Ghulam Shabbir etc. vs Barkat Ali etc.

Stereo. H C J D A-38.

JUDGMENT SHEET

LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI.

JUDICIAL DEPARTMENT

C.R. No.990 of 2014.

Ghulam Shabbir, etc. ...Vs... Barkat Ali, etc.

JUDGMENT

Date of Hearing: 16.12.2025.

For Petitioners: Mr. Ghulam Akbar Awan, Advocate.

For Respondents: Mirza Jawad Abid Baig, Advocate for respondent No.1, 3 to 6.

Malik Mohsin Mehmood Kalyami & Ch. Asif Amin Goraya, Advocates for respondent No.2.

Ch. Sultan Mahmood-J. By filing the instant civil revision under Section 115 of the Code of Civil Procedure, the petitioners have called in question the legality and validity of judgments & decrees, whereby suit of respondents for declaration and permanent injunction was decreed by the learned Courts below, concurrently.

2.Precisely, respondents instituted a suit for declaration and permanent injunction against the respondents claiming themselves to be owner of land measuring 32-Kanals & 15 Marlas, comprising Khasra Nos. 219, 221, 531, 534 and 4413, as per the Register of Hoqdaran-e-Zamin for 1999-2000. They maintained that mutation No.818 dated 29.2.1917, relating to the inheritance of Fateh son of Muhammad and Muhammad son of Noor Khan, was illegal and ineffective against their rights. Similarly, mutation No.1137 dated 28.3.1920 and sale deed No.1035 dated 2.10.1980, executed by Muhammad son of Noor Khan in favor of the defendant over 16- Kanals & 14 Marlas of the land, were challenged as void. It was averred that the property originally belonged to Lal Khan and under custom, passed through his widow Rajaan and daughters Bakhtawar, Bano and Sardaran, with life interests noted in mutations Nos.467 dated 23.1.1908 and 705 dated 9.6.1913. The respondents

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predecessors, Fateh son of Muhammad, claimed rightful ownership that was usurped through illegal mutation and alienation. The respondents discovered the illegality about a year before filing the suit when the petitioners-defendants denied their exclusive ownership. By filing the suit, they prayed for declaration of ownership, cancellation of mutation No.818 and rescission of sale deed No.1035.

The suit was resisted by the petitioners while submitting contesting written statement. The learned Trial Court framed nine issues alongwith additional Issues No.8-A, 8-B & 8-C; both the parties adduced their evidence, oral as well as documentary, in pro and contra. The learned Trial Court vide impugned judgment and decree dated 16.09.2011 decreed the suit of respondents, against which the petitioners preferred an appeal but the same was dismissed vide impugned judgment and decree dated 11.09.2014 by the learned Appellate Court; hence, this civil revision.

3.Heard. Record perused.

4.Admittedly, the land in question was originally owned by Lal son of Sardar, who died in the year 1908, leaving behind his widow Mst. Rajaan and three daughters namely Mst. Bakhtawar, Mst. Sardaran and Mst. Bano. Upon his demise, the property was mutated in favour of his widow Mst. Rajaan in accordance with the prevailing customary law. Subsequently, Mst. Rajaan contracted a second marriage, whereupon the entire inheritance of Lal was transferred in favour of his daughters through mutation No.467 dated 23.01.1908. Thereafter, Mst. Bakhtawar contracted Nikah and Mst. Sardaran died issueless; consequently, the inheritance was transferred in favour of Mst. Bano through mutation No.705 dated 09.06.1912, whereby she was recorded as a limited owner. Mst. Bano died in the year 1916, whereafter mutation No.818 dated 29.02.1917 was attested in favour of Bagh Ali, Fateh son of Muhammad and Muhammad son of Noor Khan. Subsequently, in the year 1980, land measuring 16 Kanals and 4 Marlas was alienated by Muhammad son of Noor Khan in favour of the predecessor-in- interest of the present petitioners through registered sale deed No.1035 dated 02.10.1980.

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The respondents-plaintiffs set up the plea that the entire inheritance ought to have devolved exclusively upon Bagh Ali, being the nearest male collateral of the same degree and that the inclusion of Fateh son of Muhammad and Muhammad son of Noor Khan in mutation No.818 was illegal. Their stance is predicated upon Islamic Law of inheritance, whereas, paradoxically, the petitioners challenged mutation No.818 on the ground that, after the marriage of Mst. Bano, the property was liable to devolve strictly under Muslim Personal Law and not under customary law. However, a careful scrutiny of the pleadings and evidence reveals that neither party specifically pleaded nor proved any definite point when the rule of succession shifted from customary law Riwaj-e-Aam to Muslim Personal Law. From the careful perusal of the facts it is clearly revealed that estate of the deceased Lal, after termination of life estate of daughter, went to collaterals1, now first cousin was third degree collateral and then there were sons of another first cousin, who got the estate by following the principle of representation2. Principle of representation was applied till fifth degree of collateral whereby child/children of deceased collateral would inherit as representative of their father. As per the customary digest for District Attock3, the daughters would not inherit in presence of collaterals of fifth degree without their consent and nearer would exclude farther. However, principle of representation was well known principle and rightly applied in this case. In addition to this, the record is completely silent as to any decree, notification or established practice showing abandonment of custom in favour of Islamic Law prior to the attestation of mutation No.818. The learned Courts below failed to appreciate this fundamental legal requirement and fell into manifest error by assuming applicability of Muslim Personal Law without foundational pleadings or proof.

More importantly and decisively, the suit itself was hopelessly barred by limitation. The respondents-plaintiffs sought declaration and cancellation of mutation No.818 dated 29.02.1917 Customary Law by Rattigan.

Ref. Fatima v. Ghulam (1993 CLC 567) & Ali deceased, represented by (i) Salehon and (ii) Ghulam Rasul, minor sons, through their next friend, Sardara and others v. Shahu (PLD 1956 Federal Court 92) Customary Law District Attock 1911.

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(Ex.D-3) and registered sale deed No.1035 dated 02.10.1980 (Exh.P- 31). The mutation impugned was attested in the year 1917, whereas the sale deed was executed more than two decades prior to the institution of the suit. The suit was filed in the year 2005, i.e., after an inordinate lapse of time. Under Article 120 of the Limitation Act, a suit for declaration must be instituted within six years from the date when the right to sue first accrues. The plea of alleged late discovery is wholly untenable, unsupported by any cogent evidence and appears to be a mere afterthought devised to circumvent the bar of limitation. It is trite law that Once the suit itself was time-barred4, no substantive right could have been adjudicated. Both the learned Courts below have not considered this aspect of the case in its true perspective. Their findings on merits, despite the suit being time- barred, are legally unsustainable and cannot be allowed to stand.

5.Pursuant to the above discussion it is observed that the learned Courts below have failed to adjudicate upon the matter in hand by appreciating law on the subject and when the position is as such, this Court is vested with authority to undo5 the same in exercise of supervisory jurisdiction under section 115, Code of Civil Procedure, 1908.

6.In view of the above, the civil revision in hand is allowed, impugned judgments and decrees dated 16.04.2011 and 11.09.2014 passed by the learned trial Court and the learned Appellate Court are set aside, consequent whereof the suit of the respondents-plaintiff is dismissed. No order as to the costs.

(Ch. Sultan Mahmood) Judge

Approved for reporting.

Judge M. Usman*

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