KHALIL-UR-REHMAN KHAN, J.---This judgment will dispose of two appeals; one (Civil Appeal No,347 of 1994) filed as of right and the other (Civil Appeal No,1270 of 1996) by leave of the Court, as question of interpretation of section 3 of the North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935 (N.-W.F.P. Act No,VI of 1935 hereinafter referred to as Act VI of 1935) as amended from time to time as well as question whether the High Court has erred to ignore the dictum of this Court in Aslam and another v. Mst. Kamalzai and others (PLD 1974 SC 207) which was reiterated in Mst. Zarmina and others v. Munjawar and another (1975 SCM R 487), are involved in both these appeals.
2. The factual background of the controversy, subject-matter of Civil Appeal No,347 of 1994 is that one Didar Gul owned landed property in four villages of Tehsil Charsadda namely, Jangal, Ibrahimzai, Ghurambak and Agra. He died sometime in the year 1929 leaving behind a son named Sahib Gul and a daughter Mst. Sahibzada, respondent No,
1. However, inheritance Mutation No,145, dated 16-5-1929 in respect of landed property in village Agra, Inheritance Mutation No,77, dated 6- 7-1932 in respect of landed property in village Ibrahimzai, Inheritance Mutation No, 189, dated 27-6- 1933 in respect of land in village Jangal and Inheritance Mutation No,220, dated 1-3-1939 in respect of landed property in village Ghurambak, were attested exclusively in favour of Sahib Gul, the son predecessor-ininterest of appellants and respondent No,2 herein. Mst. Sahibzada, respondent No,1, the daughter, as per averments contained in the plaint, on gaining knowledge of these attestations of mutations in the aforesaid manner, filed a suit on 7-5-1974 against her brother Sahib Gul now represented by Mst. Namdara and others, appellants and respondent No,2 herein, for possession of 1/3rd share out of the estate of her father, with the averments that she was a Pardanashin lady, the suit land was jointly owned by her and her brother and she used to get her share of the produce from her brother regularly and had recently come to know of the attestation of the inheritance mutations in favour of her brother. The defendant/brother contested the suit by claiming exclusive ownership of the suit land on account of the death of his father before the promulgation of Act VI of 1935. The basic plea advanced was that the suit was barred by limitation.
3. Learned trial Judge, after framing necessary issues and recording evidence of the parties dismissed the suit on 13-1-1987. The appeal of the daughter/respondent No,1 failed and was dismissed by the learned Additional District Judge, Charsada vide judgment and decree, dated 4- 2-1988. The respondent No, 1/plaintiff lost the case on two grounds; firstly, that her father had died during the days when custom was the rule of decision in the matters of inheritance and that she had not filed any suit within 12 years of his death or within 12 years of promulgation of Act VI of 1935 and secondly she/plaintiff was estopped from suing once it is conceded that she/plaintiff accepted the gift of 20 Kanals of land from the defendant and did not press for her due share in the estate left by her father.
4. Learned Judge of the Peshawar High Court accepted the Revision Petition, set aside the judgments and decrees of the Courts below and decreed the suit vide impugned judgment, dated 15-2-1994 relying on the dictum of this Court in Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) that a brother cannot legally claim adverse possession against his sister and muchless ouster. Taking note of the facts that the learned lower Courts while non-suiting the plaintiff/respondent No,1 had overlooked the facts that neither the defendant had raised any plea of adverse possession or estoppel in the written statement, nor any issue had been framed in this respect, as well as the fact that a small portion out of the suit land was culturable and the remaining area being "Banjar Qadim" and "Sailaba" was not susceptible to physical possession and there was no tangible proof of the ouster of the plaintiff from the suit land, learned Judge further observed that the so-called gift has to be kept out of consideration altogether as being the handiwork of the plaintiff's brother as it was no better than a contrivance to deprive the plaintiff of her legal rights. No gift mutation was brought on record and only piece of evidence available on record was an extract from "Roznamcha Waqiati" of village Agra on the basis of report allegedly made by plaintiff's brother on 14-3-1974 to the effect that he had made a gift of land measuring 20 Kanals, 10 Marlas situate in village Agra in favour of his sister. This piece of evidence, it was observed, rather suggested that the gift was made by the defendant/brother unilaterally without her knowledge and in any case it did not satisfy the essential requirements of gift and the report in the "Roznamcha Waqiati" was indubitably made by the defendant/brother for the sole purpose of depriving the plaintiff of her legal rights in case of litigation. Learned Judge of the High Court was, therefore, of the view that the parties are co-sharers in the suit property and possession being joint, therefore, the question of limitation does not arise. Hence Civil Appeal No,347 of 1994 has been filed as of right under Article 185 of the Constitution.
5. The facts of the other appeal (Civil Appeal No,1270 of 1996) are that Ahmad and others/successors-in-interest of Khial Mir and Gul Mir (respondents Nos.1 to 15 herein), brought a suit for declaration to the effect that they were owners in possession of the whole land described in the heading of the plaint left by Sher Baz, to the total exclusion of Suleman--now after his death represented by his legal representatives, appellants Nos.1 to 10 herein, and Usman (presently appellant No,11). It was pleaded that father of Suleman and Usman namely, Zarin Mir had predeceased Sher Baz and as such they were not entitled to any share in the estate of Sher Baz according to Shariah and the entries in the revenue record made in favour of Suleman and Usman as having succeeded to 1/2 share in the estate of Sher Baz be declared as incorrect and against the law. They also sought permanent injunction alongwith declaration in the above terms for restraining the defendants from claiming any title in the estate of Sher Baz. The defendants filed written statement contesting the claim of the plaintiffs with the averments that originally, Jehangir, predecessor-in-interest of the plaintiffs/defendants was the owner of the land in dispute. On the death of Jehangir, land was inherited by Khial Mir, Zarin Mir and Sher Baz in the year 1916. Sher Baz died after Jehangir, leaving behind Mst. Fatima daughter and Sher Bahadur son, but mutation of inheritance was not entered or sanctioned in their favour. Thereafter, Zarin Mir, the predecessor-in- interest of the defendants died and mutation of Inheritance No,1732 was correctly attested in favour of defendants Nos.1 and 2 now represented by appellants. It was added that the land left by Sher Baz thus, devolved in equal shares in favour of Khial Mir and sons of Zarin Mir and the entire land left is in joint possession of the parties. Thus, the position taken by defendants Nos.1 and 2/predecessors of appellants was that in the estate of Sher Baz, 1/2 share was given to their father while 1/2 share was mutated in the name of Khial Mir, predecessor-ininterest of the plaintiffs and the implementation was so effected sixty years ago and as such it is incorrect that according to Shariah plaintiffs were entitled to succeed to the estate of Sher Baz exclusively.
6. Learned trial Court framed issues, recorded the evidence produced by the parties and dismissed the suit of the plaintiffs vide judgment and decree, dated 15-12-1987 holding that although Zarin Mir had predeceased Sher Baz but the later had died before the enactment of Act VI of 1935 and the succession of the estate of Sher Baz was to be regulated by the Customary Law which recognized the shares of defendants Nos.1 and 2 in the estate of Sher Baz. This conclusion was drawn by the learned trial Judge on the strength of Punjab Customary Law.
7. On appeal, learned Appellate Court disagreed with the trial Court on the ground that Act VI of 1935 was given retrospective effect by subsequent amendment and distribution of the property of Sher Baz was to be regulated in accordance with Shariah and not the Customary Law. So, judgment and decree of the trial Court were set aside and the suit was decreed vide judgment and decree, dated 1-8-1992.
8. This led to filing of a Revision Petition by the defendants Nos.1 and 2 before the High Court wherein the contention raised was that the suit of the plaintiffs was hopelessly barred by time as the inheritance mutation of 1/2 share of the land in dispute in favour of the defendants Nos.1 and 2 was attested on 24-1-1927 from which date the limitation would start against the plaintiffs while the suit had been filed on 5-12-1987 after more than sixty years. In support, reliance was placed on Mst.
Sahib Jan Bibi and others v. Wali Dad and others (PLD 1961 (W.P.) Peshawar 9). It was also urged before the High Court that by the time Act VI of 1935 was amended by its two amendments in the years 1950 and 1953, which gave retrospectively to Act VI of 1935, the succession to the estate of Sher Baz was past and closed chapter. Learned Judge of the High Court formulated two points for resolution; firstly, whether Sher Baz had predeceased Zarin Mir and if not secondly, whether the suit of the plaintiffs was barred by limitation notwithstanding the retrospective operation of the Act VI of 1935. The first controversy was answered in the affirmative holding that the very attestation of impugned Mutation No,1733, dated 24-1-1927 determined that Zarin Mir, father of Usman and Suleman predeceased Sher Baz, otherwise they would not have inherited the estate of the latter.
Thus, the concurrent finding of the two Courts below on the controversy was affirmed by the learned Judge in the High Court. On the second question, learned Judge of the High Court invoked subsection (2) of section 3 of the N.-W.F.P. Act XX of 1950 and another amendment of Act VI of 1935 made in 1953 according measure of retrospectivity to Act VI of 1935 and held that the defendants/appellants herein whose father had predeceased his brother Sher Baz, were not entitled to a share in the latter's estate.
9. Leave to appeal was granted in this case to consider the question whether learned Judge of the High Court has erred to ignore the dictum of this Court in the case of Aslam and another (supra) which was reiterated in the case of Mst. Zarmina and others (supra) holding firstly that it could not have been the intention of the Legislature under section 4(1) of Act VI of 1935 to reopen the inheritance, even in cases where the heirs ha l taken an absolute vested estate under the. Custom and that only the limited estates taken under the custom, which were, in any event, to terminate on the death or remarriage or under a statute, were to be distributed according to Muslim Personal Law; and secondly, approving the ratio in the case of Mst. Sahib Jan Bibi (supra) that claim by Muslim law heirs, preferred after the enactment of Act VI of 1935 could be entertained only if law of limitation offered no impediment.
10. Mian Younis Shah, Advocate, learned counsel for the appellants in Civil Appeal No,347 of 1994 contended that learned Judge of the High Court has erred in law in holding the suit of the plaintiff/respondent No,1 herein to be within time as the said view is contrary to the law laid down in the case of Mst. Sahib Jan Bibi (supra) which view was upheld by this Court in the case of Aslam and another v. Mst. Kamalzai and others (PLD 1974 SC 207) and Mst. Zarmina and others v.
Munjawar and another (1975 SCM R 487). He urged that in these cases it was held that notwithstanding the retrospective operation of Act VI of 1935 as amended providing that whenever a dispute comes before a Court of Law with respect to succession to the estate of a deceased Muslim, he will be deemed to have died under the domain of Muslim Law even if the death had occurred at any time before the aforementioned Act (Act VI of 1935) came into force, but such claims are subject to law of limitation. Reference was also made to Mir Aslam v. Mst. Janey and others (1989 SCMR 1293), Mst. Haleema v. Shah Muhammad Khan and 42 others (PLD 1985 Peshawar 29), Qaim Khan through Legal Heirs v. Yaqub and 25 others (PLD 1986 Peshawar 10) and unreported case of Mst. Maqbool Jan alias Mst. Manzara v. Faqir Muhammad and 22 others (C.P.L.A. No,37-P of 1969, decided on 22-11-1969).
11. Mr. Muhammad Shah Badshah, Advocate, learned counsel for the respondents in Civil Appeal No,347 of 1994 as well as Mr. Jan Muhammad Khan, learned Advocate-on-Record for contesting respondents in Civil Appeal No,1270 of 1996 argued that ratio in the judgments relied upon by the learned counsel for the appellants is, that claim by Muslim Law heirs preferred after the enactment of Act VI of 1935 could be entertained only if the law of limitation offered no impediment. It was submitted that Muslim's estates vest immediately on his death in his/her heirs and as soon as owner dies, succession to his property opens and the title passes to the heirs immediately, thus, giving the rights a separate existence forthwith, the devolution being automatic. It was added that adverse entry or a wrong mutation confers on right in property as Revenue Record is maintained only for purposes of ensuring realisation of land revenue and it is for this reason that the superior Courts have held that co-sharers/co-owners are not obliged to file a suit to seek declaration to the effect that a mutation has been wrongly sanctioned. In this context reliance was placed on Muzaffar Khan v. Mst. Roshan Jan and others (PLD 1984 SC 394), Anwar Muhammad and others v. Sharif Din and others (1983 SCMR 626), Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) and Mst. Fazal Jan v. Roshan Din and 2 others (PLD 1992 SC 811).
12. At this stage notice may be taken of the requests of impleadment made by the learned counsel in both the appeals. An application (C.M.A. No,502 of 1995) was moved in Civil Appeal No,347 of 1994 on behalf of legal representatives of Mst. Almasa, for impleadment claiming that Mst. Almasa was also the daughter of Dedar Gul and was entitled to inherit the estate alongwith her sister Mst.
Sahibzada. Notice of this application was ordered to be issued to the appellants and vide order, dated 13-9-1995, the applicants were ordered to be impleaded subject to all just exceptions. No notice was ordered to be issued to Mst. Sahibzada respondent No,1 . Her counsel raised serious objection to the impleadment of the applicants (legal representatives of Mst. Almasa) pointing out that Farman Ali son of Sahib Gul who happens to be married to one of the applicants (Mst.
Nazeera) knew the pendency of this litigation but failed to implead his wife and other members of her family for all these years, and the purpose of advancing the claim now is obvious. He added that if these applicants have any right, they can bring a suit wherein the question whether Mst.
Almasa was the daughter of Dedar Gul will be gone into. Such a question requiring factual inquiry cannot be allowed to be raised at this late stage before this Court. Even Mian Younis Shah, learned counsel for the appellants supported the aforenoted last plea by saying that the question that Mst.
Almasa was the daughter of Dedar Gul cannot be urged at this late stage and as such applicants are not entitled to be impleaded.
13. In the other appeal (Civil Appeal No,1270 of 1996), Mr. Samad Khan, Advocate, learned counsel for the appellants pointed out that in the written statement a plea was taken that Sher Baz had a daughter Mst. Fatima but she was excluded from inheritance while attesting the mutation and that this Court should implead her and grant her due share with a view to do complete justice. This request was opposed by the respondents in Civil Appeal No,1270 of 1996 saying that she was mentioned in the written statement but neither request was made to implead her as a party to the suit, nor an independent suit was filed by her. It was added that the request merits to be rejected, as the question whether or not Mst. Fatima who is admittedly wife of Usman, appellant No,11, is a daughter of Sher Baz Khan, is yet to be established, and as a last resort she is being set up as a daughter of Sher Baz, with a view to grab the property anyhow.
14. The oral request made as alternate plea to implead Mst. Fatima as well as application for impleadment in the other appeal cannot be allowed, as question whether they are the daughters of the propositus or not cannot be determined without recording the evidence. This exercise cannot be undertaken at this late stage. The request to implead the applicants in both these appeals is, therefore, rejected. The customary law which was in vogue in Punjab as well as in areas of N.-W.F.P. Also provided for exclusion of females from inheritance. Considering the purpose of the Revenue Laws and nature of the entries of Revenue Record the Court expressed the view that mere omission of the name of a female proprietor in the revenue record and even attestation of a wrong mutation confers no right in property as Revenue Record is maintained only for the purposes of ensuring realisation of land revenue. The purpose and legal nature of the entries incorporated in the Revenue Record was highlighted by the Privy Council in (Thakur) Nirman Singh and others v.
Thakur Lal Rundra Partab Narain Singh and, others (AIR 1926 Privy Council 100). The superior Courts keeping in view the true nature of the rights vesting on the heirs automatically on the death of a Muslim under the Shariah in the estate left by the deceased, have held that a co-sharer holds the property for and on behalf of all the co-sharers and any adverse entry in the revenue record and mere non-participation in the profits of the property would not amount to ouster of a co-sharer. In this context it was held that a brother cannot legally claim adverse possession against his sister and much less 'ouster". See cases of Ghulam Ali (supra) and Mst. Fazal Jan (supra).
15. The basic question raised in these appeals is that of limitation and the interpretation and scope of retrospective operation of section 3 of Act VI of 1935 as amended. Section 2 of this Act enacted on 6-12-1935 provided "rule of decision in questions regarding succession, special marriage property of females, betrothal, divorce, dower, guardianship, minority, bastardy, family relation wills, legacies, gifts or any religious usage or institution including Waqf (trust and trust property)" shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims.
Section 3 of this Act as originally enacted read as under:--- "On and from the day of the enforcement of this Act, section 27 of the North-West Frontier Province Law and Justice Regulation (No,VII of 1901) shall be repealed in so far as the Muslims are concerned."
' Thus, Customary Law with regard to succession etc. Was not to be applied in the case of Muslims.
' An amendment was inserted in section 3 of Act VI of 1935 by Act IX of 1950 by renumbering section 3 as subsection (1) of that section and after that subsection, the following new subsection was added conferring retrospectivity upon Act VI of 1935:--- "(2) Whenever a question relating to succession upon the death of a Muslim arises in any Court, the rule of decision shall, whether such death has taken place before or after the commencement of this Act, be the Muslim Personal Law (Shariat)."
' This subsection (2) was again substituted by Act II of 1953, and the substituted subsection (2) of section 3 of Act VI of 1935 reads as under:--- "(2) Whenever a question relating to the succession upon the death of a Muslim arises in any Court, the rule of decision shall be the Muslim Personal Law (Shariat), and where such death has taken place before the 6th December, 1935, the rule of decision shall be according to the Muslim Personal Law (Shariat) as if that law had been applicable at the time of such death."
16. Section 3 of Act VI of 1935 as amended came up for consideration before the Peshawar High Court in Mst. Rehmania and others v. Mst. Maqbula and others (PLD 1956 Peshawar 115) and Mst.
Sahib Jan Bibi and others v. Wali Dad and others (PLD 1961 Peshawar 9) and it was held that the correct reading of the law now undoubtedly is that Act VI of 1935 is retrospective in effect.
Whenever a dispute comes before a Court of Law with respect to succession to the estate of a deceased Muslim the deceased will be deemed to have died under the domain of Muhammadan Law, even if the death had taken place at any time before the 6th of December, 1935. It was further held in the case of Mst. Rehmania (supra) that the claims under Act VI of 1935, are like all other claims, subject to the provisions of the Limitation Act and if a claim to the estate of the deceased is preferred under Act VI of 1935, and the claim is under the bar of limitation, the bar of limitation will prevent the claim from being entertained. It was also held that the claims which the heirs of a deceased person prefer after the enactment of Act VI of 1935 will be entertained only if the law of limitation offers no impediment. The finding of fact recorded was that no grain out of the produce of the land was ever paid to the daughters of Khan Karamdad Khan, as such the claim of the daughters stood barred, the suit having been instituted when possession of the sons had matured into full ownership by prescription.
17. The other amendment introduced in Act VI of 1935 was addition of section 4 to Act VI of 1935 vide Act XI of 1950, whereby it was provided that the persons entitled to succeed to immovable property held by a Muslim female as a limited owner under the Customary Law, on termination of such limited interest, shall be those persons who would have been entitled to succeed at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been the rule of decision governing the succession upon such death. The cases pertaining to limited estates of the females decided with reference to section 4 of Act VI of 1935 as such are not in point to the cases falling under section 3(2) of Act VI of 1935: It will, therefore, be seen that the cases cited at the Bar viz. Aslam and another v. Mst. Kamalzai and others (PLD 1974 SC 207), Mst. Zarmina and others v.
Munjawar and another (1975 SCMR 487), Mst. Haleema v. Shah Muhammad Khan and 42 others (PLD 1985 Peshawar 29) and Qaim Khan through Legal Heirs v. Yaqub and 25 others (PLD 1986 Peshawar 10) are not relevant for the present controversy as they pertain to immovable property held by a Muslim female limited owners under section 4 of Act VI of 1935 added by Act XI of 1950.
Same is the position with the case of Mir Alam v. Mst. Janey and others (1989 SCMR 1293) wherein the last female, who was holding the property under the custom, was Mst. Janey respondent. Her right in the suit property terminated when she married in 1940 and left the country. In the Province of N.-W.F.P., customary law was done away with by Act VI of 1935 which came into operation from 6-12-1935 but this law did not apply to limited estates of females then, therefore, on her marriage in 1940, Mst. Janey was excluded to inherit from her father (Amir) and thus, the property was inherited by the other heirs of Amir and mutation was attested on 20-5-1940 in their favour. In 1950, through N.-W.F.P. Muslim Personal Law (Shariat) Application (Amendment) Act, 1950 (Act XI of 1950) the right of the female limited owner was recognized for the first time and the female limited owner was allowed to succeed the last full owner along with other heirs under the Sharia if her limited interest in the property had terminated by reason of her death/remarriage. Thus, under Act XI of 1950 she became entitled to inherit from the property of her father. So, she filed the suit in 1972 claiming her share on the basis of Act XI of 1950 which was held to be barred by time, inter alia, recording the finding that there existed no evidence that she had been receiving any share in the property and that the portion of land which was mortgaged by the limited owner was got redeemed in the year 1942 and in the circumstances the finding of the learned Judge in chambers in extending the period of limitation on the ground of property being under mortgage was held to be not correct and thus, the suit was held to be barred by time. Again, in the unreported case of Mst. Maqbool Jan alias Mst. Manzara v. Faqir Muhammad and 2 others (C.P.L.A. No,37-P of 1969, decided on 22-11-1969), leave was refused and the dismissal of the suit filed by one of the daughters on the ground of limitation was upheld, as on facts the finding recorded was that the son (Faqir Muhammad) had secured title to the property by adverse possession. It was, however, observed that the mere fact that the name of a female sharer was not entered in the revenue record or mutation register would not necessarily mean that she has been ousted from possession.
18. Reference may at this stage be made to Muzaffar Khan v. Mst. Roshan Jan and others (PLD 1984 SC 394) wherein provisions of section 3(2) of Act VI of 1935 came up for consideration and on the question of retrospectivity of this provision it was observed that there is no doubt left that Act VI of 1935 is to be given retrospective effect and that whenever a dispute comes before a Court of law with respect to succession to the estate of a deceased Muslim, the deceased will be deemed to have died under the domain of Muslim Law even if a death had taken place before the coming into force of Act VI of 1935.
19. So, in the case of a co-sharer and specially females, mere attestation of a mutation excluding a co-sharer or a female co-sharer cannot be made basis for holding that the limitation will run against her from the date of attestation of mutation. It was for this reason that learned Judge in Chambers held that in the case of Mst. Sahibzada the question of limitation does not assume importance as her exclusion had not been established, the land was mostly Banjar Qadim and Sailaba and even the question of estoppel does not arise as entry in the 'Roznamcha Waqiati' would not show that valid gift of the land had been made and that the said gift had been accepted by Mst. Sahibzada, the sister in relinquishment of her right to claim due share in the land.
It was in this context that learned Judge of the High Court opined that this was a contrivance or a handiwork of the brother to deprive the sister of her due share but neither any gift of 20 Kanals, 10 Marlas of land legally was created nor it was accepted. Moreover, the plea of adverse possession if not raised in specific form in the written statement cannot be allowed to be raised nor could any weight be given to it. (See: Naik Muhammad and another v. Manzoor Ahmad and others (1983 SCMR 13)).
20. The statement entered in the 'Roznamcha Waqiati' shows that the brother Sahib Gul thought over this contrivance to ward off the claim of co- sharer sister by putting up a claim that she was satisfied by receiving a gift. Be that as it may, no plea can be raised on the basis of this 'Roznamcha Waqiati" of adverse possession or of relinquishment of the right or that she had the knowledge of adverse entry existing in the record. The entry of "Roznamcha Waqiati" merits to be discarded and was rightly discarded by the learned Judges of the High Court.
21. The ratio in the case of Mst. Sahib Jan Bibi and others v. Wali Dad and others (PLD 1961 Peshawar 9) is that claim by Muslim Law heir preferred after the enactment of Act VI of 1935 could be entertained only if law of limitation offered no impediment. From the discussion above it is apparent that the dicta of the Peshawar High Court in Aslam and another v. Mst. Kamalzai and others (PLD 1974 SC 207) and Mst. Zarmina and others v. Munjawar and another (1975 SCMR 487) was not ignored by the learned Judges of the High Court in the impugned judgments. In the cases of Aslam and another (supra) and Mst. Zarmina and others (supra) the ratio was that it could not have been the intention of the Legislature under section 4(1) of Act VI of 1935 to reopen inheritance even in cases where a heir has taken absolute vested estate under the custom and that only limited estates taken under the custom, which were, in any event, to terminate on the death or remarriage of the female heir, were intended to be distributed according to Muslim Personal Law.
The cases of limited estate on its termination were not in point as already shown above. In the instant case, learned Judges have pointed out that the question of limitation does not arise on account of dicta laid down in Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1).
22. Coming to the other appeal (Civil Appeal No,1270 of 1996), it will be noted that the suit merited to be decreed and the question that the suit was barred having been filed after sixty years of the attestation of mutation did not arise as the plaintiffs were in possession of land of their own share as well as the share in the land of Sher Baz which they were entitled to inherit according to Shariah.
In any case they are admittedly in possession of the said share of Sher Baz. This possession is open, adverse and hostile as against Suleman and Usrnan/appellants. Assuming, if under custom, Suleman and Usman were entitled to receive half, i.e,, 1/2 share out of estate of Sherbaz, the said share having remained in possession of Khial Mir/brother for a period of sixty years, the title in respect of this land matured in favour of Khial Mir much before filing the suit. In this context, statement made by Usman is specific and contains the admission which may be reproduced hereunder:--- "Jehangir was owner of 120 Jarib of land. I am in possession of 40 Jarib out of this area. The remaining 80 Jarib is in physical possession of the plaintiff. The witness volunteer to assert that the plaintiffs had taken possession of the said area by grace and they are in adverse possession. They had taken forcible possession 60 years ago. They have been cultivating this area for the last 60 years and have been enjoying the usufruct thereof to my utter exclusion during the last 60 years.
The witness volunteer to state that in spite of this he has been paying the revenue. I am paying Rs,120 as land revenue accordingly. I do not know the land revenue of the entire estate of Jehangir Khan. At the time of dispossession I and my brothers were minors and Khial Mir plaintiffs predecessor-in-interest has dispossessed us by force. I and my brother had lodged the report about our forcibly dispossession because we were not so young. We had brought a suit for possession against the plaintiffs and we had also led Jirgas to them. But in spite of all this the plaintiffs did not surrender possession to us of the area of which they had taken forcible possession. A Jirga had been convened 20 years ago, consisting of 8 persons including Ansah.
They had written a decision to the effect that we were also entitled to inherit Sherbaz because he was also our uncle. We had not given the dates of deaths of Zarin and Sherbaz to the Jirga members. The decision of the Jirga has been handed over by us to our learned counsel. I had not instructed my counsel to mention the factum of jirga in my written statement. Pir Manki Sharif had been nominated before partition of the country by the English People who had rendered a decision.
I am in possession of this decision as well. Even the fact of this Jirga has not been mentioned in the written statement nor I have placed any copy of award on the file. I have not brought any suit for the correction of the entries in the Revenue Record showing Khial Mir alive and recording Zarin is dead."
23. The aforenoted statement clinches the Issue and sufficiently shows that the title of the plaintiffs had matured by prescription assuming that the mutation of inheritance was correctly attested in the year 1927. Under Muslim Law Zarin Mir, their father having predeceased Sher Baz, Usman and Suleman were not entitled to inherit Sher Baz, and Khial Mir, therefore, could claim the property under Act VI of 1935 as amended and as such title in the property in his possession. So, on both counts the suit was bound to succeed and was correctly decreed.
24. For the reasons given above, interference is not called for in the impugned judgments passed in both the appeals. Both the appeals are, therefore, dismissed leaving the parties to bear their own costs.