' This Regular Second Appeal is directed against the judgment and decree, dated 28-9-1980 of Additional District Judge, Jhang whereby the appellants' appeal, against the judgment and decree, dated 16-10-1968 of Administrative Civil Judge, Jhang granting a declaratory decree in favour of respondents Nos.1 and 2, protecting their rights under custom as reversionary against the alienation of the land in dispute made by the alien or in favour of the appellants-defendants, was dismissed and the parties were left to bear their own costs throughout.
2. On 14-4-2000 when the present appeal came up for hearing before this Court, learned counsel for the respondents requested for a short adjournment to be able to argue that in spite of promulgation of West Pakistan Muslim Personal Law (Shariat) Act, (Amendment) Ordinance, 1983 (Punjab Ordinance No,XIII of 1983), the parties are governed by the custom and any alienation made in 1962 by a Muslim owner, would still be governed by the custom. The appeal came up for hearing on 26-4-2000 and the learned counsel for the respondents failed to tender appearance and none of the respondents also turned up. They were, therefore proceeded ex parte and the arguments of the learned counsel for the appellants were heard in their absence and the judgment was reserved to be announced later on.
3. The relevant facts giving rise to the present appeal are that the suit land measuring 109 Kanals and 18 Marlas situated within the revenue estate of Kot Bahadur Shah, Chak No,179, was originally held by ' one Shahamand son of Bahawal. He transferred it in favour of Syed Sahib Ali Shah defendant/respondent No,3/the alien or through Mutation No, 369 attested on 18-11-1934, by way of exchange. Sahib Ali Shah, thus became owner in possession of the suit land. In the year 1962, he transferred the suit land in favour of Muhammad Bakhsh, Allah Ditta and Ahmad Bakhsh, the appellants/defendants, through Mutation No,306, attested on 22-2-1962 in consideration of Rs,37,500. His two nephews namely Syed Ghulam Shabbir Ali Shah alias Ghulam Shabbir Akhtar and Bashir Ali Shah, the plaintiffs/respondents Nos.1 and 2 brought the usual suit for a declaration, under custom, on 27-3-1967, to the effect that the transfer made by Syed Sahib Ali Shah/ respondent No,3, vide Mutation No,306, in favour of the appellants/defendants, was illegal, without consideration, against Zimindara custom and without legal necessity. They further claimed - that such transfer would not be effective upon their reversionary rights after the death of the transferor.
4. In their plaint, it was alleged by the plaintiffs/deceased respondents Nos.1 and 2 (their legal representatives have been 'duly impleaded as respondents on 11-11-199.9 through C.M. 560-C of 1999) that the-suit land was ancestral qua Sahib Ali Shah, the transferor and the plaintiffs and that the transferor having acquired such land under custom, was bound by Customary Law and could not alienate it without consideration and legal necessity. The sale having been completed in contravention of the customary rights, the plaintiffs claimed that it would not bind them after the death of Sahib Ali Shah.
5. The appellants/defendants contested the suit. They challenged the maintainability of the suit itself and pleaded estoppel against the plaintiffs. After denying the ancestral nature of the suit land, it was alleged by them that the suit property was obtained by the transferor through exchange and, thus, the property had lost its ancestral nature, if any. It was also claimed that the transfer was completed for legal necessity, for consideration and for good management of the property. The existence of custom governing the alienations made by the transferor was also denied. In preliminary objections Nos.1 and 2 of the written statement filed by the appellants, it was also alleged/urged that Customary Law has since been abrogated, on that count the suit filed by the respondents-plaintiffs was not maintainable.
6. In view of the pleadings of the parties, the following issues were framed: "(1) Is the suit competent on behalf of the plaintiffs? O.P.P.
(2) Is the land ancestral qua the plaintiffs? O.P.P.
(3) Was the alien or family governed by custom? If so, what custom is? O.P.P.
(4) Was the sale in dispute for consideration and legal necessity and good management? O.P.D.
(5) Is the suit barred as objected to in preliminary objection No,1 of the written statement? O.P.D.
(6) Are the plaintiffs estopped by their conduct to file the suit? O.P.D.
(7) Relief."
' The trial Court after recording the evidence produced by the parties, vide its impugned judgment, dated 16-10-1968 found all the issues in favour of the plaintiffs/respondents Nos.1 and 2 and held that from the oral evidence it is clear that the plaintiffs as well as defendant No,1 's family.
(respondent No,3/the alien or) before the enforcement of Shariat Act were governed by custom as was the case with the agricultural tribes in the Province of the former Punjab and the land was sold for consideration but without any valid necessity or for good management and decreed the plaintiffs' suit vide its judgment and decree, dated 16-10-1968 granting a declaratory decree to the effect that the sale in favour of defendants Nos.2 to 4/appellants, by defendant No,1/respondent No,3 would not affect the reversionary rights of the plaintiffs after the death of the alien or i,e,, defendant No, 1 .
7. The Additional District Judge, Jhang vide his impugned judgment and decree, dated 28-9-1980 affirmed the findings recorded by the learned Civil Judge, dismissed the appellants' appeal and left the parties to bear their own costs throughout. Hence this second appeal.
8. It is contended by the learned counsel for the appellants that during the pendency of the present appeal, West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) was amended and section 2-A was added to it through the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 (Punjab Ordinance No,XIII of 1983) published in the Punjab Gazette on 1-8-1983, commonly known as Punjab Amendment whereby the custom has been abrogated fully and it has been clarified that where before the commencement of 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 a Muslim, (a) he shall be deemed to have become, after such acquisition, an absolute owner of such land as if such land had devolved upon him under the Muslim Personal Law (Shariat) and (b) any decree, judgment or order of any Court affirming the right of any reversionary under custom or usage, calling in question such an alienation etc., shall be void, in executable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act. It is argued that it is, thus, manifestly clear that the custom now stands abolished in all forms and under section 2 of the above said Act, in all questions regarding succession, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims and the sale made by respondent No,3, admittedly a Muslim, in favor of the appellants as far back as in 1962, cannot be challenged by his nephews/ respondents Nos.1 and 2 the plaintiffs on the ground that the sale was against the custom and without any legal necessity and under section 2-A of the above said Act introduced through the above said Punjab Amendment, the declaratory decree passed on the basis of custom in favor of respondents Nos.1 and 2 by the trial Court is void, in-executable and of no legal effect as the same is contrary to Muslim Personal Law because the sale in question by Muslim owner in this case was complete, competent and final and not subject to any reversionary rights because in Islam, Muslims are full owners of the property owned by them.
9. The argument of the learned counsel for the appellants is correct and avoiding the repetition it is held that the sale of suit land made by respondent No,3 in favor of the appellants is complete and final and is not subject to any reversionary rights of the plaintiffs and the impugned declaratory decree of the trial Court in favor of the plaintiffs being contrary to Muslim Personal Law is declared to be void, in executable and of no legal effect. The implications of section 2-A of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 added through the Punjab Amendment (Ordinance ,XIII of 1983), were fully and exhaustively considered by the Honorable Supreme Court in Abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 SC 407) and it is now settled law, as held by the Honorable Supreme Court, that no restriction as visualized by custom would annul the alienation of property made by a Muslim. Further, reference can be made to Sultan Ali and others v. Mst. Mehro and others (1996 CLC 483), Haider Shah and 5 others v. Mst. Roshanaee and 9 others (1996 SCM R 901), Ghulam Muhammad v. Ghulam Qadir and 2 others (1995 SCM R 1830), Mst. Zainab Bibi and 2 others v. Muhammad Yousaf and 4 others (1995 SCM R 868), Khuda Baldish through his Legal Heirs v. Mst. Niaz Bibi and another (PLD 1994 SC 298) and Zahid and 6 others v. Muhammad Akram (1994 CLC 453).
10. Section 2-A(c) provides that all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith.
Therefore, the respondents' suit stood abated on the promulgation of above said Ordinance XIII of 1983 where under section 2-A was inserted in the West Pakistan Muslim Personal Law (Shariat) Act, 1962.
11. In view of the above mentioned, the appeal is accepted, the judgments and decrees of the Courts below are set aside and the suit of the deceased-respondents Nos.1 and 2 is dismissed as having abated on the promulgation of the West Pakistan Muslim Personal Law (Shariat) Act, (Amendment) Ordinance (XIII of 1983). The parties are, however, left to bear their own costs throughout.