MUHAMMAD YUNUS SURAKHVI, J.----This appeal, by way of leave of the Court, has been preferred against the judgment and decree passed by the High Court on 23rd April, 1999, whereby the appeal filed by the appellants, herein, against the judgment and decree passed by the District Judge Rawalakot was dismissed.
2. The necessary facts, culminating into the filing of the present appeal, are that appellants, herein, filed a suit on 17-12-1991, in the Court of Sub-Judge Rawalakot seeking cancellation of Mutation No.96 attested on 5-5-1956 with respect to the suit-land comprising Khata Nos.7, 6 and 9, situated in Dahmni, Tehsil Rawalakot. It was alleged in the plaint that suit land was in the ownership of Muhammad Afzal, the predecessor-in-interest of appellants, and respondent who died in 1948 before the promulgation of Muslim Personal Law in Azad Jammu and Kashmir as such the defendant respondent, the daughter of deceased, was deprived of the inheritance. It was further alleged in the plaint that the aforesaid mutation was attested under Muslim Personal Law and against the custom under which the daughter/female member was not entitled to the inheritance.
The trial Court as well as the first appellate Court and the High Court came to the conclusion that Muhammad Afzal, the predecessor-in-interest of the parties, was governed by Muslim Personal Law in the matter of inheritance and not by the custom.
3. In support of appeal it has been vehemently contended by Sardar Sayab Khalid, the learned counsel for the appellants, that the Courts below have misread the evidence and thus, the conclusions were unlawfully drawn by the High Court as well as the Courts below while appreciating the evidence in its true perspective. The learned counsel drew our attention to the evidence of plaintiffs' witness Muhammad Siddique and the statement of Muhammad Ashraf, one of the plaintiffs. Muhammad Siddique, the witness for the plaintiffs, stated in his cross-examination that he knew nothing about the attestation of mutation of the estate of deceased Muhammad Afsar Khan however, to a Muslim Family the estate of the deceased used to devolve upon his hire under the Muslim Personal Law which was enforced after coming into being of Pakistan. Previously there used to be custom. Muhammad Ashraf, one of the plaintiffs, has stated in his statement that when his father Muhammad Afzal Khan alias Muhammad Afsar Khan died, at that time the females were not entitled to any inheritance of the deceased. The learned counsel on the strength of aforesaid statements submitted that the defendant respondent Rehmat Jan, the daughter of deceased Muhammad Afzal Khan, was, thus, not entitled to any inheritance left by her father. The learned counsel also contended that issues have not been framed according to the pleadings of the parties.
4. Controverting the arguments raised by the learned counsel for the appellants, Sh. Abdul Aziz, the learned counsel for the respondent, submitted with all the emphasis that the plaintiff-appellants miserably failed to allege and prove the customs in the matter of inheritance of Muhammad Afzal Khan deceased. The learned counsel submitted that there was a concurrent finding of fact recorded by the trial Court and affirmed by the first appellate Court and the High Court that the parties at the relevant time were governed by Muslim Personal Law and not by custom. The learned counsel for the respondent submitted that the Courts below as well as the High Court committed no error in recording the finding that the plaintiffs and defendant were governed by Muslim Personal Law at the relevant time. The learned counsel for respondent maintained that mutation in question was attested in 1956, whereas the suit was filed in 1991 to challenge the said mutation which on the face of it is hopelessly time-barred.
5. After hearing the respective contentions of the learned counsel for the parties and perusing the record it may be stated that the witness for the plaintiff Muhammad Siddique nowhere mentioned in-his statement that what was the custom prevalent between the parties. Similarly Muhammad Ashraf Khan, plaintiff made a general statement that prior to the partition the custom was prevalent. He did not point out any detail as to whether the parties before promulgation of the Muslim Personal Law were governed by the custom. It may also be pointed out that the initial presumption is in favour of the application of Muslim Personal Law unless the customs is alleged and proved strictly. In our considered view the appellant-plaintiffs miserably failed to allege and prove the customs so as to deprive the defendant Rehmat Jan the daughter of the deceased from inheritance of her father.
6. It is also pertinent to take note of the fact that it has been observed by the trial Court that if the females of the parties were deprived of the inheritance due to custom then how Mst. Nosha Begum the widow of Muhammad Afzal deceased joined hands with other plaintiffs and filed the suit against the defendant-respondent. On the one hand the claim of the plaintiffs rests on the plead that females of the parties were not given the share of inheritance but on the other hand the widow of deceased Muhammad Afzal Khan claimed to be one of the owners of the suit-land. This stand being contradictory to the evidence adduced by the parties cannot be accepted as correct.
7. Even otherwise the suit filed by the plaintiff-appellants, on the face of it, appears to be barred by limitation. The mutation in question was attested in 1956, whereas the suit to challenge the same was filed in 1991, nearly after 35 years. The only explanation given by the plaintiffs in para. No.3 of their plaint is that the mutation in question was got sanctioned in collusion with the revenue official and the plaintiffs had no knowledge about the same. The above stated averment on the face of it appears to be unreasonable. The mutation in question was sanctioned in favour of plaintiff and Mst. Nosha Bi, the widow of deceased, in 1956. Thus, in 1956 at least Mst. Nosha Bi, widow of deceased, and one of the plaintiff's had the knowledge of the said mutation. Therefore, it could not be said by any stretch of imagination that the mutation in question was not within the knowledge of plaintiffs.
8. In the light of what has been stated above, findings no force in this appeal, it is hereby dismissed with costs.