' Suit for possession filed by the petitioners against the respondents was allowed by the learned trial Court, vide judgment and decree dated 27-1-1980. However, on appeal, filed by the respondents, this judgment and decree has been set aside and resultantly, the suit of the petitioners has been dismissed on 24-6-1980.
2. Briefly stated the facts of the case are, that on 10-5-1974, petitioners brought a suit for possession with regard to the land described/detailed in the plaint. It is the case of the petitioners that 400 Kanals of land situated in Chak No, 114 DNB, Yazman was allotted to their grandfather, Allah Din under the Abad Kari Scheme in the year 1931 and before the year 1950, Allah Din, had paid the entire instalments of the allotment and had become the legal owner of the aforesaid property, but for certain reasons, Pattanama was not executed in his favour. In the lifetime of Allah Din, his two sons namely Chiragh Din and Muhammad Hussain had died, while Rehmat Ali son and Mst. Zaneb Elahi his daughter and the wife were alive. Allah Din, under the impression that in case of his death, legal heirs of his deceased sons, the plaintiffs, may not be deprived of from inheriting his estate, moved an application under the provisions of section 19 to the Colonization Department, seeking permission for making a gift of 1/4th each share in favour of the legal heirs of each of deceased son, though there was no requirement for moving such application. However, vide Exh.P-1, statement before the Revenue Officer dated 5-1-1951, Allah Din, had gifted 2/4th share in favour of plaintiffs, who were minors at that time; 1/4th share to Rehmat Ali, whereas 1/4th was retained by Allah Din, till his lifetime, which ultimately was to be passed on to his daughter Mst. Zaneb Elahi and his widow.
' Thus, on the basis of above, it is stated that plaintiffs were given about 200 Kanals of land, out of the aforesaid 400 Kanals, but as the plaintiffs were minor, under the guardianship of their grandfather, therefore, the physical delivery of possession under the gift was not necessary, anyhow, the plaintiff remained in joint possession of the suit property, alongwith the respondents, after the &all of Allah Din, respondents used to pay them the share of produce, till 1971 and thereafter, they refused to pay the same and when the petitioners/ plaintiffs approached the Collector in this regard, it transpired that defendants/respondents had got Mutation of Inheritance No,19, dated 5-5-1958, attested in their favour with regard to the entire estate of Allah Din. This mutation was challenged through the aforesaid suit.
3. Respondents/defendants resisted the suit and on the basis of pleadings of the parties, the learned trial Court was pleased to frame the following issues:-
(1) Whether the suit is within time? OPP
(2) Whether the suit had been correctly valued for the purpose of court-fee and jurisdiction? If so, what is the correct valuation? OPP
(3) Whether Allah Din deceased had deposited all the instalments and thereafter, made a complete gift of his land and Mutation No,19, attested on 5-5-1958, in favour of defendants is void to this extent?
(4) Relief.
4. After conclusion of the trial, learned Civil Judge, decided all these issues in favour of the plaintiffs and decreed the suit. It was held that as the petitioners were validly gifted the suit land had been cultivating suit land even after the death of Allah Din and were getting the share of produce, till 1971, when it was refused by respondents, they attained the knowledge about the mutation in the year 1972, when they initiated proceedings before the Collector, thus the suit brought in the year 1974, challenging the mutation was well within time. On Issue No,3, it was concluded that from Exh.P.1 and Exh.P.2, i,e, statement of Allah Din and Rehmat Ali, before the Revenue Authorities, the gift has been proved. Petitioners and defendants were put in joint possession of the property and therefore, gift was complete and thus petitioners being co-owners of the suit property, were entitled to the possession of such land, which was gifted to them, by their grandfather. Accordingly a decree was passed in favour of the plaintiffs/petitioners. Against the 'above, respondents preferred an appeal, the learned Appellate Court has reversed the findings on Issues Nos.1 and 3 and has held that the suit filed on 10-5-1974 challenging the mutation dated 5-5-1958, was barred by time and that the petitioners have failed to show that a valid gift was made in their favour. Hence this revision.
5. Learned counsel for the petitioners has argued that as per Exh.P.1, statement of Allah Din, before the Revenue Authorities, a complete gift was made in favour of the petitioners qua 200 Kanals of land; this statement was accepted by Rehmat Ali, predecessor-in-interest of some of the respondents vide his statement Exh.P-2, when he acknowledged the validity of the gift and had expressed no objection thereupon. Delivery of possession in the facts and circumstances of the case, was not relevant, because plaintiffs were minors at that time as the gift was being made by their grandfather, thus physical change of possession was of no significance. On the basis above, it is submitted that as a valid gift has been made in favour of the petitioners, thus they were in joint possession of the property and had also been cultivating the land and deriving the benefit therefrom till 1971, when respondents refused to give their share, giving rise the cause of action to the plaintiffs to file the present suit; as the petitioners have been in joint possession as co-sharers and had learnt about the impugned mutation in. 1971, therefore, suit for possession brought in 1974, was well within time.
6. I have heard learned counsel for the parties. The key question involved in this case is, whether Allah Din, had gifted the suit property measuring 200 Kanals in favour of the petitioners. Exh.P.1 which is the statement of Allah Din has been perused and as per contents of the same, no gift has been made, rather a wish has been expressed that Allah Din intended to gift 1/4th share each in favour of the plaintiffs, who were the children of his deceased sons. Likewise, the statement of Rehmat Ali, (Exh.P.2), is also to the same effect. From the reading of these documents, it is not at all proved on record that Allah Din, had gifted the property in clear and unequivocal terms, rather as mentioned above, he only expressed his pious wish. Moreover, it is proved on the record that 400 Kanals of land, was allotted to Allah Din, under the Abad Kari Scheme and this allotment was joint.
Khata was never separated and, therefore, according to the principle of Mohammadan Law, the gift of undivided property is not permissible. On this account, also any alleged gift made in favour of the petitioner, was invalid. Learned Appellate Court has taken pain in analyzing the evidence on record, and on the basis of proper reading of Exh.P.1 and Exh.P.2, which are the basic documents produced on record by the petitioners to prove the factum of gift, has given correct finding of fact, which does not suffer from any misreading or non-reading.
7. With regard to the question of limitation, suffice it to say that the petitioners were not validly gifted the suit property, therefore, the question of being in joint possession as co-owners does not arise. Mutation No,19 was sanctioned on 5-5-1958; petitioners remained silent for a considerable period of time and thus after expiry of 12 years, could not agitate the matter by bringing a suit for possession. Their earlier possession was not in their own rights as co-owners of the property, B therefore, to say that for co-owners to seek possession of the specific portion of their share, no period is prescribed is not well-founded. The view taken by the learned Court. In appeal that the suit of the petitioners is barred by time is unexceptionable.
8. Learned counsel has alternately argued that according to the Mohammedan Law, petitioners being legal heirs of Allah Din were entitled to inherit their share to the extent of 200 Kanals because their fathers had earlier demised during the lifetime of Allah Din, and thus by virtue of section 4 of the Muslim Family Laws Ordinance, 1961 and section 2-A of the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983) suit property would be deemed to be owned by the last male owner i,e, Allah Din and on opening of his succession, petitioners would have inherited the estate to the extent of 200 Kanals.
9. I am afraid, this case has never been set up by the petitioner, in their plaint. It is settled law that no person can be allowed to plead beyond the scope of his pleadings. Accordingly neither any issue was framed by the Court nor this ground has been taken in the memo. Of appeal nor in revision before this Court.
' When confronted, the answer of the learned counsel for the petitioner, that this being a pure question of law, can be raised at any stage of the proceedings, suffice it to say that this is not a pure question of law, however, keeping in view the law laid down in 1997 SCMR 281 Nazir Ahmed etc. v. Abdullah, etc. Wherein it has been held: "In cases, which involve inheritance inter se among the legal heirs, Court should make efforts to ensure that no legal heir is denied of his legal share in the estate of the deceased concerned, on a technical ground such an approach will also be in consonance with the Injunctions of Islam" I have decided to dilate upon this plea on the basis of the admitted facts of the case and law prevalent at the relevant time. Admittedly, Allah Din, died somewhere in 1958, whereupon the Mutation of Inheritance No,19 was sanctioned on 5-5-1958, at the time when his succession opened. The plaintiffs-petitioners being children of the predeceased sons of Allah Din under Mohammedan Law, could not inherit to the estate left by him. However, the plea of the learned counsel for the petitioners that by enforcement of section 4 of the Muslim Family Laws Ordinance, 1961 and section 2-A of the West Pakistan Muslim Personal Law (Shariat)
Act (Amendment) Ordinance (XIII of 1983), plaintiffs are entitled to inherit the estate of the deceased. It may be stated that the provisions of section 4 have no retrospective effect. The entitlement to the succession is to be determined at the time when succession opened. In the instant case, Allah Din, had died before 1958, immediately on his death, succession opened and according to the Mohammedan Law the petitioners as being children of his predeceased sons, were not entitled to inherit the estate of the deceased. The enforcement of section 4 of the Act (ibid), having no retrospective effect and would not affect the past and closed transaction, as in the instant case. Reference in this behalf, can be made to the judgment reported as 1990 SCMR 1677 (Manzur Ahmed etc. v. Abdul Khaliq etc.) As regards the application of section 2-A is concerned, it may be pertinent to state that this provision is only applicable to the agricultural land acquired under the custom and has no relevance to the succession under the Mohammedan Law, which had opened much before the enforcement of section 2-A. The judgments referred tb by the learned counsel of the petitioners 1991 SCMR 515 (Muhammad Qasim Khan, etc. v. Mst. Mehbooba etc.) 1983 SCMR 80 (Mst. Began v. Bai) 1988 SCMR 293 (Hakim Ali etc. v. Barkat Bibi etc.) 1992 SCMR 82 (Sardar v. Mst. Nehmat Bi, etc.) and PLD 1987 Lah. 654 (Mst. Naseeban etc. v. Maqbool Ahmed) are distinguishable on their own facts; all these judgments relate to the customary law. In the instant case, there is no issue between the parties with regard to the custom.
' In the light of above, I do not find any error in the judgment and decree of the Appellate Court, which- is based upon proper reading of the evidence, therefore, by dismissing this revision petition, the judgment and decree of the Court in appeal is upheld. No order as to costs.