' The petitioners, who are all daughters of Kalu, filed a civil suit. It has been averred in the plaint that the suit land was owned and possessed by Allah Ditta son of Kalu, who was real brother of petitioner Nos.1 to 4 and consanguine brother of petitioners Nos.5 and 6. The name of the mother of petitioners Nos.1 to 4 and the said Allah Ditta is Sharf Bibi while of petitioners Nos.5 and 6 was Rani.
According to the plaint, petitioners Nos,1 to 4 inherited 2/3rd share from the suit estate as full sisters being sharers while petitioners Nos.5 and 6 inherited the residue 1/3rd being consanguine sisters as residuary. Respondents are successors of Muhammad Yousaf son of Muhammad. a collateral of Allah Ditta. The Revenue Officer attested Mutation No,318 on 31-8-1977 treating the petitioners to be full sisters of Allah Ditta and giving them 2/3rd as sharers and giving the residue to the said Muhammad Youssaf. With the said averments, it was prayed that the said mutation be declared a nullity in the eye of law and it be declared that the petitioners are the owners in possession of the suit land to the exclusion of the respondents.
2. The respondents filed a written statement claiming the suit to be barred by res judicata, as the suit filed by Shabbir Hussain, who had impleaded all the 'parties to the present lis as defendants, was dismissed on 5-11-1978 and the said mutation was declared to be valid. It was averred that petitioners Nos.5 and 6 themselves got the mutation entered and it was attested in their presence.
The mutation had since been incorporated in the 'Revenue Records. On merits, it was replied that the alleged relationship of the petitioners Nos.5 and 6 with Allah Ditta is not admitted. It was, however, admitted that Allah Ditta was the owner and he died issueless. The mutation was asserted to be valid. The learned Civil Judge framed the following issues:- "(1) Whether the plaintiffs are owners in possession of the suit land? OP.
(2) Whether the Mutation No,318 1 illegal, void and inoperative upon the rights of the plaintiffs? OPP.
(3) Whether the plaintiffs have got no cause of action and locus standi? OPD.
(4) Whether OPD
(5) Whether this suit is hard for misjoinder of the parties? OPD.
(6) Whether the plaintiffs are estopped by their act and conduct to file the suit? OPD.
(7) Whether this suit is hit by res judicata? OPD.
(8) Whether this suit is not maintainable in its present form? OPD.
(9) Whether this suit is not properly Valued for the purposes of court-fee and jurisdiction? If so, its effect? OPD.
(10) Whether the defendants have become owner in possession of the suit land on the basis of adverse possession for more than 12 years? OPD.
(10-A) Is the report of local commission liable to be set aside? OP petitioners/defendants.
(10-B) Have the respondents/plaintiffs wilfully and knowingly disobeyed the injunctive order of the Court, dated 17-9-1990? OP-petitioners/ defendants .
(11) Relief."
' Evidence was recorded. The learned trial Court recorded a judgment which, to say the least, is queer. The discussion 'on Issues Nos.1 and 2 gives the impression that the twined trial Court did not believe the evidence of the petitioners to the effect that petitioners Nos.5 and 6 were consanguine sisters of Allah Ditta. However, towards the end the trial Judge says that the matter be reconsidered treating the petitioners Nos.1 to 4 as sharers and petitioners Nos.5 and 6 as residuries. Under the relief clause, he did not even grant any relief. He simply said that the matter be reconsidered and it is not understandable who is to reconsider the matter. The respondents filed an appeal, which was heard by a learned Additional District Judge, Kharian. The Appellate Court took note of the inconsistency between the said conclusion and the discussion of the evidence by the trial Court as also the manner in which the suit was disposed of. He discussed the evidence threadbare and came to the conclusion that all the petitioners are full sisters of. Allah Ditta and consequently held the mutation to be valid. The appeal was allowed and the suit of the petitioners was dismissed on 24-5-1995.
3. It may be added here. That the judgment of the learned Additional District A Judge takes note of the arguments of learned counsel for the respondents that even if it be deemed that the petitioners Nos'.5 and 6 are consanguine sisters then they shall stand excluded by the full sisters and the residue of 1/3rd in any case will go to the respondents. Some treatise on Islamic Law including Mulla's Muhammadan Law were relied.
4. Against the said judgment of the learned Additional District Judge present civil revision has been filed. The elaborately drafted memo. Of this civil revision proceeds to attack the finding recorded by the learned Additional District Judge on the merits of the case. The petitioners insisted that petitioners Nos.5 and 6 are consanguine sisters of Allah Ditta. Interestingly the above referred argument of respondents noted in the impugned judgment stands conceded in the grounds, wherein a complaint has been made that it was only petitioners Nos.1 to 4, who were entitled to get the entire 2/3rd and petitioners Nos.5 and 6 should have been excluded. The prayer made in the civil revision is to the effect that the impugned judgment of the learned Additional District Judge be set aside and. That of the learned Civil Judge be restored. The civil revision was admitted to hearing vide order, dated 5-9-1995 on the submission of the learned counsel for the petitioners that the record has been misread. Some dates were fixed in the year 1996 and one in the year 1997 when the case was adjourned on the request of the learned counsel for the petitioners. On 28-6- 1997 C.M. No,1 of 1997 was filed praying to urge additional grounds enumerated in the said C.M. This C.M. Came up on 30-10-1997, when it was allowed subject to all just exceptions.
5. Mr. A.K. Dogar learned counsel for the petitioners has nothing to say about the judgment of the learned Additional District Judge on the facts pleaded and the evidence produced on record and read by the learned Additional District Judge. He has, however, vigorously argued the additional grounds taken vide the said C.M. No,1 of 1997. His contention is that the suit land belonged to Kalu and when Kalu died Allah Ditta and all the six petitioners were alive being his children as also his widow Sharaf Bibi. According to the learned counsel 1/8th of the land was to go to the said widow while out of the remaining 7/8th, 1/4th will go to Allah Ditta and 3/4th to the petitioners. Similarly on the death of Sharaf Bibi her estate will go to Allah Ditta and petitioners Nos.1 to 4. Mr. Mehdi Khan Chohan, learned counsel for the respondents has seriously objected to the grant of said C.M.
According to him the said additional grounds are not available to the petitioners.
6. I have gone through the records with the assistance of the learned counsel for the parties. Mr. A.K. Dogar opened his arguments with reference to the case of Federation of Pakistan through Secretary, Law and Parliamentary Affairs, Islamabad v. Muhammad Ishaque and another (PLD 1983 SC 273). This is the judgment that ultimately led to the enactment of Punjab Muslim Personal Law (Shariat) (Amendment) Act, 1983 (Act XIII of 1983). Learned counsel contended that by virtue of the said judgment and the legislative enactment following it, custom was done away with completely.
As a result of the said judicial and legislative pronouncement, the matter of inheritance will revert back to Kalu, the father of the petitioners and the devolution of Kalu's estate upon Allah Ditta to the exclusion of petitioners shall be deemed to be void. Learned counsel then cited the case of Mst.
Amina Begum and others v. Mehr Ghulam Dastgir (PLD 1978 SC 220) for the proposition that the Court should not hesitate in moulding the relief according to the circumstances and the law of the land on the date when it gives its decision where there is change "subsequent to the institution of the suit". For the said proposition, the learned counsel also relied on the case of Mst. Salma Abbasi and others v. Ahmad Suleman and others (1981 CLC 462). This was judgment by Mr. Justice Ajmal Mian (as his Lordship then was). His Lordship observed at page 472 that "a Court is competent to grant a relief though not specifically prayed for, or it may grant a relief on a ground other than relied upon in the plaint provided the same can be made out from the averments in the pleadings and the evidence on the record and provided it is not inconsistent with the plaintiff's pleading and that there is no element of surprise to his adversary". The learned counsel relied on the case of Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC 690) to argue that it is the duty of the Court to apply the law applicable to the admitted or proved facts itself. The learned counsel then cited the case of Mst. Farida and 2 others v. Rehmat Ullah and another (PLD 1991 SC 213), wherein the Supreme Court took note of the fact that the Government of N.-W.F.P. Had not enacted a law as done by the Government of Punjab in pursuance of the command contained in the case of Ch. Muhammad Ishaque (supra). It was observed with reference to the case of Muzaffar Khan v. Roshan Jan (PLD 1984 SC 394) that "whenever dispute comes before the Court of law with regard to succession to the estate of a Muslim deceased, he will be deemed to have died under the domain of Muslim Law, even if the death had taken place before coming into force of the West Pakistan Muslim Personal Law (Shariat) Application Act of 1935". Learned counsel finally in sequence of his arguments to bring home the additional grounds sought to be taken by him cited the case of Shahro v. Mst. Fatima and others (PLD 1998 Supreme Court 1512). In the said case Mitha the last male owner died in 1936 leaving a widow and two daughters. However, his brother Bahadur managed to get his entire estate mutated in his favour on the representation that he is the sole heir. The said ladies filed a suit claiming their share to which they were entitled under the Islamic Law. It was held that entries in the Revenue Records do neither create nor extinguish title but are mere evidence thereof. The judgment of this Court allowing the said ladies" their share in the estate of Mitha was upheld.
7. There is no cavil with the authorities cited by the learned counsel. However, the-pronouncements were made in the facts and circumstances of the respective' cases. When confronted with the pleadings., the evidence thereon, the grounds of appeal and of the civil revision, Mr, A.K. Dogar relying on the case of Budho and others v. Ghulam Shah (PLD 1963 SC 553) argued that the petitioners can take any plea at any time even if it be inconsistent with the case set-up in the plaint. A portion read out by the learned counsel from Budho's case (supra) appearing at page 562 of the report did give this impression. However, on a fuller reading of the judgment, argument of the learned counsel comes down to the ground. In the said case the plaintiffs claimed title as heirs of the last male owner i,e, Musa Khan. They also averred that the said Musa Khan had executed three wills in their favour and then there was a reference to an agreement/settlement Inter se the plaintiffs. Those two pleas were held not to be inconsistent for obvious reasons that the titles were flowing from the same source i,e, Musa Khan. One thing very clearly emerges from the said judgment is that whatever plea may be it has to be based on some facts and under the law the said facts are to be pleaded. One test laid down by their Lordships to adjudge inconsistency is that a plaint which contains both the facts could not be verified as true by a plaintiff: I asked Mr. A.K.
Dogar to demonstrate that even if I were to allow him to amend his plaint how would he mention the facts on the basis whereof he is trying to raise additional grounds in the plaint, in order to enable me to see whether his clients can verify the plaint containing the said facts. Learned counsel after making some efforts conceded that he cannot state the said facts mentioned in his additional grounds without alleging that the mutation in favour of Allah Ditta was void and that he was not the owner of the entire suit land. The learned counsel thus on his own showing is unable to plead the facts along with the facts already contained in the plaint and to get them verified on oath by his clients. Needless to add that law is to be applied by the Courts to the facts on record proved or admitted. In the present case, the admitted facts are that the last male owner was Allah.
Ditta and the proved facts are that all the six petitioners are his full sisters and the respondents are, his resicluaries. This Court is hearing a civil revision against the judgment of the learned Additional District Judge. Law of the land governing the said jurisdiction lays down some parameters within which the same is to be exercised. I have to adjudge the validity of the judgment on the basis of pleadings and reading of the evidence by the learned lower Courts. I have to see whether on the basis of facts admitted and proved in the present case the learned Additional District Judge has recorded a correct finding in accordance with law. I find that the judgment of the learned Additional District Judge does not suffer from any of the defects mentioned in section 115, C.P.C. To enable me to interfere with the same. It may he mentioned here that the suit was filed on 16-9- 1990. Learned counsel for the petitioners after citing the aforementioned judgments has not been able to point out the change that .Has taken place in law after the filing' f the suit to which I must give effect. I may also point out here that even assuming that all the facts on which the additional grounds are based had been duly pleaded and evidence are accordingly, on the words of the law applicable i,e, section 2-A of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the male heir referred to therein will be Allah Ditta, who acquired the agricultural land. Before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948 as admittedly Kalu died in the year 1940. A word needs to be said here about the conduct of the petitioner, I am of the firm opinion that the petitioner ladies do not qualify for the special status in law accorded to the acts and transactions of illiterate and Pardanasheen ladies. The record discloses < an intense deliberate effort by the ladies to dis-inherit the respondents, who are otherwise entitled to inherit under the very law i,e, of Holy Qur'an and Sunnah of Holy Prophet (p.b.u.h.) which the learned counsel for the petitioners is trying to propound. To begin with the mutation in question was got entered by Hussain Bibi and Makhan Bibi petitioners. These ladies went to Patwari in the company of Shabbir Husain, a son of one ,of the petitioners and stated that Allah Ditta is owner of the land and he has made a will giving away 2/3rd share to all the sisters and 1/3rd to the said Shabbir and his two brothers. However, the attempt did not materialize and the estate was distributed in accordance with Islamic Law. Thereafter, a suit was got filed by the said Shabbir Hussain and others which was contested and was dismissed vide judgment and decree dated 16-1-1983, Exh.D.18. It was thereafter that the present suit, which represents the ingenuity of its draftsman, was instituted to knock out the collaterals. I find from the record that the ladies have been vigorously following the suit and the proceedings arising out of it on the basis of the pleas contained in the plaint.
8. Mr. Mehdi Khan Chohan, learned counsel for the respondents in order to substantiate his objections to the grounds. Of. C.M. Has relied on the case of Secretary to Government (West Pakistan) now N.-W.F.P. Department of Agriculture and Forests, Peshawar and 4 others v. Kazi Abdul Kafil (PLD 1978 SC 242), where their Lordships have held that a party cannot be allowed to withdraw an admission made in the written statement by way of amendment. According to the learned counsel, the petitioners' have admitted that last male owner was Allah Ditta and the land belonged to him and it was on this premises the suit was filed and it was proceeded with. He next relied on a case from Supreme Court of Azad Jammu and Kashmir, wherein the pronouncement similar to one made by our Supreme Court was made. Next the learned counsel relied on the case of Government of West Pakistan (now Punjab) through Collector, Bahawalpur v. Haji Muhammad (PLD 1976 SC 469), wherein it has been held that where a plea of fact has not been pleaded no case should be founded on such a "plea. The said observations were further confirmed by the Supreme Court in the case of Binyameen and 3 others v. Ch. Hakim and another (1996 SCM R 336). Reliance has also been placed on the case of Atlantic Steamer's Supply Company v. M.V. Titisee and others (PLD 1993 SC 88), wherein their Lordships observed that an amendment changing the complexion of the case and causing prejudice to the other party cannot be allowed. Learned counsel for the petitioner's has been unable to meet the said objections of the learned counsel for the respondents fortified by the above said authoritative pronouncement on the subject.
9. The upshot of the above discussion is that the learned Additional District Judge has applied correct law, which of course is the law of the land even now, to the proved and admitted facts before him. Learned counsel for the petitioner has not been able to point any misreading of the record. In fact, as stated above, the impugned judgment as it is, has not been challenged. The learned Additional District Judge has acted within the bounds of his jurisdiction and has committed no irregularity while exercising the same. The impugned judgment cannot be set aside by applying the law in vacuum, when on the proved and admitted facts of the case a legal and valid judgment in accordance with law applicable has been passed. No grounds exist enabling this Court to interfere with the impugned judgment. The civil revision is dismissed with costs.