ROSHAN AKHTAR Versus MUHAMMAD BOOTA

ORDER

CH.MUHAMMAD ARIF, J.- --Through this petition under Article 185 of the Constitution of the Islamic Republic of Pakistan, 1973 leave to appeal is sought against the judgment of the Lahore High Court, Lahore, dated 22-12-1997 whereby Regular Second Appeal No.176 of 1989 of respondents Nos.l to 3 herein against the petitioner Mst. Roshan Akhtar, respondent No.4 Mst. Jannat Bibi and the Central Government through Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore against the judgment, dated 7-10-1986 of a learned Additional District Judge, Okara was allowed and that of the trial Court, dated 28-7-1986 was restored with the consequence that suit of respondents Nos. 1 to 3 herein

2. Respondents Nos.l to 3 had initially made the suit against the petitioner and respondent No.4 but after the plaint was amended under the orders of the trial Court the Federal Government through Chief Settlement Commissioner/Member, Board of Revenue, Punjab Lahore was impleaded as defendant No. 1. The title of the suit as amended reads thus:--

(Correct description should be Mst. Roshan Akhtar defendant No.2 in the amended plaint)

The parties went on trial on the following issues:--

" ISSUES

(1) Whether Central Government is necessary party?

(2) Whether suit is not maintainable in its present form?

(3) Whether suit is time-barred?

(4) Whether this Court lacks jurisdiction to adjudicate the suit?

(5) Whether plaintiffs have no cause of action?

(6) Whether the suit has been wrongly valued for the purpose of court fee?

(7) Whether Mst. Suban was limited owner?

(8) In case Issue No.7 is proved in affirmative then who are the collateral and to what share they are entitled?

(9) Relief."

The learned trial Court decreed the suit of respondents Nos. l to 3/plaintiffs holding that the land in dispute i.e., 1/9th share of agricultural land in Khewat No.37, Khatunis Nos.232 to 252 situated in Mauza Shehonwal, Tehsil Depalpur, according to Jamabandi for the year 1931-32 was transferred in favour of Mst. Suban wife of Waryam deceased as a limited owner through oral Mutation No.54, dated 18-8-1929. She could legitimately obtain the benefits of the land during her life time but was not competent in law to alienate the,same beyond her share according to Sharia. The plaintiffs are collateral of Waryam and their such status having been accepted by the petitioner herself when she appeared as D.W.2 who further admitted that they were also in -possession of some portion of the land. On the promulgation of the West Pakistan Muslim Personal Law (Shariat) Application Act (No.V of 1962) her entitlement was to have 1/8th share and the petitioner was similarly entitled to 1/2 share as daughter of the deceased from her. Mutation of gift of entire land in favour of the petitioner was illegal to the extent of 3/8th share of the estate of Waryam deceased. The findings under Issue No.3 were that gift mutation having been attested in the year 1969 the making of the suit by the plaintiff in the year 1980 was within time.

3. The judgment and decree of the trial Court, dated 28-7-1986 was successfully challenged by the petitioner in appeal under section 96, C.P.C. before a learned Additional District Judge, Okara who vide judgment and decree, dated 7-10-1986 accepted the same and dismissed the suit of the plaintiffs. The findings under Issues Nos.3, 7 and 8 were reversed holding, respectively, that the suit was time-barred as it could be filed within 12 years of the termination of the life estate of Mst. Suban, she was a limited owner of the estate of Waryam and that the plaintiffs did not lead evidence to prove their heirship with the deceased.

4. Initially, the respondents/plaintiffs filed a revision under section 115, C.P.C. but subsequently, the same was converted into a Regular Second Appeal and allocated No. 176 of 1989. Paras. 17, 18 and 19 of the High Court judgment read thus:

"17. As noted supra, that the evidence produced on the record is indicative of the facts, that the Khata was joint in which the appellants, held 3/8 share, on the termination of life interest. The mutation of gift was effected- in 1969, whereby the widow alienated entire land in favour of her daughter, respondent No. 1. The appellants challenged the mutation on the revenue side but was advised to file a civil suit. The suit having been filed on 16-2-1980, was within time from the date of accrual of the cause of action which would accrue in this case, from the time, when the adverse entry in the revenue record, was likely to threaten the title of the appellants. The suit for possession having been filed within 12 years, cannot be said to be barred by time. Even otherwise, the plea of adverse possession was never raised in the pleading nor any evidence was led and, therefore, such a plea, could not be entertained for the first time, at appellate stage, though the same was otherwise devoid of any merits.

"

18. From the resume of the facts and legal position, taken care of, in the preceding paras., it becomes evident, that Mst. Suban, could not alienate any apart of the property, inherited from late Najabat, in excess of her 1/8th share, after the termination of life interest, in 1962 and consequently, the gift made in 1969, was invalid and void ab initio, to the extent, it exceeded 1/8th share of the widow. The appellants being co-sharers, as collaterals, were entitled to 3/8 share in the property and were, therefore, legally justified, in claiming relief in regard thereto. The learned Civil Judge, for sound reasons, decreed the suit which judgment was illegally interfered with in appeal. The judgment of the learned Additional District Judge, suffering from perversity of reasoning, based on misreading of the record and being contrary to the law, cannot sustain which is accordingly set aside.

"19. In result, this appeal is allowed, the impugned judgment of the learned Additional District Judge is set aside and that of the learned Civil Judge is restored, and as a consequence thereof, the suit of appellants will stand decreed. No order as to the costs."

5. Mr. Irfan Qadir, learned counsel appearing in support of the instant petition, has objected to the findings that the suit of the plaintiffs was instituted within 12 years and that Mst. Suban was a limited owner. According to him, the Federal Government was a necessary party and as it was impleaded as such the learned Judge of the High Court was not quite right in not considering the contents of the written statement filed by the Federal Government and the entries in the revenue record indicating that the Federal Government was entered as 'owner' in the relevant Jamabandi, respectively available at pages 58 to 60 and 66 to 68 of the Paper Book.

6. We have carefully considered the arguments addressed at the bar on behalf of the petitioner and have also perused the. material with the help of the learned counsel. The impugned judgment took notice of section 5 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 in the light of Mst. Began v. Mst. Bai (1983 SCMR 80) and Murad v. Karam and others (1987 SCMR 2008) arid came to the conclusion that, by operation of law Mst. Suban succeeded to only her Islamic Law, share in the estate of A deceased Waryam. Similarly, referring to Mst. Omai and other v. Hakeem Khan and others (1970 SCMR 499), Saadullah Khan and 6 others v. Mir Piayo Khan and 14 others (PLD 1970 Peshawar 150), Ali Begum and 2 others v. Zardad Khan and 4 others (1994 SCMR 1140), Haider Shah and 5 others v. Mst. Roshanee and 9 others (1996 SCMR 901) and Sarbland and 19 others v. Ghulam Fatima and 6 others (1996 MLD 948 (Lah.), it was held that possession of one co-heir, in law, is possession of all co-heirs; that all the heirs are entitled to inherit the property at the time of the termination of 8 life estate that the gift of the entire estate of her husband, after the enforcement of West Pakistan Muslim Personal Law (Shariat) Application Act (No.VI of 1962) will be void ab initio and not binding on the reversionaries who are entitled to inherit after such termination of life estate. No ground at all has been made out to differ with the B aforementioned propositions which clearly support the impugned judgment, dated 22-12-1997.

7. As regards the criticism regarding suit being beyond time, the excerpt from para. 17 of the impugned judgment clearly shows that the mutation of gift, whereby Mst. Suban had alienated the entire land in favour of the petitioner, was challenged by the plaintiffs on the revenue side but they were advised to file a civil suit and the suit having been filed on 16-2-1980 the same was within time from the date of accrual of the cause of action namely adverse-entry in the revenue record. Further, it was rightly concluded by the High Court that the plea of adverse possession having not been raised in the pleadings nor any evidence having been led thereon, such a plea could not be entertained for the first time, at appellate stage. Findings of (C the learned trial Judge, in that behalf, were found to be free from any taint to law.

8. As regards the plea that the Central Government had been impleaded as defendant in the suit wherein it filed written statement as well as that it was shown as 'owner' in the relevant Jamabandi, we suffice by observing that while perusing the entire record the learned Judge of the High Court did not come across any material indicating that the petitioner had raised such plea in the memo. of appeal filed by her before the appellate forum under section 96, C.P.C. In fact, she had impleaded the Federal Government as also Mst. Jannat Bibi as pro forma respondents Nos.4 and 5 respectively in the said Memo. She did not even so much as make a cross objection in R.S.A. No. 176 of 1989. Looked at from whatever angle, the argument being raised is devoid of any merit.

9. Not finding any force in the petition, the same is dismissed and leave to appeal is refused.

Q. M. H. /M. A. K./R-10/S Petition dismissed.