INAMULLAH Versus BAKHT ZAMIN KHAN

WIQAR AHMAD, J.--- This order is directed to dispose of the petition filed by petitioners under section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.").

2. Plaintiffs/petitioners had filed a suit for declaration to the effect that they had been owners to the extent of their shares in the property in dispute, as described in heading of the plaint, being legal heirs of one Jameer deceased and defendants had got no right to deny their rights of ownership as well as possession in the property in dispute. They have also prayed for grant of perpetual injunction against defendants for restraining them from denying rights of ownership of the petitioners in the property in dispute as well as changing its nature and selling it off. In prayer "Jim" they had made a prayer for grant of a decree for possession. Plaintiffs/petitioners Nos.1 to 7 were offsprings of late Mst. Benazira while petitioner No.8 was her husband. Mst. Benazira (deceased) as well as petitioner No. 9 namely Mst. Mahjabeen had been daughters of Jameer (late) who had died in the year 1936. Petitioners have claimed in their plaint that Jameer had inherited the property in dispute from his father namely Mehtab, and that after death of the former the property had devolved upon Mst. Benazira deceased as well as Mst. Mahjabeen and widow namely Mst. Saliha. It was also claimed in the plaint that the widow had gifted her part of the property in favour of her two daughters namely Mst. Benazira deceased and Mst. Mahjabeen, and that the petitioners have therefore also been entitled to her shares in the property.

3. Defendants were summoned, among whom defendants Nos.1 to 3 filed their written statement where in reply to Para 1 of the plaint they have admitted that Mst. Benazira deceased as well as Mst. Mahjabeen had been daughters of the deceased Jameer while Mst. Saliha had been his widow. They also stated that defendants Nos. 1 to 3 had been nephews of Jameer deceased while rest of the defendants had no relationship with him. Regarding the claim of entitlement of the petitioners they stated that they had earlier filed a suit in 1975 under the Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation, 1975 (hereinafter referred to as "the PATA Regulation") which had been dismissed till the last forum and that therefore they had been precluded from instituting a fresh suit for same relief. They had also stated that the property had been exclusive ownership of their predecessor namely Khush Rang deceased and that after his death same had devolved upon them. Defendants Nos. 15 to 20 have, however, filed their cognovit admitting claim of the plaintiffs/petitioners.

4. On conclusion of proceedings in the case, the learned civil Court vide its judgment dated 15.04.2006 decreed suit of the plaintiffs/petitioners. Respondents filed appeal there-against, which was allowed vide judgment dated 23.01.2008 of the Court of learned Additional District Judge-III Swat and judgment and decree of the learned civil Court, was set aside. Feeling aggrieved from judgment of the learned appellate Court petitioners have invoked revisional jurisdiction of this Court with the following prayer;

"It is, therefore prayed that by accepting this Revision impugned judgment and decree of appellate Court may be reversed by restoring that of trial court."

5. Learned counsel for petitioners stated during the course of his arguments that petitioners have been admittedly successors-in-interest of deceased Jameeer, who had been brother of Khush Rang predecessor-in-interest of defendants Nos.1 to 3. He added that petitioners have been deprived from their rights in the legacy of Jameer. Regarding earlier suit filed by the petitioners before competent forum under the PATA Regulation, the learned counsel stated that their suit had only been dismissed on the ground of limitation and that they had also filed a writ petition against final order in the hierarchy, which had been allowed by this Court to be withdrawn with permission to have recourse to the civil Court. The learned counsel contended that the earlier suit had been instituted on the basis of a will of the year 1932, while suit in hand had been based on the right of inheritance which was a different cause of action and the fresh suit have therefore not been barred, in circumstances of the case. In order to bolster his submissions, he placed reliance upon judgments reported as PLD 1990 Supreme Court PLD 1998 Supreme Court 1512, PLD 2002 Supreme Court 677, 2005 SCMR 1217, 2008 SCMR 343, 2008 SCMR 905, 2013 SCMR 1540, 2014 SCMR 801, 2016 SCMR 910, 2017 SCMR 1476, 2020 SCMR 1618, 1986 CLC 27, PLD 1987 Azad J&K 151, PLD 2011 Peshawar 148, 2012 YLR 398, 2015 MLD 213, PLD 2015 Peshawar 30, 2017 MLD 1180, 2017 CLC 664, 2018 CLC 254, 2019 CLC 2067 and AIR 1932 All. 553.

6. Learned counsel appearing on behalf of contesting respondents referred to Regulation 1 of 1973 and stated that said regulation had been promulgated with prospective effect wherein savings had also been given to the existing rights under Para 3 of the Regulation. He added that same was the case with Regulation 1 of 1974 as well as Regulation 1 of 1976 wherein the existing rights acquired under the preceding Regulations, orders, rules, notifications and customs having the force of law had been given protection and contiguity. On said premise, the learned counsel referred to Riwaj-Nama Swat, and contended that the property which had remained in possession of a person for 15 years, could not be claimed by an adverse party and his suit for the purpose was barred by law of limitation under the above-mentioned custom prevalent in the area. The learned counsel also added that it was in such a background that earlier suit of the petitioners had also been dismissed by the forum adjudicating under the PATA Regulation, till the last forum of Secretary Home Government of Khyber Pakhtunkhwa. He also contended that petitioners had filed a writ petition against judgment dated 11.01.1986 of Home Secretary but same was later on withdrawn and therefore said order had attained finality. In support of his contentions, the learned counsel placed reliance upon judgments reported as PLD 1992 Supreme Court 442, PLD 2012 Supreme Court 501, 2017 SCMR 2005, 2012 SCMR 930, 2013 SCMR 238, 2013 SCMR 299, PLD 2014 Supreme Court 167 and 2014 YLR 2016.

7. I have heard arguments of learned counsel for the parties and perused the record.

8. Perusal of record reveals that the pedigree table produced by Patwari as Ex. PW-1/1 has indicated the name of the original predecessor of the parties as Mehtab (deceased). Mehtab deceased had been survived by his two sons namely Khush Rang (predecessor of defendants Nos.1 to 3) and Jameer predecessor-in-interest of petitioners/plaintiffs. The line of succession of Jameer has not been shown carrying forward and none of his issues or widow has been shown therein. This also needs mention here that this pedigree table has been prepared during the course of settlement which had taken place in District Swat, for the first time in the year 1985/86 while Jameer deceased had died in the year 1936 as stated earlier. Defendants Nos. 1 to 3 have also admitted in reply to Para 1 of the plaint that Mst. Benazira deceased and Mst. Mahjabeen had been daughters while Mst. Saliha had been widow of Jameer deceased. When their relationships were admitted, then the reason for their omission from the pedigree table could not be explained by defendants Nos. 1 to 3. It is also noticeable that at the time of first settlement in the area claim of the petitioners had been very much alive, as they had been litigating for their rights, (albeit on a different basis i.e. claim of will made by Jameer) before the forums established under PATA Regulation. No law, rules, regulations, customs and traditions having the force of law, could be pointed out by learned counsel for contesting respondents showing that the female legal heirs of the deceased had not been having the right of claiming inheritance from their predecessor at the time of death of Jameer deceased. Keeping the technical objection aside for a while-to be addressed in latter part of this judgment-it can safely be held that the two daughters and widow of late Jameer had been deprived of their right of inheritance from their successor-in-interest. Such findings can be derived from record of the instant case without much trouble and findings of the learned Civil Court, on Issues Nos.1, 11, 12 and 13 has therefore been properly recorded. The reason that prevailed with the learned appellate Court, while allowing the appeal, had mainly been the technical objection of the existence of bar of constructive res-judicata, as well as limitation, in the case in hand. The arguments of learned counsel appearing on behalf of respondents have also been based upon such objections to the plaint of the petitioners. Regarding limitation, the learned counsel for respondents has mainly been relying upon Sub-para (2) of Para 3 of N.W.F.P. (now Khyber Pakhtunkhwa) Regulation No. 1 of 1971, wherein savings have been provided for previous operation of any law, instrument, custom or usage having the force of law. Other such provisions existing in Regulation 1 of 1974 as well as in Regulation 1 of 1976 had also been relied upon by learned counsel for respondents, so as to bolster his submission that the time period for bringing a suit in respect of a property where same had been in possession of another person, shall be a maximum of 15 years. In that respect, he has relied upon a narration in Riwaj-Nama Swat at Page No. 157. Said statement of the prevalent custom is reproduced hereunder for ready reference;

The statement of the custom has been akin to the phenomena of adverse possession, but it has nowhere been stated that such a principle would also be applied to the cases of inheritance. The narration reproduced above also provides an exception to the principle by stating that if a person pays any share in produce, or having other charge etc, then said principle would not apply and the matter should be settled according to Sharia or Jirga decision as deemed appropriate by the government. Here it requires a mention that in order dated 11.01.1986 of Secretary Home government of Khyber Pakhtunkhwa (Ex. DW-4/15) a maintenance allowance of Rs. 400/- per annum had been levied on the contesting respondents and in favour of petitioners, along with arrears. This liability, had been fixed in the earlier regime, for no other reason than the fact that the two daughters and widow of Jameer had been having rights in the property which had been in possession of defendants Nos. 1 to 3 therein. The property was thus not free from all sorts of charge and rights of the daughters and widow of the deceased Jameer had been recognized therein, notwithstanding dismissal of their plea based on the claim of acquisition of title from said Jameer on the dent of a will deed. The principle of bar of limitation in cases of adverse possession, contained in the above-mentioned part of Riwaj-Nama Swat reproduced above, even if taken to have been factually correct and legally sustainable, would not therefore, apply to the instant case.

9. Even otherwise, the plea of adverse possession cannot be allowed to be raised against a co-sharer, who claims acquisition of such a status by way of inheritance. Hon'ble Supreme Court of Pakistan in the case of "Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi" reported as PLD 1990 Supreme Court 1 has held in this respect;

"The land being joint there was no question of their remaining out of possession or the suit being time - barred. The possession of the one co-sharer is for the benefit of all the other co-sharers and a co-sharer is deemed to be in possession through his other co-sharers. Simply because the mutations were attested in 1907 or 1908 does not bless the transaction with sanctity. These mutations conferred no right in the property and are at best arrangements made on the fiscal side for ensuring realization of land revenue and ensuring the correctness of the Revenue record for that purpose."

Further ahead in the said judgment it was also held;

"It is not for the first time that it is being, so held. Even earlier commentators on Islamic Law (its inheritance branch in particular) have indicated the same approach with reference to some decided cases. The heir in possession was considered to be in constructive possession of the property on behalf of all the heirs in Spite of his exclusive possession, e.g., the possession of the brothers would be taken to be the possession of their sisters, unless there was an express repudiation of the claims of the sisters by the brothers."

Similarly, in the case of "Shahro and others v. Mst. Fatima and others" reported as PLD 1998 Supreme Court 1512 the Hon'ble apex Court has also held;

However, it has been noticed that in the said judgment of the Supreme Court of Azad Jammu and Kashmir, there was an exception in the cases of co-sharers and appellants are co-owners/co-sharers. It has been held in several decisions by this Court and is now well-settled that possession of one co-sharer or co-owner is for benefit of all other co-sharers and the mere fact that mutations had been attested in favour of some of the co-sharers would not extinguish the title of the other co-sharers. It has also been held, time and again, that entries in the revenue record of rights do not create or extinguish title but are a mere evidence thereof. In Ghulam Ali's case (supra) it had been held that adverse entries in the revenue record and non-participation in the profits in the property would not amount to ouster of the co-sharers as wrong mutations confer no right in property, the revenue record being maintained only have the purpose of ensuring realization of land revenue.

In the present case, the male heirs of Mitha tried to deprive the female heirs of their right to inherit the lands left by deceased Mitha. The female heirs of Mitha were his widow and daughters. In Ghulam Ali's case (supra) it had been held that a brother could not legally claim adverse possession against his sister and much less ouster. It was further held that an heir in possession has to be considered to be in constructive possession of the property on behalf of the heirs in spite of his exclusive possession and the possession of the brothers would be taken to be the possession of their sisters, unless there is an express repudiation of the claims of the sisters by the brothers. In the present case, apart from the fact that mutation had been got attested in their exclusive names by the male heirs, there is no evidence that the male heirs had expressly repudiated the claim of the female heirs. In fact, the male heirs got their exclusive names mutated as owners on the basis of a wrong statement that they were the only legal heirs of deceased Mitha. It has already been held that the suit filed by the plaintiffs was not time-barred. The plaintiffs were female heirs of deceased Mitha. The male heirs by illegal mutation in the revenue record could not deprive the plaintiffs of their rights in the property left by deceased Mitha. As observed, there is no evidence to establish that the appellants had set up any hostile title or claim that their possession was adverse to the rights of the plaintiffs. The principle laid down in Mirza Ghulam Hussain v. Ch. hlbal Ahmad (PLD 1991 SC 290) is reiterated and that is that if a co-sharer also becomes a usurper and openly as well as in a hostile manner revolts against the co-sharer and either by deceit or by force or other similar elements of treachery, completely ousts a co-sharer, only then on the basis of another principle of complete ouster, he can be treated to have set up 'adverse possession against the other co-sharers. The other principle laid down in Mirza Ghulam Hussain's case is also reiterated and it is that after a fair fight on the basis of lawful title if that claim is given up as having been finally failed, from that point of time onward the adverse possession, if other conditions are satisfied, could start. Appellants' case of adverse possession is not covered by either of the aforesaid principles.

Further reliance in this respect may be placed on judgment of Hon'ble Apex Court rendered in the case of "Mst. Barikhna v. Faiz Ullah Khan and others" reported as 2020 SCMR 1618.

Bar of limitation also cannot be given an effect so as to deprive petitioners from their right of inheritance, in peculiar circumstances of the instant case. Wrong entries in the first settlement made in the year 1985/86 shall be deemed to have clothed the petitioners with a fresh cause of action and they had instituted a suit on 27.02.1990, which shall be deemed to be within the prescribed period. Even otherwise Hon'ble Supreme Court of Pakistan has repeatedly been ignoring the bar of limitation in cases of inheritance which fact is evident from the judgment of Ghulam Ali Supra as well as recent judgment of Hon'ble Apex Court in the case of "Khan Muhammad through LRs and others Mst. Khatoon Bibi and others" reported as 2017 SCMR 1476 wherein the Hon'ble Court has held;

As far as the question of limitation in filing suit for declaration is concerned, we also would like to discuss it in some detail. In general, the time provided for such suit under Article 120 of the Limitation Act, 1908 is six years. Different aspects regarding reckoning/calculating this period of limitation have been considered and some yardsticks have been settled by this Court in different nature of cases and the situation cropping-up according to the facts and circumstances of the cases. In the cases of simple correction of revenue record, it is settled by now that every fresh wrong entry in the record of rights would provide fresh cause of action provided the party aggrieved is in possession of the property as owner needless to say that it can be either physical or symbolic possession. Similarly, in the cases of claiming right of inheritance, it is well settled that the claimant becomes co-owner/co-sharer of the property left by the predecessor along with others the moment the predecessor dies and entry of mutations of inheritance is only meant for updating the revenue record and for fiscal purposes. If a person feels himself aggrieved of such entries, he can file a suit for declaration within six years of such wrong entries or knowledge. Any such repetition of the said entries in the revenue record would again give him a fresh cause of action or when the rights of anyone in the property are denied it would also give fresh cause of action. Similarly, it is again settled by now that no limitation would run against the co-sharer.

(emphasis supplied)

Further reliance in this respect may also be placed on judgments of Hon'ble apex Court reported as 2007 SCMR 635, 2008 SCMR 905 and 2015 SCMR 869. Hon'ble apex Court in its judgment in the case of "Mst. Grana through legal heirs and others v. Sahib Kamala Bibi and others" reported as "PLD 2014 SC 167" had however, taken a different view and distinguished the judgment of "Ghulam Ali supra in its application to the said case. It is important however that the facts of the said case were different from the present one and the judgment of Ghulam Ali had not been revisited. Hon'ble Apex Court while distinguishing the case of Ghulam Ali had observed in Para 5 of its judgment as follows;

"From the forgoing discussion three material facts distinguishes the present case from that of Ghulam Ali. The dispute in the present case is not between brothers and sisters but the plaintiff had questioned alienation of property by her sister and mother. The defendants are not legal heirs of Mahmood, father of the plaintiff, but were transferees of the property. Finally the plaintiff had not challenged any inheritance but gifts and sale mutations. It is not the case of plaintiffs that the defendants were holding the property as co-sharers."

Ratio of Ghulam Ali's case has to be applied to the present case because in the case in hand, it had been found that legal heirs of Jameer deceased had wrongly been deprived from their rights in his legacy. Besides the legal heirs of Jameer deceased had themselves been claiming and litigating for getting their due share in his legacy for a long, long time.

10. One of the main grounds of defence raised by learned counsel for respondents had been based upon the plea of constructive res-judicata contained in Order II, Rule 2, C.P.C. Predecessor-in-interest of the petitioners had no doubt filed a suit before Assistant Commissioner Swat on 17.10.1978 under the PATA Regulation. But said suit had mainly been based upon a will deed of the year 1932, wherein they had claimed that Jameer deceased had executed such a will in his lifetime. The procedure in erstwhile PATA Regulation was such that the matter used to be referred to a Jirga under Para 4 of the Regulation. It had been provided in sub-para (2) of Para 4 of the PATA Regulation that a case found to have been time barred under any Riwaj, custom or usage having the force of law, would not be referred to Jirga. Claim of the petitioners in respect of their rights allegedly arising out a will deed, had been found, by the adjudicating officer, as time barred and had not been referred to Jirga for its factual adjudication. Their suit had not been containing a claim on the basis of inheritance, which had a different regime and principles of law of limitation. Their suit based upon a will deed might have been hit by the law of limitation but same could not be treated to be barred by law of limitation if it had been based upon the right of inheritance and their wrongful deprivation from such right. Said determination in the suit cannot therefore be held to be barring the subsequent suit by invoking the principle of res-judicata or constructive res-judicata. Hon'ble Supreme Court in the case of "Muhammad Zubair and others v. Muhammad Sharif" reported as "2005 SCMR 1217" had also held that right of succession could not be defeated by the law of limitation or the principle of Res-judicata, as no law or judgment could override the law of Sharia which was held to be a superior law.

11. It had been provided in the regulation that provisions of C.P.C. particularly Order II, Rule II, C.P.C., had not been applicable to suits filed before adjudicating forums established under PATA Regulation. Sub-para (4) of Para 3 of PATA Regulation had laid down that except as provided in the Regulation, the provisions of the Evidence Act, 1872 and the Code of Civil Procedure, 1908 would not apply to any proceedings under the Regulation. Para 3 of the Regulation being relevant in this respect, is reproduced hereunder for ready reference;

3. Certain disputes to be adjudicated upon under this Regulation. (1) Notwithstanding anything contained in any other law for the time being in force, all suits by a landlord for arrears or rent or the money equivalent of rent, or for sums recoverable under section 7 of the North-West Frontier Tenancy Act, 1950 (N.W.F.P Act XXV of 1950), and all cases of a civil nature shall, save as otherwise provided hereinafter, be referred to a Jirga constituted under, and adjudicated upon in accordance with, the provisions of this Regulation.

(2) The cases shall not be adjudicated upon under this Regulation, namely....

(a) cases in which the interest of a minor or of a person of unsound mind is involved;

(b) cases where provision for arbitration has been made in a contract between the parties;

(b) cases by or against the Federal or the Provincial Government or a public corporation or a public servant acting in the discharge of his duty.

(4) Except as otherwise provided in this Regulation, the provisions of the Evidence Act, 1872 (1 of 1872), and the Code of Civil Procedure, 1908 (Act V of 1908), shall apply N any proceedings under this Regulation.

(emphasis supplied)

When provisions of C.P.C., had not been applicable to the suit filed under PATA Regulation, then the bar contained in Order II, Rule 2, C.P.C. would not be invokeable in the case in hand. Provision of Order II, Rule 2 mandates that at the time of filing the first suit all the reliefs to which a person claims himself to be entitled, on the basis of a particular cause of action, should be included in the suit. The provision had not been applying to a suit drafted and then instituted before PATA forum. Rule 1 of Order II provided for the frame of suit, by stating that every suit as far as practicable, be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Sub-rule (1) of Order II provided, in the same continuity, that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish, any portion of his claim in order to bring the suit within the jurisdiction of any Court. The bar to subsequent suit was contained; in sub-rules (2) and (3) of rule 2 of Order II in the following words;

Relinquishment of part of claim. (2) Where a plaint omits to suit in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

Omission to sue for one of several reliefs. (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but it he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation. For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

Neither of the rules contained in Order II, had been applicable to suits filed before the FATA forum. When sub-rule (1) of rule 2 and other provisions regarding form of suit contained in CPC had not been applicable to a plaint filed before PATA forum, then the bar contained in sub-rule (2) or sub-rule (3) of rule 2 of Order II cannot be applied to such a suit as well. The objection of learned counsel for respondents that suit before the learned civil Court in the case in hand, had been barred by the plea of constructive res-judicata or Order II, Rule 2, is therefore not based upon a correct appreciation of law on the subject.

12. Defendants/respondents have though produced certain deeds showing a number of transactions carried on by their predecessor namely Khush Rang but such transactions would carry no adverse effects on the rights of petitioners/plaintiffs. Such documents have properly been treated by the learned civil Court in its findings on issue No. 11 in the following words;

Whatever property has been sold by Khush Rang deceased or his legal heirs have to be adjusted in their respective shares of inheritance and the vendees thereof should not be disturbed.

13. In light of what has been discussed above, on acceptance of the instant revision petition, impugned judgment and decree dated 23.01.2008 of the Court of learned Additional District Judge-III Swat is set aside. The judgment and decree granted by learned civil Court cannot be restored as same requires modification in light of the reasons given above. Resultantly, suit of the plaintiffs/petitioners is deemed to have been decreed as per the following declarations, determinations and injunctions;

(a) It is declared that the property inherited and owned by Jameer deceased in his lifetime had devolved upon his successors i.e. Mst. Saliha deceased (widow), Mst. Benazira Bibi deceased (daughter) and Mst. Mahjabeen (daughter), according to their Shari shares in the inheritance of their predecessor namely Jameer.

(b) A preliminary decree, regarding entitlement of the petitioners Nos. 1 to 8 to the extent of Shari share of Mst. Benazira in the legacy of Jameer deceased in the property in dispute, is granted.

(c) A preliminary decree to the extent of Shari entitlement of petitioner No. 9 i.e. Mst. Mahjabeen is also granted as she was found entitled in the legacy of Jameer deceased.

(d) A decree to the extent of half share in the entitlement of Mst. Saliha (deceased) is also granted in favour of petitioners Nos.1 to 8 and petitioner No. 9, in equal share. (property gifted by Mst. Saliha to her two daughters in her lifetime).

(e) A decree for perpetual injunction against the defendants/respondents to the extent of denying the rights of ownership of petitioners/plaintiffs as declared above is also passed in favour of petitioners.

(f) A decree for the grant of joint possession of the property in dispute is also granted in favour of the petitioners. Their prayer for grant of actual possession in the alternative is however declined as a co-sharer cannot be dispossessed except by way of partitioning the joint immovable property. For separation of their respective Shari shares in the property in dispute they will have to resort to the competent forum i.e. the concerned revenue officer in case of agriculture property, while their shares in the constructed property, shall be separated by the learned civil Court in the proceedings for final decree.

ZH/157/P Revision accepted.