MAULVI ANWARUL HAQ, J. -- The respondents Nos. 1 to 5 filed a suit against the petitioner and one Mst. Azmat Bihi naming the remaining respondents as proforma defendants being their co-heirs. It was alleged in the plaint that the plaintiffs/respondents are the children of Mst. Janat Bibi, a daughter of Bhikey Khan who was the last male owner of some land in Village Panam, Tehsil Ghar Shankar, District Hoshiyarpur. He had a son Ghulam Muhammad who had predeceased him. On the death of Bhikey Khan the land was mutated in the name of his widow Mst. Janat Bibi as a limited owner. On the death of said Mst. Janat Bihi the land was mutated in favour of Mst. Azmat Bihi as a maintenance holder. In the wake of independence of the country Mst. Azmat Bihi came to Pakistan and she filed a Claim Form on the basis of said holding against which claim she was transferred the suit property on an RL-II. She proceeded to alienate the suit land in favour of the present petitioner, who is her real brother, vide mutation No. 229 attested on 11.3.1982. The plaintiffs/respondents sought a declaration that the said mutation is void and also sought a decree for possession of the suit land. The petitioner and said Mst. Azmat Bibi filed a written sale- deed in which she stated that the land in the said village was exclusively owned by her. She denied the relationship of the plaintiffs/respondents with the said Bhikey Khan. The learned Trial Court framed issues. The relevant being issue No. 1 and 6 are reproduced here:-
(1) Whether defendant No. 1 was in possession of land as limited owner ? OPP
(6) Whether the impugned hiha is illegal, void and ineffective upon the rights of the plaintiff?
The learned Trial Court found issue No. 1 against the plaintiffs and an adverse finding followed consequently on issue No. 6 and the suit was dismissed on 23.6.1998. The plaintiffs/respondents tiled an appeal which was heard by a learned Additional District Judge, Daska, who allowed the same vide judgment and decree dated 19.12.1994 whereby he decreed the suit of the plaintiffs/respondents to the extent of suit land.
2. Ch. Inayat Ullah Khan, learned counsel for the petitioner argued that the learned Additional District Judge has misread the evidence and misconstrued the law while reversing the findings of the learned Trial Court on issues Nos. 1 and 6.
3. I have gone through the documents appended with the C.R. With the assistance of the learned counsel. In my opinion the impugned judgment is supported by the evidence on record. Ex.P-5 is the copy of pedigree tahlt of Village Panam, Tehsil Ghar Shankar, District Hoshiyarpur. According to this pedigree table the land of Bhikey Khan was mutated in favour of Jewan, his widow, who is stated to have died and Mst. Azmat Bibi is recorded to he in possession of the said land. Ex.P-1 is the copy of RL-II which describes the said lady as daughter-in-law of Mst. Jewan and she is stated to he having a claim against land in the said village in satisfaction whereof the suit land was transferred to her Ex. P-2 is the copy of register haqdaran zamin and again Mst. AzMat Bihi is described with reference to the said relationship to Mst. Jewan. To the similar effect entries are made in Ex.P-3 and Ex.P-4. On the contrary, the evidence led by the petitioners' side comprises of statement of Mst. Azmat Bihi. It may he stated here that in the plaint the plaintiffs/respondents had pleaded in detail the devolution of the suit property with reference to the pedigree table and had averred that the land being held by Mst. Azmat Bihi was land of said Bhikey Khan and she was holding it as a maintenance holder after the death of widow of Bhikey Khan who was a limited owner. In reply the petitioner or the said Mst. Azmat Bihi had not stated at all as to on what basis this allottee claims her self to he the exclusive owner. In her statement as DW-,1 she stated that the land in the said village was purchased by her. In her cross-examination she expressed ignorance as to who was the vendor of the land purchased by her. She also had nothing to say when questioned as to whose wife or daughter she represented herself at the time of the alleged sale. No document evidencing the sale has been placed on record. I asked the learned counsel as to why the claim verification order passed by the Rehabilitation Authority was not produced, but he had no reply to offer. Only inference that can he drawn is that had the said order been produced, it would have gone against the plea of Mst. Azmat Bihi raised for the first time in the course of her statement as DW-I. It may he mentioned here that the tenor of the judgment of the learned Trial Court, also shows that he restrained himself from giving appropriate finding on the issue in view of the judgment in the case of Mehboo Alam Shah and others Vs. Mst Noor Begum and others (1987 CLC 1193), The learned, Trial Court, however, lost sight of the fact that in the said case the description was as widow which is a common description whereas the description in the present case in the overall circumstances or the case is unusual and tends to support the plea of the plaintiffs/respondents that she was daughter-in-law of Bhikey Khan and that the land was being held by her as a maintenance holder. In the absence of any evidence to the contrary, the plaintiffs/respondents led sufficient evidence to prove their case as pleaded by them and the evidence was rightly believed by the learned Additional District Judge.
4. The learned counsel then argued that the suit was barred by time as the plaintiffs/respondents tailed to make an application within the time prescribed under Section 2 of the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act XXV of 1975. In this respect reliance has been placed upon a case titled Mst. Salina Bibi vs. Mst. Jan and another (PLD 1987 Lahore 553).
1 do not inclined to agree with the arguments advanced by the learned counsel as no such objection was taken in the written statement and no issue was framed. In any case, my learned brother Mian Nazir Akhtar, J., took a different view in the case of Munshi Khan Vs. Mustay Khan and others (1994 CLC 2190). In this later case the suit was tiled after the application, contemplated by the said provisions of law, was dismissed. His Lordship was of the view that it was only a Civil Court who could decide the delicate questions involved as to the applicability of custom and the manner of devolution of the property. Incidentally, this later judgment also answers the argument of the learned counsel based on the case of Mehboob Alam Shah supra. In the later judgment his Lordship interpreted the entry "widow is in possession" to mean that the widow was in possession as a limited owner. In any case, the provision of law, relied upon by the learned counsel does not prescribe limitation for a suit of instant nature and in the absence of any objection of limitation, the learned Courts below were not hound to act under Section 3 of the Limitation Act, 1908. The suit was well within time. No order point has been raised. The civil revision petition is accordingly dismissed in limine.