PLJ 2000 Lahore 163

PLJ 2000 Lahore 163

Present: MAULVI ANWAR-UL-HAQ, J. NAWAB KHAN etc.--Petitioners

versus

REHMAT BIBI etc.-Respondents

C.R. No. 1188 of 1996, heard on 21.9.1999. Muhammadan Law-

—West Pakistan Land Revenue Act, 1969 (XVII of 1967), S. 42-Limitation Act 1908 (DC of 1908), S. 3--Death of Muslim male owner-Mutation of inheritence was attested in favour of mother and sisters of deceased while collaterals were left out from inheritence--Courts below dismissed plaintiffs (collaterals) suit on ground of bar of limitation and estoppel-Validity-Appellate Court had correctly maintained that mutation in question was illegal and void for the simple reason that after satisfying shares of mother and sisters of deceased, residue had to go to collaterals, therefore, Revenue Officer had no authority to exclude collaterals from inheritence-Court below had incorrectly found that suit having been filed after 33 years of attestation of mutation was barred by time-Notwithstanding effect of death of deceased owner, parties being co-owners in land in question, were in joint possession thereof--No ouster of plaintiffs having been pleaded and established they would be deemed to be owners in possession of land in question from the moment inheritence was opened under Muslim Law-No adverse possession and no bar of limitation could thus, be pleaded against plaintiffs-There was also no limitation for filing suit in respect of void mutation-Presence of some of collaterals, at the time of attestation of mutation in question would not amount to acquiescence/estoppel in as much as they were in possession of property in question-Option lay with plaintiff to agitate-against mutation when they felt threatened by adverse entries in revenue record--Judgments and decrees of Courts below in dismissing plaintiffs suit suffered from material irregularity and illegality, therefore, same were set aside while plaintiffs suit was decreed.

[Pp. 165 to 167] A, B, C & D

PLD 1990 SC 1; PLD 1994 SC 462; PLD 1987 SC 453; 1969 SCMR 341; PLJ 1985 Lah. 1; PLD 1971 SC 762 ref.

Mr. Maqsood-us-Salam Khan Joyia, Advocate for Petitioners. Sh. Naveed Sheharyar, Advocate for Respondents. Date of hearing: 21.9.1999.

judgment

The admitted facts of this case are that Ghulam Rasool son of Khushi Muhammad was the last male owner of the suit land. He died on 11.9.1955. He was survived by his mother Mst. Rehmat Bibi, four sisters, namely, Fatima Bibi, Nazir Begum, Amina Bibi and Basbir Bibi and collaterals Nawab Khan, Jalal and Muhammad Khan sons of Molu, real brother of Khushi Muhammad. Molu and Khushi Muhammad are sons of Mala. Mutation No. 323 of inheritance of Ghulam Rasool was entered on 15.11.1955 and was attested on 25.11.1955. For reasons not discernable from the said mutation (Ex.D. 1) the land was mutated only in favour of the mother and the said sisters of Ghulam Rasool. On 28.11.1988 the petitioners filed the present suit claiming to be the owners of l/6th share in the estate of said Ghulam Rasool. The respondents filed a written statement objecting that the suit was barred by time. On merits it was admitted that the petitioners are the progeny of Molu, the brother of Khushi Muhammad, father of said Ghulam Rasool.

2. The learned trial Court framed the issues and evidence of the parties was recorded. The learned trial Court avoided to answer Issue No. 6 and holding the suit to be barred by time and further holding that the defendants are estopped by their conduct from filing the suit, dismissed the suit vide judgment and decree dated 8.7.1992. Feeling aggrieved the petitioners filed an appeal which was heard by a learned Additional District Judge, Mandi Bahauddin. The learned Additional District Judge held as a fact that the mutation was illegal and void but concurred with the findings of the learned trial Court as to limitation and estoppel and proceeded to dismiss the appeal vide judgment and decree dated 8.2.1996.

3. Learned counsel for the petitioners contends that both the judgments and decrees under appeal suffer from material irregularity on the part of the two Courts below. Learned counsel for the respondents, on the other hand, has tried to support the impugned judgments.

4. I have gone through the record, certified copies whereof are appended with the Civil Revision, with the assistance of the learned counsel for the parties. It has been correctly held by the learned Additional District Judge that the Mutation Ex.D. 1 was illegal and void for the simple reason that after satisfying the shares of the mother and sisters of Ghulam Rasool, the residue had to go to the petitioners and the Revenue Officer had no authority to exclude the petitioners from inheritance. Now this being the admitted position, it is to be seen as to whether the question of limitation has been correctedly decided. I find that both the learned Courts below have
simply stated that the suit has been filed after 33 years of the attestation of the mutation and it is, therefore, barred by time. The written statement is silent and so are the two impugned judgments as to which particular provision of law of limitation governs the suit of the instant nature. The suit could have been dismissed only under Section 3 of the Limitation Act, 1908.The said provisions of law makes it mandatory that in case the suit is filed eyond the period of limitation prescribed in the Schedule to the said Act, the same shall be dismissed. The learned Courts below have failed to point out as to what is the period prescribed for the present suit under the chedule to the Limitation Act, 1908 and how is the suit found to have been filed beyond that period of limitation. The record, on the other hand reveals that notwithstanding the effect of death of Ghulam Rasool the parties are co- owners in the suit land and are in joint possession thereof. This position is evident from the certified copies of the Register Haqdaran Zamin for the years 1955-56, Ex.P. 3, 1965-66 Ex.P. 4, 1967-68 Ex.P. 5, 1971-72 Ex.P. 6, 1975-76 Ex.P. 7,1979-80 Ex.P. 8 and 1983-84 Ex.P. 9. Besides under the law the moment a Muslim owner dies, his estate passes on to the legal heirs in accordance with the Quranic injunctions. No mutation or any other act of State or individual is required for acquisition of the proprietory rights by inheritance (reference be made to the case of Ghulam All and 2 others vs.Mst. Ghulam Sarwar Nagvi (PLD 1990 SC 1). Thus apart from the fact that even prior to the death of Ghulam Rasool the petitioners were co-owners in the suit land. They became owners thereof to the extent of their Muslim Law share and are enjoying possession as Muslim Law co-heirs. Unless and until the respondents were first to plead and then to prove ouster of the petitioners and acquisition of title by them by way of adverse possession, the suit could never have been held to be barred by time. Even otherwise, there is no limitation for filing the suit in respect of a void mutation. The learned Appellate Court has itself held the mutation to be void. I draw support from this conclusion from the case of Moolchand and 9 others vs. Muhammad Yousuf (Udhamdas) and 3 others (PLD 1994 SC 462) and Haji through his Legal Heirs and others vs. Khuda Yar through his Legal Heirs (PLD 1987 SC 453).

5. Coming to the question of estoppel the learned Courts below have found Issue No. 2 in favour of the Respondents for the reason that one of them i.e. Nawab Khan was a marginal witness of a sale-deed whereby 25 Kanals of the suit land were-sold by the respondents in favour of Phalia Sugar Mills. This document is Ex.D. 2 on the record and registered on 4.12.1988, i.e. during the pendency of the suit which was filed on 28.11.1988. It is a settled proposition of law that knowledge of the contents of the document cannot be attributed to a person attesting the same as a witness. Reference is made to Askiq Hussain etc. vs. NisarALi etc. (1969 SCMR 341). Even if it be assumed that Nawab Khan was aware of the contents of the sale-deed the same could not have put him on any alert as the total land forming estate of late Ghulam Rasool is 88 Kanals while the sale is in respect of only 25 Kanals i.e. well within the share of the respondents.

6. So far as the presence of Jalal Khan, the predecessor-in-interest of Petitioners Nos. 4 to 8 at the time of mutation is concerned, the same is also of no legal effect. In the first instance he did protest against the exclusion of the reversioners and in the second the possibility cannot be ruled out that the petitioners opted to remain quiet as they continued to be in possession of the suit land alongwith the respondents as co-sharers/co- heirs. In such an eventuality option lay with them to file the suit as and when they felt threatened by the adverse entries in the Revenue record. Reference be made to the case of Shamas-ud-Din vs. Mst. Jewan and others
(PLD 1985 Lahore 1).

7. Sh. Naveed Sheharyar, learned counsel for the respondents finally referred to the case of Ahmad Din vs. Muhammad Shaft and others (PLD 1971 SC 762) to contend that the presence of Jalal Din at the time of mutation would bar the present suit and would also make the same time barred. It appears that head note(a) of the said report is rather misleading. The ratio of the said judgment of the apex Court is that the mutation of inheritance in the said case was decided under the Rehabilitation and Settlement Scheme and the matter was within the exclusive jurisdiction of the Rehabilitation authorities. In the said context it was held that the Civil