Mst. Zarin Taja Vs Saifullah and others

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

C.R No. 211-P/2014

Mst. Zarin Taja.... ............ ................Petitioner Vs

Saifullah and others .......... .............Respondents Present: Muhammad Rustam Khan, Advocate, for the petitioner.

Syed Hamad Ali Shah, Advocate, for the respondents.

Date of hearing: 21.07.2026

JU D G M EN T

MUHAMMAD IJAZ KHAN, J.- Through this revision petition, petitioner has challenged the consolidated judgment and decree of the learned Additional District Judge-II, Nowshera dated 16.12.2013, whereby the Civil Appeal No. 46/13 of 2013 filed by the respondents / defendants was allowed, whereas Civil Appeal No. 49/13 of 2013 filed by the petitioner namely, Mst. Zarin Taja was dismissed and consequently the partial decree passed by the learned trial court in her favour vide judgment and decree dated

17.07.2013 was set aside and her suit was also dismissed.

2.Precisely, the facts leading to the filing of this petition are that the present petitioner / plaintiff namely, Mst. Zarin Taja filed a suit for declaration to the effect that she alongwith defendants No.1 to 53 are the legal heirs of Sardar Khan and as such his inheritance mutation No. 263 attested on 18.03.1933 in favour of his two sons namely, Abdullah and Muhammad Yousaf by excluding the present petitioner/plaintiff and other daughters from his succession is illegal, against the facts and law of sharia, and that the petitioner is entitled for her shari share in the legacy of Sardar Khan. She has also prayed for payment of compensation amount with respect to the land acquired for the purpose of WAPDA Employees Cooperative Housing Society, Nowshera being part of the legacy of her father. She has also prayed for possession through separation of her share. The aforesaid suit was contested by the respondents / defendants and as such they filed two sets of written statements i.e. one by defendants No.39 to 48 who are the legal heirs of Mst. Zaitoon (sister of petitioner / plaintiff) and the other by defendants No. 1 to 26 who are the legal heirs of Abdullah and

Muhammad Yousaf (brothers of the petitioner / plaintiff), pleading therein that the suit is hopelessly time barred and that the impugned mutation being executed in the custom era is a past and closed transaction, therefore, the same could not be cancelled.

Keeping in view the aforesaid divergent pleadings of the parties, the learned trial court framed as many as six

(06)issues and the parties were required to produce their respective evidence. In support of her plaint, petitioner / plaintiff namely, Mst. Zarin Taja appeared as PW-1 and she also produced one Abid Ali, Patwari Halqa Mouza Babi as PW-2 who has produced the impugned inheritance mutation of Sardar Khan attested on 18.03.1933 which was exhibited as Ex.PW 2/1. He has also produced the remaining revenue record pertaining to the year, 1928-29 till 2003-04. She also produced Shabir Khan, Patwari Halqa who has produced mutation No. 2837 which was executed by the land owners of Mouza Babi in favour of WAPDA Employees Cooperative Housing Society dated 21.12.1993, In rebuttal, respondents / defendants produced Shaukat Hayat, Tehsildar WAPDA Land Acquisition as DW-1, who has produced Award No. 26 dated 14.12.1992 which was exhibited as Ex. DW 1/1.

Similarly, Muhammad Farooq, Office Kanungo, Nowshera has produced three mutation Nos. 3593, 3592 and 3559 with respect to the legacy of Sardar Khan which were executed by the respondents / defendants in favour of other persons. Respondent / defendant namely, Amjad Hussain who was defendant No.24 and also attorney of the remaining respondents / defendants appeared as DW-4. Thereafter the learned trial court, after hearing the learned counsel for the parties, partially decreed the suit of the petitioner / plaintiff to the extent that the property which were sold out by the respondents/defendants or acquired by the WAPDA for the construction of WAPDA Employees Cooperative Housing Society was excluded from the legacy and in the remaining left out legacy she was held as entitled for her shari share vide judgment and decree dated 17.07.2013. Both the contesting parties considering themselves aggrieved of the aforesaid judgment and decree preferred their respective appeals i.e. Civil Appeal No. 46/13 of 2013 was filed by the respondents / defendants namely, Saifullah and 24 others, whereas Civil Appeal No. 49/13 of 2013 was filed by the petitioner / plaintiff namely, Mst. Zarin Taja. After hearing both the parties, the learned Appeal

Court has allowed the Civil Appeal No. 46/13 of 2013, whereas the Civil Appeal No. 49/13 of 2013 filed by petitioner / plaintiff has been dismissed, and as a result thereof, the judgment and decree of the learned trial court has been set aside and consequently, the suit filed by the petitioner / plaintiff has also been dismissed, hence the instant revision petition.

3.Detailed arguments of both the learned counsel for the parties were heard and the appended record and evidence produced by both the parties were gone through with their able assistance. Learned counsel representing the petitioner argued that the learned Appeal Court has wrongly held that the suit of the petitioner/plaintiff is time barred as since the petitioner/plaintiff namely, Zarin Taja was the direct descendent of Sardar Khan i.e. being his daughter, who has challenged the inheritance mutation of her father in her life time, therefore, in such state of affairs, a suit filed by the petitioner / plaintiff could not be held as time barred especially when the petitioner / plaintiff has specifically pleaded the factum of fraud in para-2 of her plaint. In support of his this contention, learned counsel for the petitioner relied upon the cases reported as “Mst. Bibi Fathul Bari Vs Ubaid Ur Rahman” (2026

CLC 176), “Faqir Ahmed Khan (Deceased) through L.Rs. .vs. Riaz Ahmad and others” (2020 SCMR 346), “Fazal Malik through L.Rs. and others- .vs. Arsala Khan and others” (2019 MLD 262), “Mosam Khan .vs. Sarfraz Khan through L.Rs. and others” (2012 CLC 1944), “Naimatullah Vs Haji Muhammad Mahmood” (2016 YLR 263), “Noor Din (Deceased) Vs Pervaiz Akhtar” (2023 SCMR 1928) and “Ghulam Haider and others .vs. Murad through Legal Representatives and others” (PLD 2012 SC 501). As far as the finding of the learned Appeal Court that the inheritance mutation of Sardar Khan is a past and closed transaction is concerned, learned counsel for the petitioner stated that though the inheritance mutation executed in the custom era could be considered as a past and closed transaction but for that the beneficiary of such mutation has to prove that such Riwaj was in vogue in the relevant days, however, in the present case, the same has not been established by the respondents / defendants and in this regard, he made reference to the statement of DW-4 namely, Amjad Hussain who is defendant No.24 and attorney of rest of the respondents/defendants and further substantiated his contention that there is no reference of any custom in

the impugned mutation, therefore, the learned Appeal Court has wrongly concluded that the impugned mutation was a past and closed transaction. As against this, the learned counsel for the respondents / defendants argued that the inheritance mutation of Sardar Khan has rightly been held as one of past and closed transaction as the respondents / defendants have been able to prove the factum of Riwaj as was in vogue in the relevant days and in this regard, he made reference to the admission made by the petitioner / plaintiff herself as well as by one of her witness namely, Shabir Patwari Halqa in his cross-examination and in this regard, learned counsel for the respondents / defendants relied upon the judgment of this Court reported as “Muzaffar Hussain VS Mst. Bivi” (PLD 2023 Peshawar 12) and judgment of the Larger Bench reported as “Ghulam Haider and others .vs. Murad through Legal Representatives and others” (PLD

2012 SC 501).

4.In view of the aforesaid rival contentions advanced by the learned counsel for the parties, as well as the facts and evidence brought on record by both the parties, the following questions may arise for the determination of this Court, which are:-

I. Whether the inheritance mutation No. 362 attested on 18.03.1933 being executed in the custom era and before the enactment of The Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 (hereinafter is to be referred as “The Act of 1935”) is to be considered as a past and closed transaction or the same could be set aside and the legacy of Sardar Khan is to be distributed as per the prescribed shares amongst all his legal heirs?

II. Whether the instant suit filed by the petitioner / plaintiff on 28.04.2009 seeking declaration of her entitlement in the legacy of her father and thereby seeking setting aside of the inheritance mutation No. 363 attested on 18.03.1933 is barred by limitation?

III. Whether the learned trial court (who has held that for the instant suit limitation is irrelevant) or the Appeal Court (who has dismissed the instant suit being time barred) has applied the correct law to the facts and circumstances of this case?

IV. What is the power of this Court in its Revisional Jurisdiction when the findings of the two Courts below are at variance on the question of law?

V. Whether the petitioner/plaintiff is entitled for the desired decree or not?

5.In order to dilate upon the aforesaid questions, it would be relevant to first understand the inter-se relationship of both the parties, for which it would be

appropriate to reproduce the pedigree table of Sardar Khan, which is as under:-

The aforesaid pedigree table of Sardar Khan would show that both the contesting parties are legal heirs of Sardar Khan, in which the present petitioner / plaintiff namely, Mst. Zarin Taja is his daughter, whereas the defendants No.1 to 53 are the nephew, nieces of the petitioner/plaintiff and children of her deceased two brothers namely, Abdullah, Muhammad Yousaf and four sisters namely, Mst. Shireen Taja, Mst.

Bakhtawara, Bibi Ameena and Mst. Zaitoon, and as such the present petitioner/plaintiff being daughter of Sardar Khan has brought the instant suit on 28.04.2009, whereby she has claimed her share in the legacy of her father and has also challenged the inheritance mutation No. 263 attested on 18.03.1933, vide which his legacy had been devolved upon his two sons namely, Abdullah and Muhammad Yousaf, whereas all his daughters

including the present petitioner who were five (05) in numbers have been excluded from the same.

6.In order to answer question No.I, it would be relevant to mention here that the petitioner/plaintiff has brought a suit seeking her share in the legacy of her father namely, Sardar Khan and has simultaneously prayed for the cancellation of the inheritance mutation No. 263 attested on 18.03.1933, which was executed in the custom era and before the promulgation of The Act of 1935, therefore, it would be relevant to make reference to the legislative history governing and regulating those mutations which had been executed prior to the enactment of The Act of 1935 and thereafter, which is to be reproduced in its chronological order which is as under:-

7.It merits to mention here that before the enactment of The Act of 1935, The N-W.F.P. Laws and Justice Regulation VII of 1901, was in the field and as per Section 27 of the said Regulation, custom was to be the rule of decision and normal law applicable to Muslims will be the Muslim Law but wherever Custom was alleged and proved to have modified the Muslim Law, then that particular customary law would be applicable,when in the meanwhile The Act of 1935 was

enacted on 6th December 1935, in which Sections 2 & 3 being relevant for the present controversy are reproduced below:-

2.Decision in certain cases to be according to Muslim Personal Law.- In questions regarding succession, special property of females, betrothal, marriage, divorce, dower guardianship, minority, bastardy, family relations, wills, legacies, gifts or any religious usage or institution including waqf (trust and trust property), the rule of decision shall be the Muslim Personal Law (Shariat), in cases where the parties are Muslim.

3.Repeal of provision of previous law.

(1)On and from the day of the enforcement of this Act, Section 27 of the N.W.F.P. Law and Justice Regulation (No. VII of 1901) shall be replaced in so far as the Muslims are concerned.

(2)Whenever a question relating to the succession upon the death of a Muslim arises in any court, the rule of decision shall be according to Muslim Personal Law (Shariat) as if that law had been applicable at the time of such death.

The plain reading of the aforesaid provision of The Act of 1935 would show that on the date of its commencement, Section 27 of the Regulation VII of 1901 was repealed insofar as the Muslims are concerned, and these provisions of law further stipulate

that in questions regarding succession, special property of female, marriage, divorce etc. the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims. It further stipulates that whenever a question relating to succession upon the death of a Muslim arises in any Court, the rule of decision shall be according to Muslim Personal Law (Shariat) as if that law had been applicable at the time of such death.

8.Later on, it was in the year, 1950 when through an Amendment Act No. XI of 1950, an amendment was brought in The Act of 1935 and subsection (2) of Section 3 was inserted and a new Section 4 was also added. The said amendment being relevant is also reproduced below:- -

Section 3, subsection (2).-“Whenever a question relating to the succession upon the death of a Muslim arises in any Court, the rule of decision shall, whether such death has taken place before or after the commencement of this Act, be the Muslim Personal Law (Shariat).”

Section 4.-“(1) In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, the persons entitled to succeed to such property upon the termination of the limited interest of the female shall be those persons who would have., been entitled to succeed at the time of

the death of the last full owner had the Muslim Personal Law (Shariat) been the rule of decision governing the succession upon such death.

(2)If any person entitled to succeed under sub section (1) dies before the termination of the said limited interest the share which he would have taken had he succeeded and the heirs entitled to succeed to that share shall be ascertained as follows, that is to say, he shall be deemed to have died immediately after the termination of the said limited interest and the rule of decision governing the succession upon his death shall be deemed to have been the Muslim Personal Law (Shariat).

Provided that the share which the female limited owner would have taken had the Muslim Personal Law (Shariat) been the rule of decision governing the succession upon the death of the last full owner shall devolve on her if her limited interest in the property terminates by reason of her marriage or re-marriage, and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates by reason of her death.”

The aforesaid newly added subsection (2) to Section 3 would show that whenever a question relating to the succession upon the death of a Muslim would arise in any Court then the rule of decision whether such death has taken place before or after the commencement of The Act of 1935 and in either of case, it would be the Muslim Personal Law (Shariat) which is to be applicable.

9.After three years of the aforesaid amendment, a further amendment was brought and subsection (2) of Section 3 was amended vide Amendment Act II of 1953 which reads as under:-

Section 3, subsection (2). Whenever a question relating to the succession upon the death of a Muslim arises in any Court, the rule of decision shall be the Muslim Personal Law (Shariat), and where such death has taken place before the 6th December 1935, the rule of decision shall be according to the Muslim Personal Law (Shariat) as if that law had been applicable at the time of such death.”

This newly introduced subsection (2) in section 3 would also show that whenever a question relating to the succession upon the death of a Muslim arises in any Court the rule of decision shall be the Muslim Personal Law (Shariat), and where such death has taken place before the 6th December 1935, the rule of decision shall be according to the Muslim Personal Law (Shariat) as if that law had been applicable at the time of such death.

The aforesaid language of these amendments would clearly show that through the same, a retrospective effect was given to the applicability of The Act of

10.It would also be relevant to mention here that after the Indo-Pak partition, the Province of Punjab

enacted an Act with the name of “The West Pakistan Muslim Personal Law (Shariat) Application Act,1948 (No. IX)” (hereinafter is to be referred as “The Act of 1948”), which was enacted on 15th March, 1948, and Section 2 of the said Act being relevant is also reproduced below:-

Notwithstanding any rule of custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy), family relations, wills, legacies, gifts, religious usages or institutions including Waqfs, trusts and trust property, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims.

Similarly, in Section 5 of The Act of 1948, it was laid down that save as expressly provided by the provisions of the ibid section 3, the said Act would have no retrospective operation.

11.In order to further streamline the claims of the legal heir with respect to a legacy regarding which certain transactions / mutations have been executed before The Act of 1935, for which The West Pakistan Act V of 1962 was enacted by all the four Provinces namely, Punjab / Sindh / Balochistan / Khyber

Pakhtunkhwa Muslim Personal Law (Shariat) Application Act (West Pakistan Act V) of 1962 (hereinafter is to be referred as “The Act of 1962”), which was enacted on 31st December, 1962 and through the said Act, The Act of 1935 and The Act of 1948 were repealed. In view of the aforesaid development, and due to the change of law in the form of The Act of 1962 where retrospective effect was given only to Sections 3, 4 & 5 of the ibid Act which pertains only to limited estates under the customary law, while rest of the provisions of The Act 1962 were applied prospectively.

12.It would be relevant to mention here that it was in the year 1981, when the Federal Shariat Court vide judgment dated 19.05.1981 passed in Shariat Petition No.13-R of 1980 directed Government of Punjab to carryout necessary amendment in Section 2 of The Act of 1962. This Judgment of the Federal Shariat Court was upheld by the Shariat Appellate Bench of the Apex Court and thereby directions of the Federal Shariat Court were endorsed which judgment is reported as “The Federation of Pakistan through Secretary, Law & Parliamentary Affairs, Islamabad VS. Muhammad Ishaque and another” (PLD 1983

Supreme Court 273). As per the aforesaid directions of the Federal Shariat Court and Supreme Court Shariat Appellate Bench, Section 2-A was inserted in The Act of 1962 through Punjab Ordinance No.XIII of 1983 which reads as under:

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 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)any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act;

(c)all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith:

Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees.

The aforesaid newly introduced amendment would show that on one hand, it starts with a non- obstante clause, and on the other, it has protected all the transactions before the commencement of The Act of 1948 where a male heir had acquired agriculture land under any custom from his predecessor and as such on devolving such legacy on male heir, he has to be considered as an absolute owner of such land and even all decree / judgments / orders of any Court affirming the right of any reversioner under the custom or usage, were also to be void, in-executable and of no legal effect. The aforesaid amendment prompted a good number of people to resort for claiming their right under the said amendment and in this regard, though the amendment was made in the Province of Punjab, however, the people of all other Provinces including that of Khyber Pakhtunkhwa also approached various Courts of law to seek benefit of the judgment of the Federal Shariat Court and of the Supreme Court Shariat Appellate Bench and in the process a similar controversy came up for hearing before the Supreme

Court regarding the applicability of the law in the Province of Khyber Pakhtunkhwa in the case of “Muzaffar Khan Vs. Mst. Roshan Jan and others” (PLD 1984 Supreme Court 394), in which it was held as under:-

“The above decision of the Federal Shariat Court was challenged by the Federation of Pakistan before this Court, but the said appeal too was dismissed by this Court in Federation of Pakistan v. Muhammad Ishaq and another P L D 1983 S C 273, and the direction. of the Federal Shariat Court for making the above amendment in the law, was upheld. It was noted that the Federal Shariat Court had ordered this to be done by the 30th June, 1981, but since this direction was stayed by this Court pending the disposal of the appeal, it was accordingly ordered, after the dismissal of the appeal by this Court, that the necessary amendment should be carried out by the 30th June, 1983. The necessary amendment has, indeed, been carried out in the Punjab by promulgating the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983. But somehow, the N.-W. F. P. Government, in the belief that this was not necessary in their Province, presumably in view of the law laid down in Sahib Jan v. Wali Dad, has not carried it out. Anyhow, this does not affect the situation.

Under sub-clause (b) of sub-Article (3) of Article 203-D of the Constitution, it is provided as follows;

203-D.-. . . . . . .

(3)If any law or provision of law is held by the Court to be repugnant to the injunctions of Islam,

(a). . . . . . .

(b)such law or provisions shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect.

Thus, as soon as the decision of this Court took effect i.e. as from 30-6-1983, the words underlined" in section 2 of the Act of 1962, namely “subject to the provisions of any enactment from the time being in force” ceased to have effect. Consequently, even if it was found that after the promulgation of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and the repeat of the N.-W. F. P. Muslim Personal Law (Shariat) Application, 1935, the present case fell to be decided on the basis of the interpretation placed on the provisions of section 2 of the aforesaid Act of 1902 by this Court in the case of Mst. Khaiun v. Mulla, namely, that the Shariat Acts neither enhanced nor diminished the powers of alienation of a holder under custom and a person taking property as ancestral property under, custom continued to be governed by agricultural custom and his powers of alienation w.-re limited, the position of Muhammad Aslam Khan would not now be affected even though he had succeeded to the property before the promulgation of the 1935 Act, when the customary law was in force because, after the above-mentioned change in the law, the appellant would not have any right to challenge the alienation made by Muhammad Aslam Khan in favour of his sisters, as there is now no

doubt left that the N.-W. F. P, Act of 1935 is to be given retrospective effect and that whenever a dispute comes before a Court of law with respect to succession to the estate of a deceased Muslim the deceased will be deemed to have died under the domain of Muslim Law, even if the death' bad taken place before the coming into force of the N.- W. F. P. Muslim Personal Law (Shariat) Application Act of 1935.”

In view of the above clear-cut finding of the Apex Court, the law was made applicable to the whole of Pakistan irrespective of the origin of the original litigation and thus the plea of the learned counsel for the petitioner that since the amendment was made in the Province of Punjab is also misplaced.

13.After the aforesaid clear-cut finding of the Apex Court that as the directions were given by the Federal Shariat Court and the Supreme Court for the amendment in The Act of 1962, therefore, various cases from across the country reached the Supreme Court and as such the Apex Court constituted a larger bench comprising of Five Hon’ble Judges in the case of “Ghulam Haider and others Vs. Murad through Legal Representatives and others” (PLD 2012 Supreme Court 501) whereby after detailed discussion and touching the transaction executed under

the custom era, applicability of The Act of 1935, The Act of 1950, The Act of 1953 and The Act of 1962 finally determined that any acquisition made by a heir acquiring agricultural land of a Muslim, shall be deemed to be an absolute owner, and as such all the transfer instruments executed prior to the enactment of The Act of 1948 before 15.03.1948 were held as past and closed transaction, however, where rights of inheritance were acquired subsequent to 15.03.1948, then inheritance had to be governed under Shariat Act and not under the custom existing prior thereto. Para- 10 and 11 of the said judgment being relevant are reproduced below:-

10.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).

11.In view of the conclusions arrived at by us above the entire land acquired by Murad through Mutation No. 4536 attested on 29-10-1944 under the customary law of inheritance was to be deemed to have been acquired by

him under the Muslim Personal Law (Shariat) and, thus, Mst. Bano's suit filed against that acquisition had to fail and the learned Judge-in-Chamber of the Lahore High Court, Multan Bench, Multan was quite justified in holding so. However, as regards Murad's suit filed against Mutation No. 5631 attested on 28-2-1959 in favour of Mst. Sehati and Mst. Bano the said suit should also have failed because the land subject matter of that mutation had never been formally "acquired" by Murad before March 15, 1948. Section 2-A introduced through Ordinance XIII of 1983 was applicable only to those acquisitions of agricultural land which acquisitions had come about prior to March 15, 1948 and in the case of the land subject matter of Mutation No.5631 there was no formal acquisition of that land by Murad till attestation of that mutation on 28.2.1959 and, thus, after March 15, 1948 the said land could have devolved upon the heirs of Lal deceased only under the Islamic law of inheritance and not under the customary law of inheritance which by then had become extinct. In this view of the matter the suit filed by Murad challenging Mutation No.5631 attested on 28.2.1959 was liable to be dismissed.

The aforesaid view of the Apex Court has also been adopted by this Court in the case reported as “Muhammad Nawaz Vs Ameer Bahadur” (PLD 2023 Peshawar 12). Para-7 of the said judgment being relevant is reproduced below:-

7.Thus, the law regarding the retrospective application of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 is by now

settled by the Apex Court and any mutation if attested during the period of riwaj prior to the application of N.W.F.P. Muslim Personal Law (Shariat) Application Act, 1935/Punjab Muslim Personal Law (Shariat) Application Act, 1948 being a past and closed transaction would not be subject to the application of the Act No.V of Similarly, this Court in an unreported judgment rendered in CR No. 169-D of 2017 decided on 02.11.2022 has also endorsed the aforesaid view of the Apex Court to the effect that all transactions-cum- acquisition under the customary law had been given protection which has finalized before 6th December, 1935, the day when The Act of 1935 was promulgated.

Recently, the Lahore High Court in the case of “Jamshed Khan and 6 others .vs. Akbar Khan and 15 others” (PLD 2026 Lahore 146) has also affirmed the aforesaid view by observing that keeping in view the juxtaposing the facts of the case in hand with the ratio in Ghulam Haider and others supra would lead to the conclusion that since the Impugned Mutation in this case was sanctioned subsequent to the promulgation of the Shariat Act and rights of inheritance were ‘formally acquired' by Majeed and Mst. Sifta, subsequent to March 15, 1948, therefore, inheritance had to be governed under the Shariat Act and not under the Custom or Usage existing prior thereto.

14.In view of the above legislative history, the judgment of the Supreme Court as well as the judgment of this Court, it can safely be concluded that the plea of the petitioner/plaintiff that the inheritance mutation No. 362 attested on 18.03.1933 could not be treated as past and closed transaction is incorrect and as such the learned Appeal Court has rightly concluded that it is a past and closed transaction.

15.During the course of arguments, learned counsel for the petitioner did agreed that all the mutations / acquisition which had been acquired / executed before the enactment of The Act of 1935 could be given protection and could be consider as a past and closed transaction, however, the condition precedent for the same is that the beneficiary of such transaction / acquisition has to prove that the Riwaj of excluding the female heir and that the legacy has to be devolved upon the male heir is to be established and as as per his wisdom, in the present case, the respondents / defendants have not been able to prove that the ibid Riwaj / customary law was in field, however, such submission of the learned counsel for the petitioner is against the record / evidence produced by the parties as petitioner / plaintiff namely, Mst. Zarin Taja when

herself appeared as PW-1, she in her cross-examination has made the following admission:-

يہ درست ہے کہ متوفی سردار خان کے وفات کے وقت علاقہ ميں رواج تها۔

Similarly, when she produced Shabir Khan, Patwari Halqa Mouza Babi as PW-2, he too in his cross examination has admitted as under:-

18.03.1933 مصدقہ263 انتقال نمبر ميں خانہ ملکيت مالکان مسلم وغيره درج مصدقہ263 ہے۔ )انتقال نمبر زمانہ رواج ميں درج و18.03.1933 تصديق ہوا تها ۔ ا ُسی رواج قانون کے تحت (وراثت ميں بيٹيوں کو حق نہيں ملتا تها He has further admitted that:-

ميں پشاور1933 يہ درست ہے کہ سال ڈويژن يا صوبہ سرحد کے تمام علاقوں ميں رواج کا قانون تها۔

In view of the above, when petitioner/plaintiff herself as well as her witness have categorically admitted that in those relevant days, the said Riwaj was in vogue in the area, then it is reasonably established that the impugned inheritance mutation was attested as per Riwaj in vogue in the area at the relevant time.

16.As far as the question No.II is concerned that as to whether the suit filed by the petitioner on 28.04.2009 seeking declaration of her entitlement in the legacy of her father and for setting aside of the inheritance mutation dated 18.03.1933 is barred by limitation or not, the very contents of the plaint would show that the petitioner / plaintiff has challenged an inheritance mutation No. 263 attested on 18.03.1933 and she has filed the instant suit on 28.04.2009. In the said suit, she has also prayed for the recovery of her share in the compensation amount which has been acquired by the WAPDA for the purpose of construction of WAPDA Employees Co-operative Housing Society. In the given facts and circumstances, the evidence as produced by the parties would be relevant. It is part of the record that on one hand, the inheritance mutation No.263 was attested way back on 18.03.1933 and as such the petitioner / plaintiff has challenged the same after 76 years and on the other, it is also part of the record that in the intervening period, the official respondents No. 54 & 55 have acquired a major portion of the legacy of Sardar Khan vide Award No. 26 dated 14.12.1992 (Ex.DW 1/1) for the construction of WAPDA Employees Co-operative

Housing Society. It is also an admitted fact that the petitioner / plaintiff has not disclosed the date of acquiring the knowledge of inheritance mutation dated 18.03.1933 or the date of knowledge of the acquisition of land by the WAPDA for the construction of WAPDA Employees Co-operative Housing Society, therefore, in the given facts and circumstances, the applicability of the limitation law to the inheritance cases, particularly, where any overt or explicit act has been done by the defendants which amounts to denial the right of a plaintiff, then the period of limitation is to be reckoned from the date of such overt/explicit act and thus even if the petitioner was minor at the time of impugned inheritance mutation in the year, 1933 then she may have challenged the said inheritance mutation after attaining the age of majority or she may have brought the instant suit within the prescribed period of limitation from the date of issuance of Award on 14.12.1992 but she has filed the instant suit on 28.04.2009 and as such it is/was a time barred suit, and thus the learned trial court has wrongly held that the suit of petitioner / plaintiff is within time which finding has rightly been reversed by the Appeal Court. Since the question of applicability of Limitation Law to the

inheritance cases has arisen as one of the moot contesting question before this Court in a good number of cases, therefore, this Court deem it appropriate to address the same in considerable detail.

17.In order to determine the applicability of limitation law in inheritance cases, it would be relevant to mention here that it depends on the nature of the claim and the relief sought. A legal heir’s right to inherit generally accrues immediately upon the death of the predecessor but different limitation principles do apply for initiating legal proceedings depending on whether the heir is seeking partition or he is also challenging a prior transaction or a transaction excluding his right to the inheritance. In cases where there is a simple claim for inheritance, in which the property is joint and no co-heir has openly denied the claim of another then a suit for partition or suit for separation of a share in the legacy is generally are not to be considered as barred by limitation merely by passage of time and in such cases possession of co-heir is ordinarily deemed to be in possession of all co- heirs. In the aforesaid kind of suit, the principle of waiver, estoppel, acquiescence and adverse possession would also not be applicable. In other kind of suits where one heir has excluded another and has clearly and

unequivocally denied the right of co-heir and has asserted exclusive ownership or executed any transaction then in such eventuality the limitation will run from the date of such overt act in the form of striking any transaction or transfer of possession of the part of a legacy in any other form. It would also be relevant to mention here that in those inheritance cases, in which a plaintiff has challenged a gift, a sale deed or any other alienation and he is seeking the cancellation of such instrument executed by the common predecessor or by a heir, then the limitation period would be applicable to that specific relief and in such cases the plaintiff could not avoid limitation by merely framing the suit as one for declaration of inheritance.

Keeping in view the aforesaid kinds of suit-cum-claim in a legacy, now it is almost settled that the facts and circumstances of each case has to be considered and it could not be out-rightly assumed or inferred that the question of limitation is irrelevant in inheritance cases rather the correct approach is that the conduct of the plaintiff who is seeking his / her share in a legacy has to be considered and then accordingly the issue of limitation is to be decided. It is also to be seen that whether a direct descendant L.R has sought his / her

share in the legacy or his / her next or next to next generation has come forward to claim share in the legacy of their predecessor but in any case date of denial on the part of defendant is to be clearly pleaded and in case of non-pleading then such date could be inferred and determined by the court itself from any overt act of denial of the defendant like execution of any transaction in the form of any sale, gift, mortgage, acquisition etc., and thus in case of availability on record the date of such actual denial in any of the above stated form, then the period of limitation for the purpose of filing a suit is to be reckoned from such date and in such cases, a suit for declaration claiming share in a legacy has to be brought within six (06) years from the date of such an overt act-cum-actual denial.

Furthermore, in inheritance cases pertaining to the legacy, if a plaintiff alleged any fraud on the part of the defendant then in such eventuality too, on one hand, he / she has to specifically plead the nature of such fraud and has to prove the same during the course of trial and on the other, he / she has to mention the date of knowledge of such fraud. It has been noted in many cases that inheritance cases are being brought to the Courts by the next or second or third or even fourth

generation of the common predecessor, however, limitation in such categories of cases are to be strictly adhered and addressed to as any fact of fraud or misrepresentation or for that matter which has taken place Sixty (60) to hundred (100) years ago could not be easily established for want of proof due to efflux of time and of course, due to the death of real and original stakeholder. In a case1 the Apex Court has held that a suit instituted by a female legal heir for declaration of her ownership rights as to the property left by her deceased father in his inheritance, against her brother who denies her rights is thus governed by the provisions of Article 120. To decide whether such a suit is barred by limitation, the six-year period of limitation provided by Article 120 is to be counted from the time when the right to sue for declaration accrues as provided therein. The question, when the right to sue for declaration has accrued in a case, depends upon the facts and circumstances of that case, as it accrues when the defendant denies (actually) or is interested to deny (threatens) the rights of the plaintiff as per Section 42 of the Specific Relief Act, 1877. The actual denial of rights gives rise to a compulsory cause of action and Saadat Khan and others .vs. Shahid-ur-Rehman and others (PLD 2023 SC 362)

obligates the plaintiff to institute the suit for declaration of his rights, if he wants to do so, within the prescribed period of limitation; while in case of a threatened denial of rights, it is the option of the plaintiff to institute such a suit on a particular threat. On the actual denial of rights, the cause of action and the consequent right to sue matures for instituting the suit for declaration;

whereas every threatened denial of rights gives rise to a fresh cause of action, and thus a fresh right to sue accrues on such a denial. This Court has, therefore, decided the question of limitation in the cases relied upon by the High Court and referred to by the counsel for the petitioners, in the peculiar facts and circumstances of each case. Similarly, in Mst. Grana’s case2, the plaintiff there has filed a suit in the year, 1991 challenging property transfer dating back to 1916, the plaintiff took no action for over 75 years, the Court ruled that her inaction and failure to challenge the transfer demonstrated acquiescence. Para-6 of the said judgment being relevant is reproduced below:- “6. It appears that in a suit which involves some element of inheritance the Courts are generally quick to declare that the law of limitation would not be attracted. It is not in all cases of inheritance that the question of limitation becomes irrelevant. Even in Ghulam Ali's case the Court recognized that there "Mst. Grana through LRs and others v. Sahib Kamala Bibi and others (PLD 2014

SC 167)

could be exceptional circumstances wherein a suit based on inheritance issue of limitation may become relevant. This Court recently in some cases had invoked the principle of time limitation and acquiescence of the plaintiff material in suits of inheritance. In Mst. Phaphan v. Muhammad Bakhsh (2005 SCMR 1278) a suit for declaration and possession was filed in the year 1983 by the plaintiff/petitioner claiming to be the owner of the inherited property. The suit was held to be barred by time wherein mutations of the year 1959 and 1967 were challenged in the year 1983 when the plea of the defendants was that the plaintiffs had alienated the property of her own free-will. The plaintiff's plea of being pardanashin lady and reliance on the case of Ghulam Ali was not accepted as the plaintiff was found to have remained in deep slumber for 24 years despite the fact that the physical possession of the land was passed on to the defendant. Recently in the case of Lal Khan v Muhammad Yousaf (PLD 2011 SC 657) this Court had set aside the concurrent findings of the three Courts and dismissed the suit filed on 13-5-1970, where the plaintiff had challenged inheritance mutation of 13-2-1947; the Court held it to be barred by time. The rationale of the law of limitation has been reiterated in Atta Muhammad v. Maula Bakhsh (2007 SCMR 1446) where the concurrent findings of the three Courts were set aside and the suit filed by the respondents/plaintiffs in the year 1988 questioning the inheritance mutation of 1942 was declared to be barred by time. The Court held: --

"The law of limitation provides an element of certainty in the conduct of human affairs. Statutes of limitation and prescription are, thus, statutes of peace and repose. In order to avoid the difficulty and errors that necessarily result from lapse of time, the presumption of coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so, within that period; otherwise his rights if any, will be forfeited as a penalty for his neglect. In other words, the law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts. It requires that persons must come to Court and take recourse to legal remedies with due diligence. There have been cases where even to claim inheritance law of limitation was applied”.

The aforesaid view as delivered in Grana’s case has again been affirmed by the Apex Court in Faizullah’s case3 and in this regard, para-13 of the said judgment being relevant is reproduced below:-

13.The heirs, feeling themselves aggrieved, challenged the same by claiming their right of inheritance after a considerable delay and such cases were dismissed on the question of limitation for want of proof and justifying the delay. Yes, in such like cases, we can agree with the ratio laid down in the case of Mst. Grana through legal heirs and others v. Sahib Kamal Bibi (PLD 2014 SC 167) that law of limitation involving matter of inheritance cannot be ignored altogether but the narrow line of distinction is that where the predecessor/propositus has transferred his property by way of sale, gift etc. in his lifetime and after his death, the legal heirs claiming right of inheritance regarding said property after lapse of considerable time by questioning such transfer cannot be ignored lightly.

18.In order to further address the question of limitation to the cases of inheritance and as stated herein above that whenever the defendant has made any over / explicit act then the limitation is to be run from the date of such act and as the petitioner / plaintiff through the instant suit has prayed for the cancellation of inheritance mutation dated 18.03.1933 as well as for the payment of compensation amount with respect to land acquired by the official respondents No.54 and 55 in the year, 1992, whereas she has filed the instant suit Faizullah and others .vs. Dilawar Hussain and others (2022 S C M R 1647)

on 28.04.2009. Similarly, she has neither disclosed the date of obtaining knowledge of the impugned inheritance mutation of 1933 nor the date of knowledge of acquiring the major portion of the legacy of Sardar Khan through an Award of 1992, therefore, she has not even bothered to disclose a date of her knowledge so as to determine the limitation from such date. In Mst. Grana v. Sahib Kamala Bibi’s case supra, it was held that the law of limitation would be relevant when the conduct of the claimant demonstrates acquiescence and particularly when third party interest is created in the inherited property. Similarly, in another case4 the Apex Court has held that so far as the finding of the revisional court on the issue of limitation is concerned, we find the same is in accord with the law declared by this Court in Mst. Gharana v. Sahib Kamal Bibi’s case and Atta Muhammad v. Maula Bakhsh’s case, as well as in the recent case of Ghulam Qasim v. Mst.

Razia Begum’s case wherein after referring to some of the leading judgments on the issue, this Court opined that the law of limitation would be relevant in inheritance cases, where third party interest has been created in the property, as is in the present case. Likewise, the Apex Salamat Ali and others .vs. Muhammad Din and others (PLD 2022 SC 353)

Court in another case5 has held that there was a dispute over the legacy of Essa Khan who was survived by a son namely, Abdur Rehman and two daughters namely, Mst. Mehro and Mst. Afsro. After the death of Mst. Mehro and Mst. Afsro, their legal heirs brought a suit in the year, 2004 challenging the inheritance mutation attested on 23.03.1935. The Apex Court ruled that since on one hand, Mst. Mehro and Mst. Afsro had not, in their life, challenged the said inheritance mutation executed in favour of their brother and further that the said mutation dated 23.03.1935 had been challenged through a suit filed on 19.11.2004 and on the other, during the intervening period from 1935 till 2004, their brother namely, Abdur Rehman had sold out a portion of the said property to a third party and the Small Industry Department (SDA) had also acquired a portion of the suit land and the compensation amount had also received by the said Abdur Rehman, therefore, in the given facts and circumstances, the Apex Court has concluded that where there is actual denial of the rights of a plaintiff due to any act including a sale or acquisition of Saadat Khan and others .vs. Shahid-Ur-Rehman and others (P L D 2023 Supreme Court 362)

property then the limitation will start from the date of such actual denial in the form of the said transaction and as such it has further been concluded that since the transaction of sale and acquisition of certain portion of land had taken place in the life time of Mst. Mehro and Mst. Afsro, and they had not challenged the same in their life and it was after their death when the legal heirs have challenged the same, therefore, in such eventuality, the period of limitation had already been commenced in the life of Mst. Mehro and Mst. Afsro, and ultimately the suit has been found as time barred.

Para-9 of the said judgment being relevant is reproduced below:-

“We may say at the very outset that in view of the provisions of the residuary Article 120 of Schedule-I to the Limitation Act 1908, there can hardly be any suit to which the bar of limitation does not apply. As per the said Article a suit for which no period of limitation is provided elsewhere in the Schedule, the period of limitation for that suit is six years from the time when the right to sue accrues. No specific Article of Schedule-I to the Limitation Act provides a period of limitation for a suit instituted by a person, under Section 42 of the Specific Relief Act 1877, for declaration of his ownership rights to any property against a person denying his said rights; therefore, the residuary Article 120 applies to such suit. A suit instituted by a female legal heir for declaration of her ownership rights as to the property left by her deceased father in his inheritance, against her brother who denies her rights is thus governed by the provisions of Article 120. To decide whether such a suit is barred by limitation, the six-year period of limitation

provided by Article 120 is to be counted from the time when the right to sue for declaration accrues as provided therein. The question, when the right to sue for declaration has accrued in a case, depends upon the facts and circumstances of that case, as it accrues when the defendant denies (actually) or is interested to deny (threatens) the rights of the plaintiff as per Section 42 of the Specific Relief Act, 1877. The actual denial of rights gives rise to a compulsory cause of action and obligates the plaintiff to institute the suit for declaration of his rights, if he wants to do so, within the prescribed period of limitation; while in case of a threatened denial of rights, it is the option of the plaintiff to institute such a suit on a particular threat. On the actual denial of rights, the cause of action and the consequent right to sue matures for instituting the suit for declaration; whereas every threatened denial of rights gives rise to a fresh cause of action, and thus a fresh right to sue accrues on such a denial. This Court has, therefore, decided the question of limitation in the cases relied upon by the High Court and referred to by the counsel for the petitioners, in the peculiar facts and circumstances of each case.”

In the same way, in a case6 the Apex Court has held that the learned counsel for the petitioner has relied on the case of Ghulam Ali (PLD 1990 SC 1) to argue that law of limitation does not attract in inheritance cases.

However, this contention holds no merit, as the august Supreme Court has already clarified this aspect of the matter in the case of "Mst. Grana through LRs and others v. Sahib Kamala Bibi and others (PLD 2014 SC Akhtar Nasir Ahmed .vs. Province of Punjab through District Collector Gujrat and others (PLD 2024 SC 1268)

19.In view of the above discussion and exposition of law on the subject as enunciated by the apex court from time to time, it is held as under:-

I. (i) In cases where there is a simple claim for inheritance, in which the property is lying joint and no heir has openly denied the claim of co-heir then in such cases a suit for partition or a suit for separation of a share in the legacy are not to be considered as barred by limitation merely due to efflux/passage of time and in such cases possession of a heir is to be considered as possession of all co-heir and as corollary the principles of acquiescence, estoppel, waiver and limitation would not be applicable.

(ii)In cases where a heir is in possession of his / her share to the exclusion of all co-heirs but the revenue record is not in line with his prescribed share, then in such cases too, the law of limitation would not be a hurdle in the way of such heir / plaintiff.

II. In a suit(s) where one heir has clearly and unequivocally denied the right of co-heir and has also executed transaction(s) adversely affecting the rights of the plaintiff- cum-co-heir then in such eventuality the limitation would be relevant in which the following categories of suits may be referred:- i. where the predecessor has executed a transaction in the form of any sale, gift, exchange etc. and then such predecessor has not challenged the said transaction in his life time and after his death his L.Rs have challenged the said transaction executed by their predecessor.

ii. where a direct decendent L.R has challenged a transaction executed by his predecessor in his life time, which had also not been challenged by the said predecessor in his life time. iii. where any transaction or even an inheritance mutation had not challenged by the predecessor of the plaintiff in his life time nor by his next generation and has ultimately challenged the same by second or third or fourth generation, then in such cases the

limitation law is to be applied with full force as was applied by the apex court in the following cases;

a. “Mst. Phaphan v. Muhammad Bakhsh (2005 SCMR 1278) [In this case, inheritance mutations were made in the year, 1959 and 1967 and the suit was brought in the year, 1983, so the suit was held as time barred]; b. “Lal Khan v. Muhammad Yousaf” (PLD 2011 SC 657) [In this case, the suit was brought in 1970, in which inheritance mutation of 13.02.1947 was challenged, so the suit was held as time barred];

c. “Atta Muhammad v. Maula Bakhsh” (2007 SCMR 1446) [In this case, the suit was brought in 1988, in which inheritance mutation of 1942 was challenged, so the suit was held as time barred];

d. “Muhammad Rustam and another .vs. Mst. Makhan Jan and others” (2013 SCMR 299) [In this case, inheritance mutation of 1927 was challenged, which was decreed by the trial court in the year 2006 but the High Court and Supreme Court dismissed the said suit being time barred]; e. “Mst. Grana through legal heirs and others v. Sahib Kamala Bibi and others” (PLD 2014 SC 167) [In this case, the suit was brought in 1991, in which inheritance mutation of 1916 was challenged, so the suit was held as time barred];

f. “Salamat Ali and others .vs. Muhammad Din and others” (PLD 2022 SC 353) [In this case, Hafeezullah transferred the share of Meherullah in his own name in 1958- 60 and then sold a portion of that land

in 1994 & 1997 but the suit was brought in March 2006, so the suit was held as time barred]; and g. “Saadat Khan and others .vs.

Shahid-Ur-Rehman and others” (PLD 2023 SC 362) [n this case, the suit was brought in 2004, in which inheritance mutation of 1935 was challenged, so the suit was held as time barred].

iv. In cases where a heir has asserted himself as owner and he has executed a transaction(s) or has made any other overt / explicit act(s) to the exclusion of co-heir then the period of limitation would run and would be reckoned from the date of such transaction / overt / explicit act and if such co-heir alleged any fraud or alleged concealment of such transaction then such plaintiff has not only to prove such fraud-cum- concealment but has also to mention the date of his first knowledge of such fraud / concealment.

v. In those cases where a transaction has executed by the predecessor or by the heir to the exclusion of co-heir, whereby rights of a third party has created through an overt / explicit act then in such cases too, the date of execution of such overt / explicit act shall be taken as the date for accrual of cause of action as well as for reckoning of limitation period. For this declaration, wisdom can be drawn from the cases titled “Mst. Granan through legal heirs and others v. Sahib Kamala Bibi and others” (PLD 2014 SC 167), “Ghulam Qasim and others .vs. Mst. Razia Begum and others” (PLD 2021 SC 812), “Salamat Ali and others .vs. Muhammad Din and others” (PLD 2022 SC 353), “Saadat Khan and others .vs. Shahid-Ur-Rehman and others” (PLD 2023 SC 362) and “Akhtar Nasir Ahmed .vs. Province of Punjab through District Collector Gujrat and others” (PLD 2024 SC

20.In view of the above, it is held that since from 1933 till 1992, respondents / defendants have categorically denied the right of petitioner / plaintiff through execution of transaction to the third party as well as by receiving the whole compensation amount for the property which was part of the legacy and which was acquired by the WAPDA for the construction of WAPDA Employees Co-operative Housing Society, but the present petitioner remained inactive, therefore, her suit filed on 28.04.2009 is hopelessly time barred.

21.As far as the question No.III is concerned that as to whether the trial court or the Appeal Court has applied the correct law, as discussed hereinabove in preceding paras from 6 to 18, it is safely concluded that the learned Appeal Court has applied the correct law to the facts and circumstances of this case, whereas the learned trial court has applied an incorrect law.

22.As far as question No.IV is concerned, it is relevant to mention here that in this case the learned trial court has partially allowed the suit of the petitioner / plaintiff, whereas the learned appeal court has dismissed the same, therefore, in cases where the

judgement and decree of the two courts below are at variance, then this court in its revisional jurisdiction, shall determine and analyze that which judgment of the two is legally sustainable. It is also settled law that in case of inconsistency of the judgment and decree between the appellate Court and the trial Court, the High Court shall see that as findings of which of the Court are based on proper appraisal of evidence as well as proper appreciation of the relevant law and as such in this case after analyzing and evaluating the same, the findings recorded by the appeal court are correct and are the result of proper appreciation of law. In a case7, it was held by the Apex Court that in a case of inconsistency of judgment between the two Courts below the High Court was supposed to give its findings after reappraisal of the entire evidence. It was further held in the aforesaid judgment that the settled law in this regard is that revisional Court in such like situation has to re-appraise the entire evidence just to determine as to findings of which Court were based on proper appraisal of evidence and appreciation of law.

Similarly, in another case8, it was held by the Apex Court that if the finding of fact reached by the first “Mst. Azra Gulzar v/s Muhammad Farooq & another” reported as 2022SCMR 1625 Madan Gopal and 4 others v. Maran Bepari and 3 others” reported at PLD 1969 SC 617

appellate Court is at variance with that of the trial Court and as such the finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. This view is fortified by a long chain of judgments i.e. Alloo v. Sher Khan and others (PLD 1985 SC 382), Abbas Ali Shah and 5 others v. Ghulam Ali and another (2004 SCMR 1342), Abdul Aziz v. Khuda Dad Khan (2004 SCMR 1046), Karim Bakhsh through L.Rs. and others v. Jindwadda Shah and others (2005 SCMR 1518), Muhammad Din and others v. Mst. Naimat Bibi and others (2006 SCMR 586), Muhammad Hassan v. Khawaja. Khalil ur Rehman (2007 SCMR

576)and Q.B.E. Insurance (International) Ltd. v.

Jaffar Flour and Oil Mills Ltd. (2008 SCMR 1037). It was further held in the aforesaid judgment that the settled law in this regard is that revisional Court in such like situation has to re-appraise the entire evidence just to determine as to findings of which Court were based on proper appraisal of evidence and appreciation of law.

23.As far as question No.V is concerned that as to whether the petitioner / plaintiff is entitled for the decree, as discussed hereinabove that on one hand, the impugned inheritance mutation No. 263 attested on 18.03.1933 has been held as past and closed transaction being executed before the enactment of The Act of 1935 and that the suit filed by the petitioner / plaintiff is hopelessly time barred, therefore, she is not entitled for the desired relief / decree.

24.In view of the above discussion and exposition of law on the subject, it is held that the impugned consolidated judgment and decree of the learned Appellate Court dated 16.12.2013 is not only in accordance with law but is also well-reasoned and is the result of a correct application of law on the subject, therefore, the same is maintained and upheld, while the instant revision petition being devoid of any merits is hereby dismissed.

25.Before parting with this judgment, it has been noted in many cases arising out of inheritance disputes among the legal heirs of a common predecessor as well as in those cases where property has been devolved or acquired in the customary era

to the effect that certain trial Courts and appeal Courts are not taking into consideration the settled principles of law qua the applicability of the law of limitation to the aforesaid cases as well as the dictum as laid down by the Larger Bench of the Apex Court in the case of Ghulam Haider (supra), therefore, it would be appropriate that let this judgment be placed before all the learned District Judges of Khyber Pakhtunkhwa, with further direction to them that the same be circulated to the appeal Courts and to the civil Courts under their respective administrative control, particularly to those courts who are dealing with inheritance cases. The Additional Registrar (J) of this Court is directed to send copies of this judgment to all the learned District Judges of Khyber Pakhtunkhwa for onwards circulation and guidance.

Announced

Sd/‐

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan Noor Shah