One Rajwali, predecessor-in-interest of the present petitioners, who died in the year 1939, was owner of agricultural land, which was transferred in favour of his widow Mst. Gahran and she out of the said property, had transferred 146 Kanals, 6 Marlas of land to Amrit, predecessor-in-interest of the respondents, who died during the pendency of this petition and his legal heirs had been impleaded as respondents. Fateh Muhammad son of Rajwali, Mst. Anaran and Ghuffar Khan,' widow and son of Banaras respectively, filed a suit for declaration to the effect that they were the reversionary of Rajwali and their reversionary right would not be affected after the death or re- marriage of the alienor namely Mst. Gahran. It is an admitted position that Mst. Gahran had succeeded Rajwali under custom and she had no right to alienate the land in dispute, therefore, the sale in favour of Amrit defendant was not binding upon the rights of the plaintiffs. The trial Court vide its judgment and decree dated 18-5-1954 decreed the suit for declaration in favour of the plaintiffs to the effect that the sale of the land in dispute made by Mst. Gahran in favour of Amrit through Mutation No,2505.Was null and void and the reversionary rights of the plaintiffs in the land in dispute after re-marriage or death of Mst. Gahran would not be affected.
2.Mst. Gahran died on 26-10-1985 and after her death, the present petitioners had instituted a suit for possession on 22-12-1985 with regard to the land measuring 146 Kanals, 6 Marlas, out of the total land measuring 500-Kanals, 6-Marlas, belonging to Rajwali deceased, situated in Khasra Nos.
601, 767, 1453, 1652, 1667, 1668, 1670, 1703, 1718, 1738, 1745, 1739, 1801, 1803, 2009, 2455, 2943, 3271, 3344, 3701, 3705, 3713, 3718, 142, 143, 154, 156, 1651, 2798, 4498 and 1783, Village Langar, Tehsil Jand.
3. Rajwali deceased had two wives. One of them had two sons from the deceased namely Fateh Muhammad and Banaras who were alive at the time of death of Rajwali whereas Mst. Gahran, the other wife of Rajwali deceased was issueless. The claim of the plaintiffs-petitioners is that Mst.
Gahran after termination of limited estate on the enforcement of WestPakistan Shariat Application Act, 1962, with effect from 21-12-1962 was entitled only 1/8th share out of 146 Kanals, 6-Marlas of land, which she could sell to Amrit, predecessor-in-interest of the present respondents.
3-A. The suit of the plaintiffs-petitioners had been contested who filed their written statement taking the stand that the plaintiffs have no cause of action against the defendant and that the maintenance right under agricultural custom had been extinguished and after the promulgation of West Pakistan Shariat Application Act, 1962, the said suit had become barred by time as it had not been filed within a period of twelve years from 1962.
4. From the factual controversy appearing on the pleadings of the parties, the trial Court led to frame the following issues:--
(1) Whether the suit is within time? OPP
(2) Whether the suit has been incorrectly valued for the purpose of court-fee and jurisdiction, if so, what is the correct valuation for both the purposes? OPD
(3) Whether the suit property is correctly described, if not what is the correct description and with what effect? OPD
(4) Whether the plaintiffs are owners of the suit property measuring 146 Kanals, 6 Marlas and as such are entitled to its possession? OPP
(5) Relief.
5. After recording and appreciating the evidence of the parties, pro and contra, the Court decreed the suit of the plaintiffs. Feeling aggrieved, the defendant-respondent-Amrit son of Ghulam Muhammad had preferred an appeal .Which came up for hearing before learned Additional District Judge, Attock, who vide his impugned judgment and decree dated 13-3-1991 while accepting the appeal set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiffs-petitioners herein observing that the suit is barred by limitation. The above said judgment of the Appellate Court has been assailed through the present revision petition.
6. Learned counsel for the petitioners contended that the limited estates had been terminated with effect from'31-12-1962 and after its termination, the property in dispute devolved upon the legal heirs of Rajwali deceased, the original owner of the property. He further contended that the sale in favour of Amrit by Mst. Gahran, widow of Rajwali deceased, to the extent of her legal share would continue but the sale of the property in excess of her legal entitlement would be reverted to the plaintiffs-petitioners. He argued that the limitation in the cases of inheritance would not be attracted. In this respect, learned counsel has relied upon the cases of Bahadar through L.Rs, v.
Muhammad Aslam and another (1994 SCM R 116) and MuhammadBakhsh through Legal Heirs. v.
Muhammad Shafi and 8 others (1997 SCM R 1218).
7. On the other hand, the arguments of the learned counsel for the petitioners have been opposed vehemently by the learned counsel for the respondents contending that the limited estate had terminated in the year 1962 and the respondents were in possession of the suit property. The plaintiffs-petitioners should have filed suit within twelve years of termination of the limited estate.
8. I have heard the learned counsel for the parties and perused the record. There is no cavil with the fact that the original owner of the property Rajwali died in the year 1939 before the promulgation of Shariat Application Act, 1948, and his widow Mst. Gahran became the owner of the property to the extent of her maintenance allowance as a limited owner but vide Mutation No,2505 dated 31-12-1953, she sold 146 Kanals, 6 Marlas of land out of the property left by her deceased husband in favour of Amrit, predecessorininterest of the present respondents. The Shariat Application Act had been enforced on 31-12-1962 and section 3 of the said Act has provided that the limited estate in respect of immovable property held by the Muslim females A under the customary law would be terminated. Since the Act was applicable from 31-12-1962, therefore, the limited estate in respect of immovable property was terminated with immediate effect from the above said date. The inheritance of a Muslim deceased opens at the time of death of Muslim owner of the property and after the termination of the limited estate would devolve on the legal heirs of the original male owner of the property and every legal heir shall be entitled to inherit his share as if the original owner has died now. Therefore, after the termination of the limited estate of Mst. c Gahran, two sons of Rajwali deceased, who were alive at the time of his death, and his widow Mst. Gahran were entitled for his inheritance in accordance with their legal share, as per provisions of the Muslim Law of Inheritance.
9. Mst. Gahran widow of the deceased during her lifetime had transferred 146 Kanals, 6 Mamas of land out of total holding of Rajwali, her husband, in favour of Amrit for which she had no authority under the law. The suit filed by the reversioners, the sons of Rajwali had been decreed in the year 1954 and it was held that their reversionary rights would not be affected after the death or re- marriage of the limited estate owner Mst. Gahran. Be that as it may, since the limited estate had been extinguished by the West Pakistan Muslim Personal Law (Shariat) Act, 1962, and the legal heirs were declared entitled to their legal share out of the property left by their predecessor-in-interest, the original owner. As observed earlier, Mst. Gahran being the limited holder of the property could not transfer the same to the respondents and after the termination of her estate, she was entitled to the extent of her 1/8th legal share, therefore, the alienation in favour of Amrit to the extent of her legal share would be valid and surplus to that of her legal share would revert to her reversioners/sons of the deceased Rajwali, who were alive at the time of his death. In this respect, reference can be made to the case of Abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 Supreme Court 407) and Mst. Zainab Bibi and others v. Muhammad Yousaf and 4 others (1995 SCM R 868).
10. As to the argument of the lower Appellate Court that the suit being barred by time cannot be succeeded. This proposition had already been dealt with by the Hon'ble Supreme Court of Pakistan in Muhammad Bakhsh's case cited supra. In this case, Mst. Zainab, the limited estate holder died on 15-7-1949 and after her death mutation of inheritance had been sanctioned in 1949 and the suit by the reversioner had been filed in 1974, it was held by the Hon'ble Supreme Court that the parties admittedly being co-sharers the suit of the plaintiffs was not barred by limitation. In Bahadur's case (supra), the Hon'ble Judges of the Supreme Court had observed that the bar of limitation does not apply to the suit of co-sharer unless there is a proof of complete ouster. Admittedly in the present case, the petitioners and the vendor Mst. Gahran were entered as co-sharers and legal heirs of Rajwali deceased and it is also settled principle of law that possession of one co-sharer on every inch of land is for the benefit of other co-sharers and if the mutation had been attested in favour of some of co-sharer, it will not extinguish the title of other co-sharers, as observed in the case of Shahro and others v. Mst. Fatima and others (PLD 1.998 Supreme Court 1512).
11. The other aspect of the case is that an entry, in the record of rights if is adverse to the interest of the litigant/plaintiff and if on every such entry at every four years there would be denial of the right of the plaintiff, he has the option to file a suit on every denial and every denial would furnish a fresh cause of action. Reference in this context can be placed on the cases of Wali and 10 others v. Akbar and 5 others (1995 SCM R 284) and Muhammad Yousaf through his L.Rs, and others v. Noor Din and others (1993 M LD 763).
12. The above legal aspect of the case has not been adverted to by the lower Appellate Court and passed the judgment in violation of the dictum laid down in the cases referred to above therefore, the same is not sustainable in law. Resultantly, this revision petition is accepted and the judgment and decree dated 13-3-1991 passed by the lower Appellate Court is set aside and that of the judgment and decree dated 20-11-1989 of the trial Court is restored. There is no order as to costs.