' Mst. Faiz Elahi predecessor-ininterest of the present petitioners filed a suit for declaration to the effect that Noor Ahmad was the original owner of the land detailed in the suit and that upon his death, he was survived by two sons and two daughters namely Bagh Ali, Mehboob Alam, Mst. Faiz Elahi herself and Mst. Sahib Nishan. Defendants Nos.1 to 7 in the suit are the legal heirs of said Bagh Ali and Mehboob Alam while the other defendants are the legal heirs of Mst. Sahib Nishan. It was also averred in the plaint that in the matters of inheritance, the parties were governed by Shariat.
She also stated to be in possession of her share and thus, claimed to be owner in possession of 1/6 share in the estate of her father Noor Ahmad.
2. Defendants Nos.1, 2 and 4 to 7 submitted written statement in which the suit was contested both on law and facts of the case. Under preliminary objections, it was contended that the suit was time-barred as it challenged mutation of inheritance dated 28-8-1930. It was also contended that the aforesaid mutation was attested in the light of the judgment and decree by the Chief Court dated 26-3-1930 and thus, the suit was not maintainable. On facts, the said defendants denied that, the plaintiff was a daughter of Noor Ahmad. The possession of the plaintiff was also denied.
The defendants, however, did not contend in the written statement that the parties were governed by custom.
3. From the pleadings of the parties, the following issues were framed:--
(1) Whether the suit is within time? OPP.
(2) Whether this suit cannot proceed in view of the preliminary objection No,2 of the written statement? OPD.
(3) Whether this suit is not maintainable in its present form? OPD.
(4) Whether the suit has not been correctly valued for the purposes of court-fee and jurisdiction? If so, what is its correct valuation? OPD.
(5) Whether the plaintiff and defendants Nos.8 to 13 are entitled to inherit the property of Noor Ahmad deceased as the legal heir? OPP.
(6) Whether the plaintiff is owner in possession of the suit land on the grounds as contained in the body of the plaint? OPP.
(7) Whether the plaintiff is entitled to the relief of declaration and permanent injunction as prayed for? OPP.
(7-A) Whether the Mutation No,2, dated 28-8-1930 is illegal, void, based on fraud, collusive and inoperative against the rights of the plaintiff on the grounds as contained in the body of the plaint?
OPP.
(8) Relief.
' It may here be noted that the issues as framed did not contain any issue whether Noor Ahmad deceased was governed by Shariat Law or by custom.
4. The parties went on trial in accordance with the issues as framed above. The learned trial Court decided Issues Nos.5, 6, 7 and 7-A together and after appreciating the evidence both oral and documentary produced by the parties came to the following conclusion:--
(a) That Mst. Faiz Elahi was the daughter of Noor Ahmad from his wife Mst. Asmat Bibi;
(b) that the parties in the matter of inheritance were governed according to the Shariat Law;
(c) that Mutation, dated 28-8-1930 was attested in the absence of the plaintiff and was also against the law and factual position;
(d) that the judgment and decree of the Chief Court, dated 26-3-1930 was ineffective upon the rights of the plaintiff as the plaintiff or her mother were not a party in those proceedings; and
(e) that the plaintiff was in possession of the property in question.
5. Upon Issue No,1 regarding limitation, the learned trial Court held that the mutation dated 28-8- 1930 was itself illegal and void. The contention of the plaintiff that the mutation was not in her knowledge was accepted and the suit was found to be within time. Upon Issue No,2 as also found under Issues Nos.5 to 7-A, it was held that the judgment of the Chief Court was ineffective upon the rights of the plaintiff and section 11, C.P.C. Was not attracted. Issue No,3 was decided in favour of the plaintiff on the ground that she was held to be in possession and thus, the suit was maintainable in its present form. Issue No,4 regarding valuation for the purposes of court-fee and jurisdiction was decided against the defendants. As a result, vide judgment and decree dated 19-6-1982, the leaned trial Court decreed the suit In favour of the plaintiff.
6. The respondents filed an appeal against the said judgment and decree. The appeal was decided on 12-12-1984 in the manner that the Appellate Court framed an additional Issue No,7-B to the following effect: (7-B) Whether Noor Ahmad deceased was governed by Shariat Law in the matter of inheritance and succession and the daughters were given inheritance? If so, with that effect? OP Plaintiff
7. The suit was remanded to the learned Civil Judge to record the evidence of the parties and after recording his findings on this issue to remit the file to the First Appellate Court. It may at this stage be pointed out that West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983) had already come into force w,e,f, 1st of August, 1983 i,e, much before the passing of the above order by the learned Additional District Judge on 12-12-1984. The effect of the provisions of Ordinance XIII of 1983 shall be discussed at the proper stage.
8. Upon remand, the learned trial Court recorded evidence on Issue No,7-B and after consideration of the oral and documentary evidence upon this issue came to the conclusion that the predecessors of the plaintiff were not governed by Shariat in the matter of inheritance and succession. This order of the trial Court was passed on 27-1-1985. Thereafter, the Appellate Court, upon receipt of this order of the learned trial Court upon Issue No,7-B reversed the findings of the trial Court. On Issue No,1 it was held that the suit was time-barred. On Issue No,2 the First Appellate Court concurred with the trial Court that the judgment of the Chief Court was ineffective upon the rights of the plaintiff. Upon Issue No,4, it was held that as the plaintiff Mst. Faiz Elahi was found to be out of possession of the time of filing of the suit, therefore, the suit was not maintainable and was also not valued properly for the purposes of court-fee and jurisdiction. Upon Issues Nos.5, 6, 7 and 7-A, the findings of the trial Court that Mst Faiz Elahi was the daughter of Noor Ahmad was upheld but she was not found entitled to inheritance of Noor Ahmad under the customary law. The findings of the trial Court holding the plaintiff to be entitled to inheritance were set aside. Upon Issue No,7-B, the learned First Appellate Court concurred with the findings of the learned lower Court that Noor Ahmad deceased was not governed by Shariat Law in the matter of inheritance but was governed under custom. As a result, the appeal was accepted vide judgment and decree, dated 21-3-1985 and the judgment and decree, dated 19-6-1982 of the trial Court was set aside.
9. At the very outset, before discussing the other issues, it is found that the learned Additional District Judge while passing his earlier judgment and decree dated 12-12-1984 in which he proceeded to frame additional .Issue No,7-B to the effect, "whether Noor Ahmad deceased was governed by Shariat Law in the matter of inheritance and succession and the daughters were given inheritance, if so with what effect," was in complete ignorance of the fact that the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983) had already been promulgated w,e,f, 1st of August, 1983. Section 2-A of the said Ordinance provided as under:-- - "S.2-A. Succession prior to Act IX of 1948.---Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the 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, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat);
(b) any decree, judgment or order of any Court affirming the right. Of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act;
(c) 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: ' Provided that nothing herein contained : shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees."
' Thus, by the force of section 2-A notwithstanding any custom or usage or decree, judgment or order of any Court any male heir who had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim shall be deemed to have become, upon such acquisition, an absolute owner of such land as if such land has devolved on him under Muslim Personal Law (Shariat). In view of this it was wholly redundant for the First Appellate Court to have framed Issue No,7-I3 and to have remanded the case to the learned trial Court for its decision upon this issue.
' Consequently, the decision of the trial Court dated 27-1-1985 upon this issue regardless of the evidence which was produced upon this Issue, and the finding of the First Appellate Court in its judgment dated 21-3-1985 upon Issue No,7-B being in violation of the provisions of section 2-A of Ordinance XIII of 1983 are wholly illegal, without authority, null and void. Reliance is placed upon Hakim Ali and others v. Barkat Bibi and others 1988 SCM R 293 wherein it was held that West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 being applicable and provisions of section 2-A being retrospective in effect, last male holder had to be treated as one who at the time of his death was governed by Muslim Personal Law. In the case of Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407, it was held that a person having inherited agricultural land under custom before 15-3-1948 shall be deemed to have inherited such land under Muslim Shariat Law and was therefore, its full owner. In the case of Ismail and another v.
Ghulam Qadir and others 1990 SCM R 1667, the effect of section 2-A of Ordinance XIII of 1983 was elaborated and it was held that a deceased Muslim having died before the enforcement of Act IX of 1948 when customary law was in vogue in matters of succession, would be deemed to have absolute owner of the land which would devolve upon his legal heirs in accordance with the Muslim Law share. In the case of Mst. Afzal Nishan and others v. Ghulam Qadir and others 1992 SCM R 1773 wherein again it was held that under the provisions of section 2-A of Ordinance XIII of 1983, the last full owner would be deemed to have inherited under Muslim Personal Law and his heirs after his death would inherit in accordance with Muslim Law whether they were male or female heirs.
10. In view of this legal enunciation, it is now settled principle of law that in cases governed by section 2-A (ibid), the last male owner shall be deemed to be governed by Muslim Shariat Law and upon his death, his property shall devolve upon his legal heirs. In the instant case, the petitioner shall be entitled to her Muslim Law share of 1/6th in the estate of her father Noor Ahmad.
11. Upon the question of limitation, Exh.P.1 and Exh.P.2 depict the possession of Zulfiqar and Shah Nawaz sons of Mst. Faiz Elahi over the property in question. Their possession shall be deemed to be possession of a co-sharer. Reliance is placed upon the cases of Muhammad Qasim Khan and 6 others v. Mst. Mehbooba and 6 others 1991 SCM R 515 and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 for the proposition that a suit by co-sharer in possession shall not be barred by limitation.
12. Apart from these contentious issues, it is observed that the findings of the learned First Appellate Court and the learned trial Court being concurrent upon Issue No,2, it is not open to challenge in revisional jurisdiction. The findings of both the learned lower Courts that. Mst. Faiz Elahi was the daughter of Noor Ahmad was concurrent and hence binding upon the parties.
13. The cumulative effect of the above discussion is that the Civil Revision is accepted and the judgment of the learned trial Court dated 27-1-1985 as well as the judgment and decree of the learned First Appellate Court dated 21-3-1985 dismissing the suit of the petitioner are set aside. As the petitioner has proved to be the daughter of Noor Ahmad deceased and is held to be governed by Muslim Shariat Law, the original judgment and decree of the learned trial Court dated 19-6-1982 is restored. The parties to bear their own costs.
Revision accepted/