Faqir son of Manjhee was occupancy tenant in suit land situated at Mauza Jigan, Tehsil Balakot, District Mansehra. On his death the occupancy rights devolved upon Ghazi and Jumma.
Inheritance Mutation No. 1022 was attested on 9-12-1926 in their favour. After the death of Jumma, his son Mehndia inherited the property and to this effect inheritance Mutation No. 1360 was attested on 2-6-1934. In the Revenue Record Ghazi had been shown as sole occupancy tenant but through correction Mutation No. 1331 attested on 12-5-1934, half of the occupancy rights were transferred to Jumma, Ghazi and Mehndia continued in possession of the suit land as occupancy tenants in equal shares till the death of Mehndia. On his death Ghazi succeeded as sole heir of the deceased Mehandia under the then prevailing customary law. Inheritance Mutation No. 1676 was attested on 21-12-1939 and since then Ghazi and his successors-in-interest remained in possession as occupancy tenants and after the promulgation of N.W.F.P. Tenancy Act, 1950 they became owners of the suit land by operation of law Respondents Mst. Khadija alias Mirza Noor and Mst.
Hajiran daughters of Jumma filed Suit No.98/1 on 26-11-1984 seeking declaration to the effect that plaintiffs and defendants Nos.19 to 21 being legal heirs of Mehndia deceased are owners to the extent of 19/24 according to their respective Shari share out of land bearing Khata No.4555i793-94 Khasras Nos.80, 1084, 1336 and 327 measuring 33 kanals, Khata No.438/752, Kh. No. 799 and 1055 measuring 4 Kanals, 12 Marlas and Khata Nos.455/5767, Kh. No. 749 measuring 13 Kanals, 5 Marlas situated in village Jagan, Tehsil Balakot and that Mutation No. 1676 attested on 2-12-1939 is wrong, against law being result of fraud and collusive is void and ineffective upon their rights. Permanent injunction and possession was also sought. The said suit was resisted by respondents/defendants by filing written statement. The said suit was, however, dismissed on 16-2-1992 by the learned Civil Judge, Balakot. The petitioners filed Appeal No.32/13 on 7-3-1992 which was accepted vide judgment and decree dated 10-3-1994. The judgment and decree passed by the learned Civil Judge, Balakot was reversed. Feeling aggrieved the petitioners/defendants have now filed revision petition in hand.
2. Mr. Shaukat A.I Khan, Advocate, the learned counsel representing the petitioners argued that findings of the learned Appellate Court are against the evidence on record and based on misreading and non-reading of evidence. At the time of death of Mehndia, he was issueless and was survived only
2. Mr. Shaukat A.I Khan, Advocate, the learned counsel representing the petitioners argued that findings of the learned Appellate Court are against the evidence on record and based on misreading and non-reading of evidence. At the time of death of Mehndia, he was issueless and was survived only by three sisters, namely, Mst. Khadija alias Mirza Noor, Mst. Hajiran and Mst. Zaib Noor daughters of Jumma. According to the customary law the sisters were not entitled for inheritance, therefore, the occupancy rights of Mehndia devolved upon Ghazi, his first cousin, Muslim Personal Shariat Application Act, 1935 was not applicable at the time of death of Mehndia.
3. It was further argued that Mst. Khadija aliass Mirza Noor never remained in possession of any portion of suit land as a co-sharer. In the Jamabandi for the year 1976-77 Exh. P.W. 1/7. She has been shown in possession of land measuring 1 Kanal, 1 Marla in Khasra No-1327 as vendee on the basis of Mutation No.2818 which was dismissed on 21-4-1983, therefore, in the subsequent Jamabandi she has not been shown in possession of the said land as "vendee". The learned Appellate Court while misreading and misinterpreting the Revenue Record has admitted Mst.
Khadija to be in possession of the property which is wrong and incorrect. She was wrongly treated as co-owner by the learned Lower Appellate Court.
4. It was further argued that the suit of the plaintiffs was hopelessly barred by time. Mutation No. 1676 was attested on 21-12-1939 whereas suit challenging the said mutation was filed on 26-11-1983 which was on the basis of it barred by time, hence deserved outright dismissal on the ground of limitation alone. The learned Appellate Court did not consider this important question.
5. On the other hand, Mr. Bashir Ahmad Chaudhry, learned counsel representing the respondents argued that according to provisions of Muslim Personal Shariat Application Act, 1935 and amendment made in 1939 in section 59 of Punjab Tenancy Act the occupancy tenancy devolved upon the three sisters of Mehndia also but they were deprived of their right by fraud and collusion.
Moreover, vide. Exh. P.W.3/1 a compromise was reached between the parties and the petitions have admitted the possession of Mst. Khadija alias Mirza Noor. They were co-sharers in the property in dispute having inherited the same from their brother Mehndia the limitation would not run against a co-sharer.
I have heard the learned counsel for the parties and perused the 1982 to Rabi 1981 Exh. P.W. 1/10 to Exh. P.W.1/19.
11. Muhammad Miskin, General Attorney of plaintiff was examined as A.P.W.2. Muhammad Ismail was examined as A.P.W. 3.
12. In rebuttal Shah Jehan Khan Maddad, Muharrir P.3 Balakot was examined as D.W.1 who stated that record regarding Mad. No.18, Roznamcha No.8, dated 11-5-1984 had been destroyed.
13. Muhammad Miskin defendant No. 1 appeared as his own witness and as attorney of defendants Nos. 2,3, 5 to 8 and 21. Noorullah S.O.K. Mansehra was examined on 18-3-1991 as A.P.W.1 who produced Goshwara 1904-05 to 1946-47, as A.P.W.1/1 and Goshwara regarding Khasras Nos.567, 600 and 608 w.e.f. 1904-05 to 1946-47 as A.P.W. 1/2. Ghulam Hussain was also examined as D.W.1.
14. The perusal of the Revenue Record specially Exh. P. W.2/2, Goshwara Mislay-haqiat for the year 1904-05 shows that Faqir son of Manjihee was in possession of land in dispute as occupancy tenant. He continued as such till 1923-25. In the Jamabandi for the year 1929-30, Ghazi and Jumma were shown in possession as occupancy tenants in equal share. In the Jamabandi for the year 1933-34, Mehndia son for Jumma was shown as occupancy tenant alone in Khasra Nos.567,600 and 608 on the strength of inheritance Mutation No. 1360 attested on 2-6-1934. 'Thereafter, in the Jamabandi for the year 1940-4.1 Ghazi was shown in occupation on the strength of inheritance Mutation No. 1676 attested on 2-12-1939. Ghazi has been shown in possession in the Jamabandi for the year 1946-47 Exh.P.W.l/1. The note on the said Jamabandi shows that vide Mutation No.371 attested on 3-8-1953 Ghazi became owner of the said land. Likewise vide Mutation No.640 attested on 27-10-1953 Miskin son of Ghazi became the owner, therefore, Jamabandi for the year 1953-54 Exh. P.W. 1/2 shows Miskin son of Ghazi as owner. The entries in favour of Miskin as owner continue up to date as is clear from Exh. P.W.1/3 to Exh. P. W.1/7. In the Jamabandi for the year 1976-77 Mst.
Mirza Noor has been shown in possession of land measuring 1 Kanal, 1 Maria in Khasra No. 1327 on the basis of Mutation No.2818 but this mutation was dismissed on 21-4-1983 as is clear from the note given on Exh. P.W. 1/7. She was not shown in possession as co-owner but was shown in possession on the basis of the said mutation which, as mentioned above, stands dismissed.
Therefore, her possession was not as co-sharer in the suit land but was an entry in her own right.
15. The argument of the learned counsel for the petitioners that the suit filed by plaintiffs was hopelessly bared by time has force in it. Mutation No. 1676 was attested on 21-12-1939 whereas the respondents Nos. 1 and 2 filed the suit on 26-11-1983, Suit for declaration under Article 120 of the Limitation Act could be filed within a period of 6 years. The suit was brought by the respondents Nos. 1 and 2 after lapse of 44 years and no explanation worth the name has been given either in the plaint or in the statement by the plaintiffs as to why the suit was filed after lapse of 44 years. The Revenue Record shows that the petitioners were continuously in possession of the suit land since 1939 and they have become owners by efflux of law under N.W.F.P. Tenancy Act, 1950 and entries in the Revenue Record were made showing them as the owners. The respondents Nos. 1 and 2 did not make any protest or representation at the time when the petitioners were shown as owners in the Revenue Record, in the jamabandis of 1953-54 Exh. P. W.1/2. I, therefore, hold that the suit of the plaintiffs/respondents 1 and 2 was hopelessly barred by time and was rightly dismissed as such.
16. The argument of the learned counsel that Mst. Khadija alias Mirza Noor and Mst. Hajira were not entitled for inheritance pf occupancy rights according to customary law at the time of death of Mehndia, therefore, Ghazi, first cousin of Mehndia inherited the occupancy rights under the customary law and the Muslim Personal Shariat Application Act, 1935 was not applicable at the time of death of Mehandia, has no force at all. It is by now settled law that with coming into force of the 1935 Act custom was no longer the rule of decision and if succession opened after 6th December, 1935 the rule of decision was to be Muslim Personal Law because N.W.F.P. Muslim Personal Law (Shariat Application Act, 1935) was to be given retrospective effect and where a dispute comes before a Court of law with respect to succession to the estate of the deceased Muslim, the deceased will be deemed to have died under the domain of Muslim Law even if the death has taken place before the coming into force of N.W.F.P. Muslim Personal Law (Shariat)
Application. Act, 1935. Wisdom in this respect has been drawn from "Habibulah Jan and 3 others v.
Muhammad Hassan Khan and 6 others" (PLD 1991 SC 93) and "Rehman Shah and others v.
Nasrullah and others: (1999 M LD 249). The effect of the Act is that it has altered the course of succession in so far as to make the ordinary rule of Muhammadan Law applicable and to exclude the operation of customs. Where, therefore, the succession opened after the Act came into force, a party could not only rely upon any decision based upon the rule of customs given in his favour before the Act came into force and the succession would be governed by rule of Muhammadan Law but the said claim can only be entertained if the law of limitation offered no impediment. If claim to the estate of deceased is preferred under the Muslim Personal Law (Shariat) Application Act, 1935 and the claim is under the bar of limitati6h, the bar of limitation would prevent the claim from being entertained. In the case in hand, as discussed above, Mutation No. 1676 was attested on 21-2-1939 whereas respondents Nos. 1 and 2 filed their suit on 26-11-1983, i.e. After a period of 44 years. They were aware of the Mutation No. 1676 but they did not challenge the same. The petitioners were continuously in possession of the suit land since 1939 and by efflux of law under Tenancy Act, 1950 they became the owners and entries regarding their ownership were incorporated into Revenue Record. In Jamabandi for the year 1953-54 Exh. P.W.1/4 they were shown as owners but still the respondents Nos. 1 and 2 kept mum, their claim is, therefore, hopelessly barred by time and the learned Trial Court had rightly dismissed their suit. I, therefore, accept the revision petition in hand and set aside the impugned judgment and decree passed by the learned District Judge, Mansebra dated 10-3-1994 and restore the judgment and decree of the learned Trial Court dated 16-2-1992. Parties are left to bear their own costs.