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Petitioner: MUHAMMAD RAFIQ And 9 Others VS Respondent: Mst. NOOR BEGUM And OTHER
Court Name: Lahore High Court Judge(s): Falak Sher, Khalil-Ur-Rehman Khan Title: MUHAMMAD RAFIQ And 9 Others vs Mst. NOOR BEGUM And OTHER Case No.: Writ Petition No.521-R of 1977 Date of Judgment:1989-08-20 Reported As: 1989 CLC 2292 Result: Petitions accepted
JUDGMENT
JUDGMENT KHALIL-UR-REHMAN KHAN, J.--This judgment will dispose of this petition (W.P. 521-R/77) as well as seven other petitions (W.Ps. 1300-R/77, 324/R-78, 325-R/78, 563-R/78, 693/R-78, 760-R/78 and 803/R-78) as in all these petitions, questions of fact and law involved are one and the same. 2. The facts necessary for appreciating the controversy raised in these petitions are that the land measuring 310 kanals and 15 marlas situated in village Hardo Chicharwali, a suburb of Gujranwala city belonged to one Gandha Singh and on his death in 1943 the land in dispute was mutated vide mutation No.483 in the name of Amar.Singh, his only son who also died issueless on 2-11-1945 and the land in dispute was mutated in the name of Harnam Kaur, his mother under Custom as widow of Gandha Singh till death or re-marriage vide mutation No.512 dated 22-3-1946. This mutation, was challenged by Balwant Singh and others, the reversioners of Gandha Singh by filing a civil suit contending that Mst. Harnam Kaur had lost the right to maintenance as widow of Gandha Singh as she had remarried by way of Chaddar Andazi. The suit was compromised on 28-11-1946 whereby the reversioners, respondents Nos.5 to 8 agreed to (i) deposit Rs.2600 for the marriage of Gurbachan Kaur daughter and (ii) to deliver three Manis of paddy within one week of Lohri and three Manis of wheat without barley at the end of month of Haar in every year to Harnam Kaur till her death or remarriage. It was further agreed that in case of non-compliance of the terms of compromise Harnam Kaur would be entitled to take the possession of the land. 3. The reversioners deposited Rs.2600 with the Civil Court (Imperial Bank of India) for payment to Gurbachan Kaur and Rs.151 for payment to Harnam Kaur as cost of the yearly crop entitlement on 18th January, 1947. Mst. Harnam Kaur withdrew the sum of Rs.151 without any objection on 12th
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February, 1947. The reversioners thus complied with the compromise decree in full and on Partition of the Sub Continent, migrated to India. 4. Mst. Harnam Kaur widow and Mst. Gurbachan Kaur, the daughter of Gandha Singh remained in Pakistan and as they embraced Islam, were named Noor Begum and Khurshid Begum respectively. Mst. Noor Begum is respondent No.1 and is the main contesting respondent. It appears that she on 11th March, 1948 moved the Civil Court claiming delivery of possession of the land in dispute on account of non-compliance of the terms of compromise and the Civil Court granted warrant of possession dated 12th March, 1948 which was returned with the report dated 3rd April, 1948 that possession has been delivered. 5. The land in dispute was treated as evacuee property by the Rehabilitation Authorities and was allotted to various refugees in the years 1953 to 1955. Some of these allottees sold and transferred that land received in allotment to others. The petitioners are either the allottees or vendees from allottees or their successors-in-interest. 6. Mst. Noor Begum respondent No.l in 1953 filed a petition under Section 18 of the Pakistan Administration of Evacuee Property Ordinance, 1949 seeking declaration that she is not an evacuee and that the land in dispute is also not an evacuee property. This petition was decided by Mr. Zia Ullah Khan, the then Deputy Custodian vide order dated 19th January, 1954 holding that (i) Mst. Noor Begum is not an evacuee; (ii) the land in dispute is evacuee property and that (iii) there is a charge on the said evacuee property of three Mams of paddy and three Manis of wheat payable every year to Mst. Noor Begum. This order was confirmed by the Deputy Custodian (General) vide order dated 8th February, 1955 with the following observation:- "All that she is entitled is that she be paid 3 Manis of Wheat paddy a week after Lohri and 3 Manis of wheat in Harr every year. The Rehabilitation Authorities when making an allotment of this land shall ensure that this part of the compromise is carried out and she is duly paid the paddy and wheat. In case this payment is not made it will be open to the petitioner to come to the Custodian and seek appropriate remedy, when the whole position shall be reviewed." These orders were not interfered with by the then Custodian (Mr. Justice Khurshid Zaman) as the revision filed by Noor Begum respondent No.l was dismissed by him vide order dated 12-9-1955. The review petition was also dismissed by the Custodian (Mr. Justice A.M. Jan) vide order dated 2nd December, 1956. He, however, directed that Rs.2600 deposited by the revisioners with the Civil Court be paid to Khurshid Begum (Gurbachan Kaur) as she has attained majority. The amount was accordingly withdrawn by Khurshid Begum on 28th March, 1959. 7. Mst. Noor Begum after remaining silent for about nine years again moved a miscellaneous application in 1965 before the then Custodian for payment of maintenance allowance and restoration of possession. This application was dismissed on 18th February 1967 with the observation that the Rehabilitation Authorities may be approached for seeking implementation of the order dated 19-1-1954 as regards payment of maintenance allowance. Mst. Noor Begum at this stage also filed nine appeals against the orders of allotment passed in favour of various refugees. These appeals were disposed of by the then Additional Rehabilitation Commissioner vide order dated 13th July, 1968 with the observation that possession of the land should not be transferred to the fresh allottees unless and until the condition is not fulfilled and that her appeal to the extent that order of the Civil Court should be given effect to, is accepted. The allottees preferred four revision petitions against the aforesaid order dated 13-7--1968 and the Settlement Commissioner dismissed the same vide order dated 8--10-1969 with the observation: "I find nothing wrong with the impugned order and hold the view that the property in question will continue to be treated as evacuee and the order of the Civil Court will continue to be implemented unless it is set aside on civil side."
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Another revision petition filed by Mst. Noor Begum seeking restoration of possession was also dismissed by the Settlement Commissioner on the same date i.e. 8-10-1969 under a separate order. 8. Mst. Noor Begum respondent on 13th February 1971 moved yet another application under section 22 of the Administration of Evacuee Property Act 1957 for declaration that she is the owner of the land and that the land in dispute is not evacuee property. This petition was accepted with the following observations by the Deputy Custodian vide order dated 9-1-1973:- "The upshot of the discussion is that the petitioner who is a widow of 70 years of age should not be deprived of her limited interest of possession or recovery of maintenance as stipulated in the compromise decree as the Rehabilitation Authorities have failed to pay her maintenance as fixed in the compromise decree and approved by the Custodian Authority it is incumbent to leave whole possession and to order and declare that the petitioner is entitled to have possession of the land in question till her death after which the property would automatically become an evacuee property. Since the petitioner's main grievance was against the Rehabilitation and allottees were not made parties to the suit their possession cannot be upset without giving them notice as required by law ..................................................................................................Rehabilitation Authorities should issue a notice to the allottees and make them realize that if maintenance already agreed in the compromise decree is not paid within 30 days of receipt of notice by them the possession of the land will be handed over to the petitioner and their allotments will have to be cancelled as no permanent allotment can be made of land in question till life time of the petitioner after which automatically the status of the property would become that of an evacuee property." Learned Custodian to whom the file was forwarded for confirmation of the order of the Deputy Custodian confirmed the same vide order dated 6-8-1973 with the observations recorded therein. The observations which are pertinent for the purposes of the present controversy are being reproduced for ready reference: "There is no doubt that the property in question was in the possession or ownership of the collaterals of Amer Singh who have since become evacuees, but on account of the decree passed by the Civil Court there is a charge over the same created in favour of the petitioner. If the terms and conditions as agreed upon between the parties i.e. The petitioner and the collaterals of Amer Singh, are not fulfilled then the petitioner is certainly within her right to take over the possession of the land and remain in possession thereof till her death or remarriage. I am of the view that in the presence of the civil decree passed on the basis of the compromise between the parties, there was no need for the petitioner to approach the Custodian or any other authority to seek the necessary declaration in her favour. All the authorities concerned were bound to honour the said decree unless it was proved that the same had been set aside by some competent authority. As mentioned above, the learned Civil Judge, Gujranwala, Ch. Muhammad Tufail had ordered for the restoration of the possession of the land in question to the petitioner, the warrant of delivery of possession in the execution proceedings started by her. According to the petitioner she was put into the possession on 3-4-1948 and necessary mutation was also entered on 5-11-1949. If it is so then the Rehabilitation authorities were not competent to allot the land in favour of any displaced person, in the absence of the said order of the Civil Court having been set aside by some competent authority. 8-A.The allottees of the land in question were not made party in the present proceedings before the learned Deputy Custodian. However, in order to get over this difficulty, the learned Deputy Custodian has rightly held that since they are in possession of the land, therefore, they should be issued notice by the Rehabilitation Authority i.e. Settlement Commissioner (Land) Lahore Division, Lahore to pay the maintenance out of the produce of the land in question right from the period when they were put into possession of land, failing which their allotment of land would be liable to
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be cancelled and the petitioner would beentitled to be put into possession of the land in accordance with the decree passed by the Civil Court on the basis of the compromise as mentioned above. The notice to be issued to the allottees may be for a period of three months instead of one month as observed by the learned Deputy Custodian." The findings recorded by the learned Custodian are:- (1) the land in question was in possession or ownership of the collaterals of Amar Singh who have since become Evacuee; (2) there is a charge over the land in dispute on account of decree of the Civil Court; (3) If the terms and conditions of decree are not fulfilled Noor Begum is entitled to take over possession of the land and remain in possession thereof till death or remarriage; (4) In the presence of compromise decree, there was no need to approach the Custodian or any other authority to seek necessary declaration; (5) If Noor Begum was put in possession by Civil Court and mutation was entered, Rehabilitation Authorities were not competent to allot land in favour of displaced persons unless the said order of possession was set aside by some competent authority; (6) As allottees were not parties to these proceedings, the difficulty to be got over by issuing notice to pay the maintenance since date of allotment. It is pertinent to point out here that from the findings that the collaterals of Amer Singh Evacuees were owners and in possession and the maintenance agreed by them was charge on the land in question, it clearly follows that the land in question, was Evacuee Property and that the view of the Deputy Custodian that land on remarriage or death of Mst. Noor Begum would become Evacuee Property was not upheld by the learned Custodian. 9. The file of the case was then sent for necessary action to the Settlement Commissioner (Lands) Lahore Division, Lahore, who in turn forwarded the same tothe Deputy Commissioner/Additional Settlement Commissioner (Lands) Gujranwala for compliance. This officer reported vide report dated 30-12-1975 that as per report of the Tehsildar Assistant Settlement Commissioner (Lands) the allottees of the land have failed to turn up in spite of service of notices and that they have also not paid any maintenance to Noor Begum in accordance with the decree of the Civil Court and the order of the Custodian. The Settlement Commissioner, Lahore Division, Lahore, took cognizance of the matter and directed issuance of notices to allottees and as is apparent from the order passed by him, only five allottees namely Abdul Ghani, Rashid, Akbar, Javed lqbal and Akbar Ali entered appearance through their counsel Ch. Faqir Ullah, Advocate who also represented some of the vendees in possession. It may be noted here that the assertion of the petitioners that they were neither impleaded as party to the proceedings before the Settlement Commissioner nor any notice of the proceedings was issued to them, was not controverted before us by the respondents. It further appears that the allottees or the vendees from the allottees who had entered appearance in the proceedings before the Settlement Commissioner sought adjournment on 17-3-1977 as they had submitted an application to the Chief Settlement Commissioner for transfer of the case to some other Settlement Commissioner. The matter was adjourned to 26-4-1977 for further orders. The transfer application was dismissed by the Chief Settlement Commissioner on 25-4-1977. The respondents in the proceedings before the Settlement Commissioner did not appear on 26-4-1977 and the Settlement Commissioner observing that the respondents have already been heard at length, proceeded to dispose of the matter and vide order dated 27-4-1977 resumed the land from the allottees and ordered restoration of the same to Noor Begum respondent in accordance with the terms and conditions of the compromise decree dated 28-11-1946 by recording the conclusion that the allotments of the land in dispute were defective and allottees concerned had failed to comply with the terms and conditions of the compromise decree. So as to complete the factual history of the case, it may also be mentioned that the petitioners filed the constitution petition (WP.
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521-R/77) on 28-3-1977 during the pendency of the proceedings before the Settlement Commissioner, Lahore Division, Lahore. It is pertinent to note at this stage that by invoking provision of Article 245 of the Constitution and the Defence of Pakistan Act, Armed Forces were called upon to act in aid of civil power on 21st April, 1977 and curfew was imposed in Lahore and on 23rd and 24th April, 1977 curfew restrictions were relaxed for a few hours. Again on 25th and 26th April, 1977 curfew restrictions were relaxed from 4.00 a.m. To 12.00 noon. The learned counsel representing the allottees and vendees who had joined the proceedings sent on 26th April, 1977 telegrams to the Settlement Commissioner and the High Court for adjournment on the ground that due to curfew restrictions, he is not able to appear and prosecute the matters respectively pending before them. The petitioners who had filed the petition (WP. 521-R/77) were 14 in number, some of them subsequently have withdrawn from the petition and as such their names have been deleted. This writ petition was amended so as to impugn the order dated 27-4-1977 passed by the Settlement Commissioner, Lahore Division, Lahore during the pendency of writ petition and now the orders finally impugned are order dated 9-1-1973 of the Deputy Custodian, order dated 6-8-1973 of the learned Custodian and the order dated 27-4-1977 of the Settlement Commissioner, Lahore Division Lahore. The other petitions mentioned above were filed subsequently by other petitioners. 10. The learned Judges while admitting the petition (WP.521-R/77) on 24-5-- 1977 directed the petitioners "to deposit Rs.17353 the amount representing the maintenance on account of right of limited estate-holder for disbursement to the limited estate-holder on her furnishing surety." This amount as is noted in the order dated 31-5-1977 was deposited with the Registrar of this Court and accordingly the possession of the allottees or transferees from them was orderednot to be disturbed subject to notice. This matter of stay did not come up before the Court for disposal and is as such still pending. It may further be noted that during the pendency of this petition Noor Begum respondent has sold to different parties, a sizeable part out of the land m dispute and has thus collected considerable amount of money. This information was laid through submission of applications as well as by initiating contempt proceedings which matter is being dealt with separately. 11. Messrs MAnwar Bhindar, Iftikhar Ali Syed and Mr. Abid Hassan Minto, Advocates submitted arguments on behalf of the petitioners. Mr. A.R. Shaukat, Advocate for respondents Nos.9 to 18 supported the case of the petitioners. The main contentions raised were (i) the petitioners who are allottees or vendees from the allottees were condemned unheard as they were neither impleaded in proceedings throughout nor were granted opportunity of hearing either by the Deputy Custodian or the Custodian or the Settlement Commissioner; (ii) that the second and third applications under Section 22 of Administration of Evacuee Property Act, 1957 were incompetent, in any case these could not be entertained in the year 1973 and neither the Custodian nor the Deputy Custodian could review the orders passed previously; (iii) that the property having gone into the Compensation Pool and having been permanently settled on the allottees, the Custodian authorities stood divested of the jurisdiction and as such the orders passed are without lawful authority; (iv) that the Deputy Custodian as well as learned Custodian had no authority to give finding as to the legality of the allotment and that they acted illegally in directing the Settlement Commissioner/Rehabilitation Commissioner to issue notices to the allottees; (v) that the allottees are not liable to pay any amount as the property vested m the Compensation Pool free of all charges and encumbrances and hence any such charge even if earlier existed, stood extinguished on issuance of Notification under Section 4 of the Displaced Persons (Land) Settlement Act 1958; (vi) that Noor Begum respondent at best could claim the amount of the so- called charge from Chief Settlement Commissioner out of the Compensation Pool under the Satisfaction of Charges Land Settlement Rules 1962.
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12. The petitions were contested by Mst. Noor Begum respondent alone as no one entered appearance on behalf of Settlement and Rehabilitation and Custodian Authorities as well as the Reversioners. Mr. Ahmad Saeed Kirmani, Advocate for Mst. Noor Begum submitted that position of Noor Begum respondent is that of a Muslim Local lady and as such the legal status of the property as well as that of Noor Begum respondent is to be seen and determined with reference to Ist of March, 1947. He added that the rights vesting in her cannot be declared "Evacuee Property". She was a Muslim local and was delivered possession on 3rd of April, 1948 in pursuance to the warrant of possession issued by the Civil Court and the possession so delivered should be acknowledged, recognized and maintained. According to the learned counsel the General Order dated 23-12-1947 passed by the Custodian taking possession of the Evacuee property was ineffective to divest Noor Begum of her possessory rights; that non-evacuee interest in any case was neither resumed nor could legally be resumed and as such the allotments made were void ab initio and the Custodian authorities were right in holding and declaring the allotment of the land illegal and void. It was added that as the allottees were neither necessary nor proper party to the proceedings, as such they were rightly not granted an opportunity of hearing. He added that the Rehabilitation Department was necessary party which was admittedly before the authorities and was heard. Learned counsel added that the impugned orders were passed competently and that the Authorities had in fact redressed the grievance of Noor Begum, the poor old lady and as substantial justice has been done interference in extraordinary jurisdiction would not be warranted. He pointed out that the learned Judges of the Division Bench in writ petition No.760-R/78 have observed that the authorities have taken 30 years to extend justice to the respondent and hence, he argued these petitions merit to be dismissed with cost. 13. We have given serious consideration to the respective submissions of the parties and have also gone through the impugned orders and the other record of the proceedings placed on the files as well as the one made available by the parties during the hearing. 14. We agree with Mr. Ahmad Saeed Kirmani, learned counsel for Mst. Noor Begum respondent that in order to determine the legality and validity of the impugned orders, the legal status of Mst. Noor Begum, nature and legal effect of the compromise decree dated 28-11-1946 of the Civil Court and the effect of the Evacuee Laws enforced after the establishment of Pakistan, and change in the character of the land in dispute and in status of Mst. Noor Begum due to her conversion to Islam will have to be gone into. We, however, do not agree with him that effect of these changes is to be determined with reference to Ist of March, 1947. This date is mentioned in Section 20, Act XII of 1957. This section provides that creation or transfer of any right or interest in or encumbrance on any property made on or after Ist day of March 1947 by or on behalf of an Evacuee shall not be effective unless confirmed by the Custodian. Similar provisions existed in the earlier Evacuee Laws also. This date as is apparent is not relevant in the present controversy. The legal status of Mst. Noor Begum and the rights claimed by her will have to be determined with reference to the date of the initiation of the proceedings before Civil Court, the Custodian Authorities and the Settlement and Rehabilitation Commissioner. 15.In this context the relevant facts to be noted are that Mst. Noor Begum respondent before embracing Islam was widow of Gandha Singh and on the death of Amer Singh the only son of Gandha Singh had succeeded under the then prevailing custom as widow of Gandha Singh and not as mother of Amer Singh. For understanding the true nature of, the capacity under which she held the land reference is invited to observations made in the case of Additional Settlement Commissioner (Land) Sargodha v. Muhammad Shafi and others PLD 1971 SC 791 as follows: "It is now well settled that a female's estate under custom is analogous in nature to a widow's estate under the Hindu Law (vide Rattigan's Digest of Customary Law, 13th Edition, page 787). If so then under Hindu Law the true concept of a widow's estate is that she notionally represents her
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husband, as if, her deceased husband is, for the purposes of the management and user of his properties, kept alive in her, and it is for this reason that it is said that during the time the widow is alive or does not re-marry, the whole estate of her husband vests in her absolutely as if the husband is for all intents and purposes alive in her. "Hindu Law", according to J.D. Mayne, "Knows nothing of estate for life, or in tail, or in fee. It measures estate not by duration but by use .... The restrictions upon the use of an estate inherited by a woman are similar in kind to those which limit the powers of a male-holder, but different in degree. The distinctive feature of the estate is that, at her death, it reverts to the heirs of the last male owner. She never becomes a fresh stock of descent." The observations made further at page 806 of the report being relevant are also being reproduced: "A Hindu widow's estate is, therefore, neither an estate for life nor the estate in tail nor an estate in fee simple. This difference arises from the anomalous character of her estate in her husband's properties. It is because of…
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