H C J D A 38.

JUDGMENT SHEET
IN THE LAHORE HIGH COURT BAHAWALPUR
BENCH BAHAWALPUR

JUDICIAL DEPARTMENT

Civil Revision No. 409-D of 2002.

Allah Ditta v. Mst. Maryam Khatoon etc.

Date of hearing 06.05.2015

For the Petitioners: Mr. Ahmad Mansoor Chishti, Advocate.

For the Respondents: Mr. Abdul Majeed Bhatti, Advocate.

ZAFARULLAH KHAN KHAKWANI, J.- This civil

revision is directed against the judgment and decree dated
29.06.2002 of learned Addl. Distt. Judge, Bahawalpur whereby
appeal filed by the plaintiffs/respondents titled “Mst. Kareem
Khatoon and 13 others v. Ghulam Rasool and another” was
accepted and judgment and decree dated 30.03.1998 passed by
learned Civil Judge, Bahawalpur was set aside, suit filed by the
plaintiffs/respondents was decreed and they were held entitled
to inherit the estate left by Raheem Bakhsh deceased according
to their legal shares as against the shares of their predecessor-
in-interest Mst. Rehmat Mai and Mst. Salamat Mai and
mutations of inheritance bearing No.144 dated 05.07.1920 and
121 dated 04.07.1920 and subsequent mutations bearing
Nos.112 dated 08.04.1996 and 439 dated 08.01.1990 were
declared illegal, void and ineffective upon their rights.

2. Necessary facts as stemmed out of the record are that the

respondents/plaintiffs filed a suit for declaration and permanent
injunction stating therein that Rahim Bakhsh, predecessor-in-
interest of the parties was owner of land measuring 12 kanals
18 marlas in Mauza Khairpur Noranga and land measuring 11
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kanals, 11 marlas in Mauza Ghulamoo Mahar, Tehsil and

District Bahawalpur. It was maintained that the said Rahim
Bakhsh was governed by Shariat, who had one son, namely,
Ghulam Rasool and two daughters, namely, Mst. Rehmat Mai
and Mst. Salamat Mai and they were alive at the time of death
of said Rahim Bakhsh. After his death mutation Nos.144 dated
05.07.1920 and 121 dated 04.07.1920 were attested in respect
of land of deceased in Mauza Khairpur Noranga and mauza
Ghulamoo Mahar respectively but in these mutations the
predecessor of the plaintiffs were deprived deliberately.
Through the said suit the plaintiffs prayed for declaration that
they being legal heirs of Mst. Rehmat Mai and Mst. Salamat
Mai were entitled to inherit the estate of Rahim Bakhsh and
also challenged the mutations referred above being against the
injunction of Islam, forged, fictitious, ineffective upon their
rights and as such liable to be set aside.

3. The petitioners/defendants contested the suit. Main plank

of their challenge/defence was that predecessor-in-interest of
the plaintiffs Mst. Rehmat Mai and Mst. Salamat Mai had never
challenged the above said mutations in their life time. It was
further pleaded that the suit property was transferred in the
name of Allah Ditta who never gave any share or produce to the
plaintiffs. It was maintained that there was a custom of Pag
Wand in the family under which the daughters did not inherit
the property.

4. Out of the divergent pleadings of the parties, following

issues were framed.
1. Whether the family of late Rahim Bakhsh was
governed by alleged custom. If so, then what
was that custom?OPD.

2. If the foregoing issue is answered in the

negative, then whether the plaintiffs being the
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grand children of the late Rahim Bakhsh are

entitled to inherit the estate of late Rahim
Bakhsh against the rights of their mothers?

3. Whether the plaintiffs have got cause of action

and locus standi to file the suit? OPP.

4. Whether the suit is time barred? OPD.

5. Whether the suit is not maintainable in its

present form? OPD.

6. Relief.

5. The parties produced their evidence in support of their

respective contentions and after closing of evidence and hearing
the arguments from both sides learned trial Court/Civil Judge
Class-III, Bahawalpur vide his judgment and decree dated
30.03.1998 dismissed the suit filed by the plaintiffs/
respondents.

6. Feeling aggrieved by the said judgment and decree and

by not accepting the decision of learned trial Court, the
plaintiffs/respondents preferred an appeal which was accepted
by Addl. District Judge, Bahawalpur vide judgment and decree
dated 29.06.2002 impugned herein, hence, this civil revision.
7. Learned counsel for the petitioners/defendants while
reiterating the grounds of the civil revision maintained that at
the time of attestation of mutation in the year 1920 rawaj of Pag
Wand was existed in mauza Khairpur Noranga and mauza
Ghulamoo Mahar and in this regard the petitioners/defendants
produced oral as well as documentary evidence i.e. copy of
wajibul arz for the year 1904 mauza Khairpur Noranga as Ex-
D1, copy of wajibul arz for the year 1925/26 mauza Khairpur
Noranga as Ex-D2, copy of wajibul arz for the year 1904 mauza
Ghulamoo Mahar as Ex-D3 which shows that rawaj of Pag
Wand was existed in both the mauzas. Further contends that
petitioners/defendants also produced copy of mutation No.134
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dated 24.07.1922 of Mauza Ghulamoo Mahar as Ex-D5 and

copy of mutation No.211 dated 27.07.1925 Mauza Khairpur
Noranga as Ex-D6 and maintained that the estate of Ahmad
Bakhsh Sangi brother of Rahim Bakhsh (predecessor-in-interest
of the parties) had been only inherited by his sons namely,
Kaloo and Rahim Bakhsh; that the plaintiffs/respondents badly
failed to prove issue No.3 as no cogent evidence was produced
to prove cause of action and locus standi to file the suit; that
Mst. Rehmat Mai and Mst. Salamat Mai predecessor in interest of
the parties never challenged the impugned mutations in their life
time; that the produce of the disputed property was never given to
the plaintiffs; that the plaintiffs have knowledge of the mutations for
decades but they remained silent and did not challenge the same; that
the suit was badly time barred and hit by Article 120 of the
Limitation Act. Further contended that by virtue of Section 2-A of
West Pakistan Muslim Personal Law (Shariat) Application Act, 1962
introduced through Punjab (Amendment) Ordinance, 1983, the
petitioners are absolute owner off the estate left by Raheem
Bakhsh deceased. Reliance is placed on the cases of GHULAM
HAIDER and others (PLD 2012 SC 501), MUHAMMAD
RUSTAM and another v. Mst. MAIKAN JAN and others (PLJ
2013 SC 96) and Mst. GRANA through Legal Heirs and others
v. SAHIB KAMALA BIBI and others (PLD 2014 SC 167).
8. Conversely, learned counsel for the plaintiffs/respondents
while supporting the judgment and decree passed by the learned
appellate Court maintained that the plaintiff/respondents
successfully proved their case before the learned trial Court;
that there was no custom of Pag Wand in both the mauzas and it
was not mentioned in the copies of wajibul arz Ex-D1 and Ex-
D6 and Sangi family was governed by custom; that the
predecessor in interest of Mst. Rehmat Mai and Mst. Salamat
Mai had illegally deprived them from their inheritance; that
they had been receiving the share of produce from the
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defendants/petitioners; that the suit was maintainable and no

limitation runs against the said suit in the light of judgments
passed by the Hob’ble Supreme Court of Pakistan.

9. Arguments heard. Record perused.

10. The pivotal point in this case is whether at the time of

registration of mutation of inheritance of Rahim Bukhsh the
parties were governed by the custom prevailing in the said
Mauzas or the inheritance was to be divided according to
Shariah. To resolve this issue one has to rely more on
documentary evidence instead of oral evidence produced by the
parties as the matter relates to custom prevailing in the first two
decades of the last Century. In order to prove their case that the
family was governed by the Shariah and not by the custom, the
plaintiffs/respondents apart from oral evidence produced copies
of Wajb ul Arz of Mauzas Khairpur Noranga and Mauza
Ghulamoo Mahar for the years 1925/26 and 1930/31 (Ex. P.5 to
P.7) wherein it was mentioned that although there was custom
of Pag Wand in the Mauzas but in the next column it was
mentioned that Muslims will be governed by Shariah in the
matters of inheritance. In order to show that the Shariah was
applied in the matter of inheritance in Muslim families the
plaintiffs also produced copies of mutation of inheritance
(Ex.P.12 & P.13) wherein the property was also inherited by
daughters alongwith sons being legal heirs of the deceased. As
against this the defendants produced copy of Wajb ul Arz for
the year 1904 to show that in their Mauzas there was custom of
Pag Wand under which the land was inherited by sons only.
However, there is no mention in the Wajb ul Arz relating to
1904 that Muslims will be governed by Shariah. While
interpreting these documents the learned lower appellate court
observed that there was no mention in these documents that in
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Sangi Family the property will be inherited by sons only in the

presence of daughters of the deceased. The learned appellate
Court also observed that copies of documents produced by the
plaintiffs show that in Mauza Rakhani and Mauza Ghulamoo
Mahar certain properties were inherited by daughters alongwith
sons of the deceased. The learned lower appellate Court also
observed that although the mutations produced by the
defendants show that properties were inherited by sons but it
was nowhere mentioned by the officers attesting mutation
which could show that there was any daughter of the deceased
alive. Here the learned lower appellate Court while appreciating
the evidence committed material error. Contents of Wajb ul Arz
for the year 1904 (Ex.D1) opens with the sentence that in the
Mauza inheritance is governed by the custom of Pag Wand and
not by Chunda Wand. As noted above, in the said Wajb ul Arz
it was also not mentioned that Muslim Families would be
governed by Shariah. If this was the position then there was no
need to elaborate as to what was the custom in the Sangi family
who also lived in the same Mauza. Although the plaintiffs also
produced copies of Wajb ul Arz of the same Mauza but the
same relate to much later period. Same is the position of copies
of mutation of other deceased persons which were registered
about twenty years after registration of mutation in favour of
Ghulam Rasool, defendant and that too in other Mauza. As
against this Ex.D.5 and D.6 are the mutations of inheritance by
which estate of Ahmad Bukhsh Sangi (brother of Rahim
Bukhsh, predecessor in interest of the present parties) in
Mauzas Ghulamoo Mahar and Mauza Khairpur Noranga had
gone to his sons, namely, Kaloo and Rahim Bukhsh. These
documents make it more than clear that in the said Mauzas and
more so in Sangi family the inheritance was made on the basis
of Pag Wand. It has come on record that Mst. Rehmat Mai and
Mst. Salamat Mai lived alive for many years after registration
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of mutation in favour of Ghulam Rasool defendant. But they

never raised any objection in this respect. The plaintiffs could
not establish through cogent evidence that the defendants used
to give share in the produce to the plaintiffs.

11. It may be mentioned that till last quarter of last Century

matter of inheritance of agricultural land before the period
relating to pre-partition of Sub-Continent and late remained
under controversy to be dealt with under the customary law
then prevailing in the specific area/territory or under the Islamic
Law of Inheritance (Shariah) vis-a-vis Muslim families and in
order to make the customary law in conjunction with Shariah
different laws have been promulgated from time to time such as
the West Pakistan Muslim Personal Law (Shariat) Application
Act, 1948, West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962, West Pakistan Muslim Personal Law
(Shariat) Application Act, 1962 (Shariat) (Amendment)
Ordinance, 1963, West Pakistan Muslim Personal Law (Shariat)
Application (Amendment) Act, 1964 etc. and finally it has
been amended through West Pakistan Muslim Personal Law
(Shariat) Act, (Amendment) Ordinance, 1983 (XIII of 1983) by
inserting Section 2-A in the West Pakistan Muslim Personal
Law (Shariat) Application Act, 1962. The said provision of law
is most relevant for the purposes of disposal of this case as such
I consider it imperative to reproduce the same which runs as
under:
“2. Amendment of West Pakistan Act V of
1962.- In the West Pakistan Muslim Personal Law
(Shariat) Act, 1962, after section 2, the following
new section 2-A shall be inserted:-

2-A. Succession prior to Act IX of 1948.

Notwithstanding anything to the contrary
contained in section 2 or any other law for the
time being in force, or any custom or usage or
decree judgment or order of any Court, where
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before the commencement of the Punjab Muslim

Personal Law (Shariat) Application Act, 1948, a
male heir had acquired any agricultural land
under custom from the person who at the time of
such acquisition was a Muslim:-

(a) he shall be deemed to have become, upon

such acquisition an absolute owner of such
land, as if such land had devolved on him
under the Muslim Personal Law (Shariat);
(b) ……………
(c) ……………

The said provision of law came under discussion before

the apex Court in different cases. The matter in issue was stood
conclusively and authoritatively decided by Full Bench of the
Hon’ble Supreme Court in the case of GHULAM HAIDER and
others v. MURAD through Legal Representatives and others
(PLD 2012 SC 501). While dealing with such point it has been
held by the apex Court in para 7 as under:
“It is abundantly clear to us that section 2-A
introduced through Ordinance XIII of 1983 was
meant to cover all successions prior to
introduction of Act IX of 1948, i.e. all successions
before March 15, 1948; it dealt with only male
heirs; and it was restricted to only those male
heirs who had acquired any agricultural land
under custom from a person who at the time of
such acquisition was a Muslim. In plain terms
section 2-A introduced through Ordinance XIII of
1983 was meant to be applicable to only those
male heirs who had acquired some agricultural
land from a Muslim before March 15, 1948 and
such acquisition had come about under the
customary law of inheritance. According to
section 2-A introduced through Ordinance XIII of
1983 such a male heir acquiring any agricultural
land under the customary law of inheritance from
a Muslim was to be deemed to have become, upon
such “acquisition” an absolute owner of “such
land”, as if “such land” had devolved on him
under the Muslim Personal Law (Shariat). It is of
paramount importance to notice that the words
used in section 2-A introduced through Ordinance
XIII of 1983 were “had acquired” and “such
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acquisition” and the person so acquiring was to

become an absolute own er of “such land” as if
“such land” had devolved on him under the
Muslim Personal Law (Shariat). It is quite clear to
us that what the legislature had intended was that
the entire agricultural land acquired by such
person under the customary law of inheritance
was to be recognized as under his absolute
ownership as if such acquisition had come about
under the Islamic law of inheritance and nothing
in section 2-A introduced through Ordinance XIII
of 1983 has been found by us to be conveying any
meaning that such person was to be deemed to
have become an absolute owner of only that part
of the acquired land which would have otherwise
devolved on him as his share of inheritance under
the Islamic law of inheritance. The deeming
provision contained in clause (a) of section 2-A
introduced through Ordinance XIII of 1983 in fact
covered the entire acquisition and the entire land
acquired and was never meant to be restricted to
some portion or share of the acquired land. It
appears to us that the intention of the legislature
was that the entire devolution on the basis of the
customary law of inheritance was meant to be
saved by section 2-A and such devolution, in its
entirety was meant to be deemed to have been
under the Islamic law of inheritance.”

It was further held in Para 10 of the said pronouncement

as under:
“For what has been discussed above, we have
entertained no manner of doubt that by virtue of
section 2-A introduced through Ordinance XIII of
1983 a male heir acquiring any agricultural land
in the Province of the Punjab before March 15,
1948 under custom from a person who at the time
of such acquisition was a Muslim was to be
deemed to have become, upon such acquisition, an
absolute owner of the entire land acquired by him
as if such land had devolved on him under the
Muslim Personal Law (Shariat).”

12. While taking guidance from the above pronouncement

and after scanning the evidence available on record, I am of the
affirm view that the findings of the learned lower appellate
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Court are based on presumptions and conjectures and are not in

consonance with the basic law as well as pronouncements made
by the Hon’ble Supreme Court and thus are not sustainable.

13. In culmination of the discussion referred supra, this

petition is accepted, the judgment and decree of the learned
lower appellate Court dated 29.6.2002 is set aside with the
result that suit of the plaintiffs is dismissed.

(ZAFARULLAH KHAN KHAKWANI)

JUDGE
APPROVED FOR REPORTING:

JUDGE
*Riaz.