitation prescribed for a suit, therefore, the learned District Judge rightly dismissed the suit on this additional ground as well which was accorded approval by the Supreme Court when the case was remanded to consider the aforesaid point of limitation. The learned counsel referred to PLD 1985 SC 153, 1985 MLD 1574, 1985 SCMR 1218 and PLD 1985 Peshawar 29, in support of his assertions.
5. I have heard the learned counsel for the parties and also gone through the record. The plaintiff- appellant filed the suit on the basis of her claim to be the sole heir as a daughter of her deceased father who died in the Dogra Regime. It was asserted in the plaint that a mutation was registered in her name, but Mutation No,1050, later on, attested in favour of the respondents, was illegal and inoperative against her rights as she was married in 1955, after the enforcement of Shariat Act. The defendants have repudiated her claim alleging thereby that she was married in the Dogra Regime, as such, she was not entitled to any share.
6. It may be mentioned that it is not denied by the defendant-respondents that the plaintiff- appellant is the daughter of Gamoo deceased. The controversy confines to the date of her marriage which is claimed by the defendants in Dogra Regime. Be that as it may, the fact remains that she is the daughter of Gamoo deceased and there remained no ambiguity in view of the law settled by the superior Courts that the Muslims were governed by the Personal Law of Inheritance and the initial presumption was, therefore, in favour of Personal Law applicable to the parties unless the plea of custom is specifically pleaded and proved as such. The proposition finds support from the observation of this Court made in the case titled Baroo v. Mst. Said Bibi 1990 CLC 164, wherein was held as under:- ...It is undented that before Independence, personal law of inheritance was in force in the State of Jammu and Kashmir, Initial presumption was, therefore, in favour of personal law applicable to the parties. In order to succeed on the plea of custom, it was necessary that the party raising the plea of custom must allege it in specific terms in the pleadings and prove it as such. The consistent view of this Court and the Supreme Court of Azad Jammu and Kashmir is that unless custom is pleaded expressly and proved in like manner, estate of deceased, the last owner, is to devolve on the heirs in the manner prescribed in the personal law.... ".
' The proposition also attracted the attention of the Supreme. Court of Azad Jammu and Kashmir in a case titled Hussain Bibi and another v. Mst. Nasib Bibi and others PLD 1988 SC (AJ&K) 1, wherein it was observed as under:-- " ...Succession---Custom---Devolution of estate of a Muslim residing in Jammu and Kashmir before 1947---Prior to 1947, Muslims residing in State of Jammu and Kashmir, held, were governed by personal law---Party to such succession, however, could plead and prove special custom prevailing in the family.".
7. In the present case, it is found that the custom was not pleased by the defendant-respondents nor any issue to that effect was raised. There is no evidence worth reference to uphold the objection. The pleadings of the plaintiff wherein it was averred that on the death of her father, whole estate devolved on the plaintiff whereby she became sole owner and her marriage took place in 1955, after the endorsement of Shariat Act, by no stretch of imagination, support the contention of the learned counsel for the respondents to prove the factum of any special custom prevailing in the family. In absence of any pleading on behalf of the defendant-respondents with regard to the special custom in the family, the initial presumption in favour of personal law of inheritance applicable to the parties, was there. Therefore, it can safely be resolved that the plaintiff-appellant as a sole heir, was entitled to one-half of the share left by her deceased father.
8. The learned counsel for the respondents vehemently argued that the suit filed by the plaintiff- appellant was time-barred as the same was filed after the prescribed limitation. Therefore, in any case, the suit was not maintainable. It may be mentioned that the defendants failed to raise the plea of limitation in their written statement, as such, no issue was framed or any evidence was led on it, and the point was not raised before the trial Court. The learned District Judge held the suit to have been filed after the limitation. It was resolved by the District Judge that the plaintiff, for the cancellation of the mutation, should have approached under the limitation provided under Article 120 or Article 91 and therefore, the suit was held to be beyond limitation. In view of the resolution made above that the plaintiff-appellant is entitled to the share of the estate left by her deceased father, as a sharer, therefore, she being a co-sharer would be deemed to be in continuous possession of her share and any adverse entry in the revenue record would not oblige her to challenge the same because the cause of action would accrue only when the real threat was posed to her title, such as when the defendants denied her title in unequivocal terms. The entries in the revenue record, whether of mutation or record of rights, would not by themselves vest title in heirs; rather the same were evidence of title and if proved incorrect, in view of the facts admitted or proved, the title of an heir would not be adversely affected. A co-sharer in joint property is entitled to a decree for joint possession inspire of the fact that such co-sharer has not been recorded as such in the revenue record. Such entries are violative of law and are void. Therefore, the point of limitation as observed by the learned District Judge has no validity. The proposition finds approval from Bostan v. Sattar Bibi PLD 1993 SC (AJ&K) 24 wherein following observation was made:-- ' Plaintiff being a co-sharer with male heirs (defendants), though not so recorded in the revenue record, she would be deemed to be in continuous possession of her share and any adverse entry in the Revenue Record would not oblige her to challenge the same within a period of six years of the entry, for cause of action in such cases would accrue only when real threat was posed to her title, i,e, when defendants denied her title in unequivocal terms.
' The proposition finds further support from Ghualm Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 wherein the following verdict was given:-- "... ... 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 title immediately, to the heirs. Thus, it is obvious that a Muslim's estates legally and juridical 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..."
9. It was also urged by the learned counsel for the respondents that both the Courts below concurrently decided against the plaintiff-appellant, as such, there was no occasion for interference by this Court. It may be mentioned that this Court normally does not interfere in the finding concurrently arrived at by the Courts below unless some illegality is noticed or misreading or non-reading of evidence is pointed out. In the present case, both the Courts below did not appreciate the relevant point in issue and made glaring mistake while ignoring the law applicable to the parties. In the circumstances, it is felt expedient to interfere in the findings recorded by the Courts below as indicated above.
10. As discussed above, the appeal is accepted and the judgments and decrees of the lower Courts are set aside. The plaintiff-appellant is held entitled to one-half of the estate left by her deceased father, Gamoo. Mutation No,1050 is set aside accordingly. Before parting with the case, it is necessary to mention that the case-law referred to by the counsel for the respondents, in view of the resolution made above, is not applicable to the case in hand.