Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: SHAHRO and others VS Respondent: Mst. FATIMA and others
Court Name: Supreme Court of Pakistan Judge(s): Nasir Aslam Zahid, Abdur Rehman Khan Title: SHAHRO and others vs Mst. FATIMA and others Case No.: C.R. No,44-D of 1988 Civil Appeal No,560 of 1994 Date of Judgment:1998-07-27 Reported As: PLD 1998 Supreme Court 1512 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' NASIR ASLAM ZAHID, J.---The disputed lands, subject-matter of the present appeal, admittedly belonged to Mitha son of Inayat, who died in 1936. According to the plaintiffs, who had filed a suit in 1978 in the Court of Civil Judge, Dera Ghazi Khan, deceased Mitha left behind, as his legal heirs, Mst. Janat (widow), Mst. Fatima and Mst. Subhal (daughters) and one brother Bahadar. In the suit, which was filed by widow Mst. Janat and daughter Mst. Fatima of deceased Mitha, it was claimed that, after the death of Mitha, the plaintiffs being owners remained in possession and had been paying the land revenue and some times back to sell some part of the land an inspection was made of the revenue record and it was found that the land was mutated in the names of defendants Shahro, Musa and Wahid Bakhsh as the sons of Bahadar (brother of original owner Mitha). It was pleaded that Mutation No,492 dated 16-5-1937 was got fraudulently attested and sanctioned by the sons of Bahadar by showing that Mitha had died issueless although, when Mitha died, he was survived by the said two daughters and the widow. A declaration was sought that the disputed lands belonged to the plaintiffs and the said mutation, fraudulently attested, be declared as illegal and the contesting defendants (sons of deceased Bahadar) be restrained from dispossessing the plaintiffs from the lands in dispute. The suit was contested by the sons of Bahadar mainly on the ground that the widow and daughters of deceased Mitha could not inherit the said lands as deceased Mitha and his family were governed by the customs in the matter of inheritance and succession. It was also pleaded that the contesting defendants had even otherwise acquired the right of ownership in the disputed lands by adverse possession. According to the contesting defendants, the suit was also barred by time.
---
## Page 2
' By judgment dated 13-10-1988, the trial Court dismissed the suit. The appellate Court, the Additional District Judge, partly accepted the appeal against the judgment of the trial Court holding that Mutation No,492 sanctioned on 16-5-1937 was illegal and as a result it was declared that Mst. Fatima and Mst. Sabhal (daughters of Mitha) were each entitled to 16/24th share and Mst. Janat widow of Mitha was entitled to 3/24th share, whereas Wahid Bakhsh, Musa and Shahro sons of Bahadar, were entitled to 5/24th as residuaries. Sons of Bahadar approached the High Court by filing a revision petition challenging the judgment dated 6-12-1988 but the High Court dismissed the revision petition. ' Appellants filed a Civil Petition for Leave before this Court and, by order dated 4-5-1994, leave was granted as follows:- "Shahro and others, petitioners herein, call in question the judgment dated 6-12-1992 passed by a learned Single Judge of the Lahore High Court, whereby Civil Revision No,44-D of 1988, filed by the petitioners againstthe judgment of the Additional District Judge, D.G. Khan, dated 9-1-1988, was dismissed. ' The facts of the case, briefly stated, are that Mst. Fatima and others, respondents herein, filed a suit for declaration against Shahro and others defendants/petitioners to the effect that they are owners of the suit land and that the defendants/petitioners have no right or interest therein. It was averred in the plaint that Mitha father of the plaintiffs and Mst. Sabhal defendant No,4 was the brother of Bahadar predecessor-ininterest of Shahro Musa and Wahid Bakhsh defendants 1 to 3 and, thus, were joint owners; that their predecessor-in-interest died in 1936 and they continued in joint possession of the suit property and were paid their share of produce; that 10/15 days prior to the institution of the suit they felt the necessity of selling some area and on consulting the record came to know that the entire land left by him had been mutated exclusively in the name of Bahadar, predecessor-in-interest of defendants 1 to 3; that the inheritance Mutation No, 492 dated 16-5-1937 is wrong and ineffective on the rights of the plaintiffs and that they are entitled to the possession prayed for. The defendants/petitioners contested the suit and in their written statement raised the plea of limitation, adverse possession and denied the title of the plaintiffs/respondents. Necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned trial Court, vide its judgment and decree dated 13-10-1986, dismissed the suit of the plaintiffs/respondents. However, the learned Appellate Court, vide judgment and decree dated 9-1- 1988, set aside the judgment of the trial Court and declaring Mutation No,492 dated 16-5-1937 as illegal, decreed the suit of Mst. Fatima and Mst. Sabhal daughters of Mitha/respondents herein entitled to 16/24th share, widow of Mitha 3/24th share and Wahid Bakhsh, Musa and Shahro sons of Bahadar entitled to the residual of 5/24th share and accordingly decreed the suit of the plaintiffs/respondents. Shahro and others, petitioners herein, preferred Revision Petition No,44-D of 1988 against the judgment of the Appellate Court which was dismissed through the impugned judgment and hence the instant petition for leave to appeal. We have heard Mr. Talib H.Rizvi, Advocate, for the petitioner; Mr.M. Anwar Sipra, Advocate/caveator for the respondents; and have perused the record of the case. ' The suit land admittedly belonged to Mitha, predecessor-in-interest of the plaintiffs, who died somewhere in 1935-36. It is equally established that his inheritance mutation was attested vide No,492 attested on 16-5-1937 in the name of Bahadar his cousin to the exclusion of plaintiffs and defendant No,4 whose relationship with him is also not denied. The main question, however, for determination is that of limitation and adverse possession for more than 12 years. ' Leave is granted to determine the legal questions involved." 2. We have heard the arguments of Mr. Talib H.Rizvi, learned Advocate Supreme Court for the petitioners and Mr.Gul Zarin Kiani, learned Advocate Supreme Court for respondents Nos.1 to 10. The
---
## Page 3
other respondents are ex-parte. With the assistance of the learned counsel, we have gone through the record. 3. On the basis of the pleading of the parties, the trial Court framed the following issues:-- "(1 ) Whether the plaintiffs are owners in possession of land? OPD (1-A) Whether parties are governed by custom in matter of inheritance and female heirs were deprived from inheritance? OPP. (1-B) Whether the suit of the plaintiff is time-barred? OPD. (1-C) Whether defendants Nos.1 to 3 have acquired ownership through adverse possession? OPD. (1-D) Whether suit has been wrongly valued for purpose of court-fee and jurisdiction. If so, what is its effect? OPD. (1-E) Whether the suit is not maintainable in its present form? OPP. (1-F) Relief." ' The trial Court, by judgment dated 13-10-1986, dismissed the suit holding that the parties belonged to "Sikhani Tribe" which was governed by custom in relation to inheritance and womenfolk were not given shares in inheritance according to the custom. The question of possession was also decided against the plaintiffs. On the question of limitation and adverse possession, however, issues were decided against the appellants/contesting defendants. It was held by the trial Court that onus of proving issue regarding limitation was on the appellants/contesting defendants but they did not prove such issues. Finding of the trial Court was that the suit was in time. ' On the question of adverse possession also, the trial Court decided against the appellants by holding that the onus of proving the issue was on them but they did not adduce any evidence either oral or documentary to show that they had acquired ownership through adverse possession. ' The trial Court accordingly decided Issues Nos.1 and 1-A in favour of the appellants but decided Issues No,1-B, 1-C and 1-D in favour of the plaintiffs. ' As noted, the suit was, therefore, dismissed and the plaintiffs filed an appeal which was allowed by judgment dated 9-1-1988 passed by the Additional District Judge, as the Appellate Court. Admittedly no cross-objections were filed by the appellants in the, said appeal under Order XL1, Rule 22, C.P.C., which provision reads as follows:-- "Upon hearing, respondent may object to decree as if he had preferred separate appeal.--(1) Any respondent though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross- objection to the decree which, he could have taken by way of appeal, provided he has filed such objections in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow." ' Sub-rule (2) of Rule 22 of Order XLI, C.P.C. Provides that such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. ' It has been observed that the issues relating to limitation and adverse possession were decided by the trial Court against the appellants and, in the appeal filed by the plaintiffs, the appellants could have supported the decree passed in their favour on other issues by filing cross-objections under Order XLI, Rule 22, C.P.C. Challenging the findings against them by the trial Court on the issues relating to limitation and adverse possession. However, this was not done and it is conceded by Mr. Talib H.Rizvi, learned counsel for the appellants, that no cross-objections were filed. ' The Appellate Court allowed the appeal of the plaintiffs on the issues Nos.1 and 1-A after considering and discussing the entire evidence led by the parties on the question whether the parties (belonging to the Sikhani Tribe) were governed by custom which deprived the females from inheritance, and came to the conclusion that the parties were not governed by such custom and in
---
## Page 4
relation to inheritance they were governed by Shariah. Though no cross-objections were filed by the appellants as regards the other issues, the Appellate Court, in any case decided that the suit of the plaintiffs was not time-barred and that the appellants had not acquired ownership through adverse possession. ' As noted, appellants filed a civil revision petition before the Lahore High Court and a perusal of the memo. Of revision petition shows that even in such memo. The appellants did not challenge the findings of the trial Court (as confirmed by the Appellate Court) on the questions of limitation and adverse possession. In ground ' C' in their memo. Of revision petition, appellants averred that the trial Court decided Issues Nos.1 and I-A in their favour after discussing the entire oral and documentary evidence. As regards other issues, including the issues of limitation and adverse possession, it was stated as follows by the appellants in their memo. Of revision petition:-- "The rest of the issues were not so much material for decision of the case and on the strength of Issues Nos.1 and I-A, the trial Court rightly dismissed the suit." 4. Coming now to the impugned judgment of the Lahore High Court dismissing the revision petition filed by the appellants, the findings of the Appellate Court on the issues relating to the applicability of custom or Shariah to the parties in relation to inheritance were confirmed as follows:-- "Mirza Manzoor Ahmad learned counsel for the respondents has argued that the learned first Appellate Court has accorded the findings of fact on the question of applicability of custom in the case in hand after scanning the whole evidence and taking into consideration the overall facts and circumstances of the'case. According to the learned counsel neither material pieces of evidence has been omitted from consideration nor there is any misreading of evidence. Documentary evidence which consists of Rawaj-e-Aam as well as mutation of inheritance which relate to the tribe to which Mitha deceased belonged clearly prove that Shariat Law was applicable in this family for the purpose of inheritance of immovable property and admittedly the plaintiffs being daughters and a widow of the deceased had a right to succeed the deceased in accordance with Shariat Law and the petitioners illegally got them excluded from inheritance, hence, the learned first Appellate Court has rightly set aside the judgment and decree passed by the learned trial Court. Learned counsel has further argued that as the petitioners and the respondents are co-heirs in the land in question and the Khata is still joint neither the question of limitation nor adverse possession will arise in this case in view of the law laid down in cases of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Learned counsel has further argued that even otherwise by virtue of the provisions of Ordinance 13 of 1983, Shariat Law of Inheritance will apply retrospectively as Mitha was admittedly a Muslim and, therefore, it shall be deemed that he was full owner of the property in question and at the time of his death his estate had to be divided in accordance with Shariat Law according to which the plaintiffs are heirs of Mitha in the land in question and, hence, automatically they have succeeded the deceased as his Shari-heirs and they shall be deemed to be in joint possession of the land in question alongwith respondents Nos. I to 3. Learned counsel has relied upon cases of Abdul Gliafoor and others v. Muhammad Shafi and others (PLD 1985 SC 407) and Mst. Farida and 2 others v. Rehmat Ullah and another (PLD 1991 SC 213) and case of Mst. Fazal Nishan and others v. Ghulam Qadir (1992 SCMR 1773). 8, I have considered the arguments addressed by the learned counsel for the parties and have perused the record. Admittedly the parties are Muslims and Mitha deceased was also a Muslim, Baloch by caste, who follows Shariat as per Rawaj-e-Aam which is reflected in copy Exh.P-15. Although there are certain exceptions according to which Sikhani Baloch followed custom. In the family in question it has been proved by the documentary evidence that rule of inheritance was Shariat; merely because some witnesses have made a statement that custom was applicable in the tribe for the purpose of inheritance, will not make much difference when the documentary evidence proves otherwise. Learned counsel for the petitioners has not been able to point out any
---
## Page 5
material pieces of evidence which have not been taken into consideration by the learned first Appellate Court or any evidence which has been misread. This is a civil revision and a finding of fact recorded by the learned Appellate Court cannot be interfered with in exercise of revisional jurisdiction of this Court unless it is a case of misreading or non-reading of evidence. Even if it is a case of wrong appreciation of evidence. No other legal infirmity has also been pointed out by the learned counsel for the petitioner in the judgment rendered by the learned first appellate Court, hence, I hold that the finding of the learned first Appellate Court to the effect that Mitha deceased followed Shariat in the matters of inheritance is unexceptionable and, hence, no fault can be found with the findings of the learned first Appellate Court which is to the effect that inheritance of Mitha deceased has to be decided in accordance with Shariat according to which law the plaintiffs will inherit as his daughters and his widow." ' Although the questions of limitation and adverse possession had not been agitated by the appellants in their revision petition, the High Court, nevertheless, decided these issues against them as follows by confirming the findings of the trial Court as well as the Appellate Court:-- "Arguments of the learned counsel for the petitioners that the suit is time-barred and that the respondents have become owners by adverse possession is also misconceived. Once it is held that the plaintiffs inherited the deceased in accordance with Shariat Law, they automatically become co-heirs in the property in question and, therefore, no period of limitation will run against them. The respondents Nos.1 to 3 cannot claim adverse possession, inasmuch as in order to claim adverse possession, the possession of the claimant has to be illegal and hostile openly to the lawful owners. In the case in hand respondents Nos.1 to 3 have never claimed that they were in adverse possession and held the land hostile to the plaintiffs. They have been claiming the possession of the land in their own right, therefore, the plea of adverse possession cannot be taken by the respondent as held in case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), " 5. From the leave granting order dated 4-5-1994 reproduced in the earlier part of this judgment, it follows that leave was only granted on the questions of limitation and adverse possession and, therefore, learned counsel for the appellants was asked to confine his submissions while arguing the present appeal to such legal questions, yet Mr. Talib H. Rizvi made an attempt to argue on merits also in regard to the issue whether parties were governed by custom which deprived females from inheritance and not according to Shariah. He referred to the evidence adduced by the parties. We are of the view that firstly, the issue regarding merits was not open as leave had been confined to the questions of adverse possession and limitation and, in any case, we find that the High Court has dealt with these questions in detail; the evidence adduced by the parties on these questions has been considered by the High Court. It was observed by the High Court that counsel appearing for the appellants before the High Court had not been able to point out any material based on evidence which had not been taken into consideration by the Appellate Court or that any evidence had been misread. The High Court rightly observed that no misreading or non- reading of evidence was pointed out nor any legal infirmity referred to call for exercise of revisional jurisdiction by the High Court. ' In the circumstances, we are not inclined to interfere with the findings of the Appellate Court, as confirmed by the High Court, on Issues No:.1 anu 1-A. 6. On the issues relating to adverse possession and limitation, as observed in the earlier part of this Judgment, Mr.Gul Zarin Kiani, learned counsel for the' contesting respondents had pointed that no cross-objections had been filed in the appeal in respect of the findings of the trial Court in favour of the respondents on these issues. It had also been noticed that, even in the memo. Of revision before the High Court, appellants did not take up any ground challenging such findings.
---
## Page 6
' In support of the proposition that, in the circumstances where no cross-objections had been filed under Order XLI, Rule 22, C.P.C., appellants could not challenge such findings in the appeal or later in revision before the High Court, Mr. Gul Zarin Kiani relied upon the following judgments:-- (i) PLD 1973 SC 295 (Khairati v. Aleem-ud-Din). (ii) PLD 1983 SC 53 (Kanwal Nain v. Fateh Khan). (iii) PLD 1992 Karachi 78 (Pakistan International Airlines Corporation v. Messrs Khalid Brothers). (iv) AIR 1914 Calcutta 839 (Nagendra Nath Ghose v. Ram Bharosa Haluai). (v) AIR 1983 Orissa 252 (Jatani Dei v. Udayanath Behera). (vi) AIR 1985 Patna 287 (Naresh Ahir v. Mst. Barhiya). ' In PLD 1973 SC 295 (Khairati v. Aleem-ud-Din) it was observed that a respondent can support a decree even on points decided against him, but a respondent cannot attack a decree or ask for its variation without a cross-objection. In that case, the trial Court had found as a fact that the suit for specific performance was not barred by time. It was further observed that, therefore, by contending that the suit was so barred, the respondent in that case was not seeking to support the decree as it was but rather to attack the findings in the decree and this he could not do without filing any cross-objection. ' In PLD 1983 SC 53 '(Kanwal Nain v. Fatch Khan) an appeal was filed seeking to challenge the decree passed by the trial Court. No cross-objections were filed to challenge the findings on one of the issues involved in the case. It was held that finding on such issue attained finality and was not liable to be reopened at the appellate stage in the Supreme Court. ' In PLD 1992 Karachi 78 (Pakistan International Airlines Corporation v. Messrs Khalid Brothers) it was held that in the event respondent to an appeal desires to attack the decree, wholly or in part, he could only do so by taking necessary cross-objections to the decree, such as he could have raised if he preferred an appeal. ' In AIR 1914 Calcutta 839 (Nagendra Nath Ghose v. Ram Bharosa Haluai) it was held that where the matter is not agitated by any of the parties, it is not the duty of that Court in fact to reopen a finding which both parties accept and do not move against. ' In AIR 1983 Orissa 252 (Jatani Dei v. Udayanath Behera) it was held that Order XLI, Rule 22, C.P.0 permits the respondent who may not have appealed from any part of the decree to support the decree and state that the finding against him of the Court below ought to have been in his favour but when the respondent supports the decree, he need not file any cross-objection because when the decree is in his favour, cross-objection is not maintainable. It was observed that cross- objection in such situation is inconceivable as the cross-objection is filed against a part of the decree. It had been submitted by Mr. Gul Zarin Kiani that, according to this judgment, at least the respondents had to agitate before the Appellate Court that the issue decided against him should have been decided in his favour. ' AIR 1985 Patna 287 (Naresh Ahir v. Mst. Barhiya) is also to the same effect as AIR 1983 Orissa 252 and here also the submission of Mr. Gul Zarin Kiani was that, if no cross-objections had been filed, at least the respondent should have agitated that the issue decided by the trial Court should have been decided in his favour. According to learned counsel, in the present case, admittedly no cross- objections had been filed and it appears that the appellants did not even agitate before the Appellate Court that the issues regarding adverse possession and limitation had been decided wrongly by the Trial Court and, in the circumstances, such findings attained finality. In our view the objection of Mr. Gul Zarin Kiani on the basis of Order XLI, Rule 22, C.P.C., is not well- taken. Wordings of Rule 22 are themselves clear. It provides that though a respondent may not have filed any appeal from any part of the decree, he can, nonetheless, support the decree even on any one of the grounds decided against him by the Court below. In case, however, he wants to
---
## Page 7
attack any part of the decree against which he could have filed an appeal, the respondent could then only do so through tiling of cross-objections within the prescribed time. ' There is also Rule 33 of Order XLI, C.P.C. Which is as under:--- "33. Power of Court of appeal.--The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: ' Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order." Even in the absence of cross-objections, where it was necessary to file such objections under Order XLI, Rule 22, C.P.C., the Appellate Court, therefore, is always vested with powers to pass any decree and make any order which ought to have been passed etc. In this context, we may refer with approval the following dicta in judgment of the Sindh High Court in P.I.A.C. v. Khalid Brothers (PLD 1992 Karachi 78) by Wajihuddin, .1. (as he then was):-- "An examination of Order 41, Rule 22 of the Code would reveal that a respondent, though he may not have appealed from any part of the decree, yet, without any conditions…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.