' In this appeal judgment and decree dated 22-2-1975 passed by the learned District Judge, Muzaffargarh has been challenged whereby he maintained the decree passed by the learned Civil Judge on 23-7-1973.
2. Brief facts of the case are that Qadir Bakhsh appellant filed a suit against Mst. Bakhat Bhari etc. Respondents for declaration to the effect that Mutation No,1254 sanctioned on 5-6-1945 on behalf of defendant No,1 in favour of defendant No,2 in respect of 456 Kanals and 12 Marlas of land situated in village Umar Janubi, Tehsil Muzaffargarh is void and ineffective against his rights on 31- 12-1962 on the enforcement of Muslim Personal Law (Shariat) Application Act, 1962. It was also asserted that plaintiff and defendants Nos. 3 to 10 were entitled to get Islamic share out of the aforesaid land in accordance with the Sunni Law. A prayer for possession of 3/128th share out of the suit land was also made. The case as set out in the plaint was that Amir Bakhsh was the original owner of the suit land. He died in the year 1929. In the matter of succession he was governed by custom and, therefore, under the Customary Law his inheritance was mutated in the name of his widow Mst. Bakht Bhari defendant No,1 as limited owner. She transferred the suit land by way of gift in favour of Mst. Ghulam Fatima her daughter defendant No,2 vide gift Mutation No,1254 sanctioned on 15-6-1945 and in this way defendant No,2 became limited owner of the suit land. It was further alleged that by promulgation of Muslim Personal Law (Shariat) Application Act, 1962, the limited interest had terminated and as such mutation was void and ineffective against the rights of the plaintiff and defendants Nos.3 to 10. It was also stated in the plaint that at the time of death of Amir Bakhsh, Jind Wadda the predecessor-in-interest of the plaintiff and defendants Nos.3 to 7 and Lal the predecessor-in-interest of defendants No,8 and 9 were also alive in addition to defendants Nos.1 and 2 and they were entitled to inherit the share out of the inheritance according to their Islamic share. It was claimed that plaintiff was owner of 3/128th share.
Defendants Nos.3 to 10 submitted a consenting written statement. Suit was contested by Defendants Nos.l and 2 on the ground that Act V of 1962 did not apply to the gift Mutation No,1254 sanctioned on 5-6-1945 and the suit was time-barred. On merit it was stated that transfer of suit land by defendant No,1 to defendant No,2 was valid and respondent No,2 had become full owner of the suit land. Plaintiff as well as Defendants Nos.3 to 10 had no right whatsoever in the suit land.
3. On the divergent pleadings of the parties following issues were framed:--
(1) Whether the suit is barred by time? OPD
(2) Whether suit has not been properly valued for the purposes of court-fee and jurisdiction? If so, what is the correct valuation for these purposes and what is its effect? OPD
(3) Whether details in the amended plaint are different from that in the original? If so, what is its effect? OPD
(4) Whether the suit is not maintainable in the present form? If so, what is its effect? OPP
(5) Whether the plaintiff and Defendants Nos.3 to 9 are legal heirs of Amir Bakhsh, the deceased husband of defendant No,1 are entitled to the deceased's inheritance? OPP
(6) Whether defendant No,1 had got the suit land as life estate which could not be gifted by her in favour of her daughter? OPP (6-A) Whether Act V of 1962 is not applicable to the gift in dispute? OPD
(7) Relief.
' After recording evidence and hearing the arguments of the learned counsel for the parties learned Civil Judge dismissed the suit vide judgment dated 23-7-1973 with cost mainly on the point of limitation. Plaintiff filed appeal against judgment of the Civil Judge which was also dismissed vide the impugned judgment dated 22-2-1975 passed by the learned District Judge, Muzaffargarh, there the present R.S.A. Has been filed by the appellant. Learned counsel for the appellant contends that the mutation is hit by Muslim Personal Law (Shariat) Application Act V of 1962. Mst. Ghulam Fatima was entitled to retain the land to the extent of share of her mother respondent No,1 alone.
On the question of limitation he has relied upon Shamasuddin v. Mst. Jewan etc. (1986 MLD 764) to contend that suit of the appellant was within time from the day of refusal of respondents Nos.1 and 2 to accept his right in the disputed property.
4.Learned counsel for the respondents Nos.1 and 2 on the other hand has referred case of Abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 SC 407) to contend that the land inherited before 15-3-1948 under custom in view of section 2-A of Act, 1962 to be treated as absolute owner and deemed to have inherited under Muslim Shariat Law and such a decree whereby alienation by vendor was set aside (conditionally) was, by operation of a statutory bar, not executable as said sale could not be set aside. He has also submitted that the suit was hopelessly barred by time. Respondents Nos.1 and 2 are in possession of the disputed property since 1930 and 1945 respectively and the suit having been instituted on 4-1-1966 was barred by time and the lower Courts have rightly dismissed the claim of the appellant being barred under the Limitation Act.
5. I have heard the learned counsel for the parties at length and perused the record with their assistance. The judgment referred by the learned counsel for the appellant reported in NLR 1984 Civil 529 Shamasuddin v. Mst. Jewan etc. While dealing with the question of limitation observed that Article 120 of the Limited Act prescribed period of 6 years for declaratory suits. Even last attack on right of the plaintiff furnishes him fresh cause of action for the purpose of limitation and as such he may file suit for declaration within six years of last attack. In such circumstances of the case declaratory suit filed in 1981 to challenge mutation attested in 1933 was held within time. The aforesaid judgment is not applicable to the facts of the present case. Admittedly last male owner died in the year 1929. The land devolved upon Mst. Bkahat Bhari who gifted it to her daughter respondent No,2 in the year 1945. The possession of the disputed land throughout remained with respondents Nos.1 and 2. They were in exclusive possession as owner of the property in dispute.
Institution of the suit in 1966 is hopelessly barred by time. The judgment referred above by the learned counsel for the appellant deals with a case of female heir for declaration where she claimed the share of inheritance under the Shairat Law. The female heirs were deprived of inheritance in the aforesaid case who instituted the suit that defendant had illegally got the land mutated in his name whereas plaintiffs were entitled to inherit the same. Learned Civil Judge dismissed the suit of the plaintiff which order was set aside by the learned District Judge against which the revision petition was disposed of through the aforesaid judgment holding that real and substantial justice has been done by the learned District Judge and it was not a case for interference with the impugned judgment and decree. In the instant case predecessor-in-interest of defendants Nos.3 to 10 is not admitted co-sharer. Appellant in his statement has not even disclosed how he was related to Amir Bakhsh husband of respondent No,1 and father of respondent No,2. He was not co-sharer in possession of the disputed property which is in possession of respondent No,2 since 1945. It was in the knowledge of appellant that mutation of gift was sanctioned in favour of respondent No,2 in the year 1945. The said gift was not challenged within the prescribed period of limitation. The judgment referred above by the learned counsel for the appellant is not applicable. To the facts of the present case.
6. It may also be noted that transaction of gift or sale made prior to 15-3-1948 stands protected as laid down by the Supreme Court in PLD 1985 SC 407 Abdul Ghafoor and others v. Muhammad Shafi and others. In this case their Lordships have observed that the land inherited under custom before 15-3-1948 by vendor to be treated as absolute owner and deemed to have inherited under Muslim Shariat Law and such transaction could not be interfered with in view of section 2-A of Muslim Personal Law (Shariat) Application Act V of 1962. On this ground also the suit of the appellant was not maintainable. The appellant's contention that respondent No,1 could not gift property more than her Muslim share is also without any substance. The custom referred as Exh.D-1 of District Muzaffargarh shows that respondent No,1 was entitled to inherit entire property of her husband. No contrary evidence has been produced by the appellant to conclude that claim of respondents Nos.1 and 2 is incorrect. Exh.D-1 having not been rebutted by any documentary evidence I am left with no option but to rely upon the same.
7. Further reliance has been placed upon PLD 1974 Lahore 458 Mst. Fattan Bi and 2 others v. Fateh Muhammad and 6 others wherein it has been held that widow's limited interest under custom alienating property (by means of gift) in 1951 not challenged and becoming barred by limitation under Act I of 1920, on death of the widow in the year 1963 collaterals of last male owner filing a suit for possession in 1964 challenging validity of gift that it did not affect their rights on the ground that limitation prescribed under Act I of 1920 having been repealed by Act V of 1962 was no longer in field and as such suit was governed by Article 141 of Limitation Act and cause of action arose only on death of widow in 1963 was repealed. It was observed in this case as under:-- "A widow holding life estate gifted away the property to a relative in 1951. She died in 1963.
Thereafter in 1964 the collaterals of the last male-owner filed a suit for possession on the ground that the impugned gift was invalid and could not affect their rights. The suit was barred under section 7 of the Punjab Limitation (Custom) Act, 1920 but the contention was that on the death of the donor, Act I of 1920 having been repealed by the West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962 was no longer in the field and the suit was, therefore, governed by the provision of Article 141, Limitation Act, 1908 and the cause of action for the suit arose only after the death of the widow.
' Held, the limitation allowed by Act I of 1920 for possession of ancestral immovable property which has been alienated and the alienation of which is challenged as not binding on the plaintiff according to custom is three years from the date on which the right to sue accrued.
' An alienation by gift is also governed by Act I of 1920. The principle that a gift by a widow can be effective only till the termination of life interest is applicable only to those cases where either the gift is specifically that of a life interest with a condition that it would cease to operate after the termination of the interest, or where a decree for declaration has been obtained by a reversioner under Custom. There is no difference on principle between the alienation by gift or an alienation by some other manner."
' Learned counsel for the appellant relied upon 1988 SCMR 293 Hakim Ali and others v. Barkat Bibi and others while arguing that appellant is entitled to inherit the disputed land alongwith respondent No,2. Further relied upon 1987 SCMR 2008 Murdad v. Karam and others, 1996 SCMR 158 Suba through legal heirs v. Fatima Bibi through legal heirs and others and 1996 SCMR 901 Haider Shah and 5 others v. Mst. Roshanaee and 9 others.
8. The aforesaid judgments relate to consideration of the matter on merit. Since the suit of the appellant was barred by time the merits of the case cannot be examined. The appellant could press into service merits of the case only by crossing hurdle of limitation. The suit was barred by time and Courts below were justified to dismiss the same without going into merits. In view of the above circumstances this appeal has no merit and is accordingly dismissed.