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Official Citation: 2025 LHC 5297
Court / Jurisdiction: Lahore High Court
Year of Decision: 2025
Decision Date: 2025-06-18
Parties: Jamshed Khan & 05 others vs Akbar Khan & 15 others
Ruling Summary: This decision was rendered by the Lahore High Court on 2025-06-18, officially reported as 2025 LHC 5297. In this matter between Jamshed Khan & 05 others and Akbar Khan & 15 others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025LHC5297
Court Name: Lahore High Court Judge(s): Khalid Ishaq Title: Jamshed Khan & 05 others vs Akbar Khan & 15 others Case No.: Regular Second Appeal No. 17025 of 2020 Date of Judgment:2025-06-18 Reported As: 2025 LHC 5297 Result: Appeal Allowed
JUDGMENT
JUDGMENT KHALID ISHAQ, J:- This Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (CPC), is directed against the judgment & decree dated 22.02.2020 ("Impugned Judgment") passed by the learned Addl. District Judge, Tehsil Kamoke, District Gujranwala ("Appellate Court"), whereby while partially reversing[1] the judgment dated 30.01.2017 ("Trial Court Judgment") passed by the learned Civil Judge, Gujranwala ("Trial Court"), the suit filed by the Respondents/Plaintiffs was decreed. 2. Brief facts of the case are that one Karam Bakhsh died in India before partition, survived by two sons (Abdul Ghafoor and Majeed) and one daughter (Mst. Ghafooran Bibi). Under the then applicable Customary Law, Karam Bakhsh's Property in Mauza Baras, India had devolved upon his elder son Abdul Ghafoor. It is an admitted position that Abdul Ghafoor died in riots during the migration from India to Pakistan in 1947 and being issueless, he was survived by his widow (Mst. Sifta), brother Majeed and sister Mst. Ghafooran Bibi. Claim against Abdul Ghafoor's abandoned property in India, was lodged before the Settlement and Rehabilitation Authorities under Pakistan Rehabilitation Ordinance XIX of 1948 (the "Ordinance, 1948"). Mutation of Inheritance viz the land left in India, bearing mutation No. 01 dated 30.10.1952 ("Impugned Mutation") was sanctioned by the Assistant Rehabilitation Commissioner ("ARC"), on the basis whereof suit property situated in Mauza Thatha Gulab Singh Tehsil Kamoke District Gujranwala[2] was mutated in favour of Majeed (3/4 share) and Mst. Sifta (1/4 share). Evidently, Mst. Ghafooran Bibi was not reflected in the Impugned Mutation as one of the legal heirs of Abdul Ghafoor. It is an admitted fact that at the time of sanctioning of the Impugned Mutation, Mst. Ghafooran Bibi was 50-55 years old[3], who
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remained alive till the year 1988 but she never laid a challenge to the Impugned Mutation during her lifetime. It is pertinent to point out here that Majeed died on 16.02.1985 and the suit property had also been transferred in favour of his offspring through various mutations, during and after his lifetime, which mutations were though impugned as a collateral challenge, as late as in 2009 while filing the Suit but no such challenge was laid after the death of Majeed in 1985. 3. Present litigation commenced on 13.06.2009, when the Respondents of this Civil Revision Petition, claiming themselves as L.Rs of Mst Ghafooran Bibi (who shall hereinafter be referred to as "Respondents/Plaintiffs") filed a suit for declaration before the Trial Court, seeking cancellation of the Impugned Mutation, as well as, subsequent mutations on the basis thereon, along with consequential relief of possession and permanent injunction (the "Suit"). L.Rs of Majeed and Mst. Sifta (who shall hereinafter be referred to as "Appellants/Defendants") contested the Suit on the following threshold objections: i) Jurisdiction of Civil Court was barred under Section 25 of Displaced Persons (Amendment) Act, 1958, read with Section 41 of the Pakistan Administration of Evacuee Property, Act 1957; ii) Mutation No.1 was passed by ARC on 30.10.1952, while exercising jurisdiction under the settlement laws, which was never challenged by Ghafooran Bibi in her lifetime, therefore, Suit is badly time barred by 56 years and 08 months; iii) Plaintiffs have no w to file the present suit and no cause of action exist in their favour. 4. Issues were framed on the basis of divergent pleadings of the parties, pro & contra evidence was led and at culmination of the proceedings, the Suit was dismissed by the Trial Court, vide judgment & decree dated 10.11.2013 for want of jurisdiction. Said judgment & decree was assailed by way of RFA No. 133 of 2013 before this Court, which was allowed vide judgment dated 12.11.2015 on the premise that since complete evidence was recorded in the Suit, therefore, in terms of Order XX Rule 5 of CPC, Trial Court was required to state its findings or decision with reasons thereof upon each separate issue and all the distinct issues had to be answered. It was held that: "Even otherwise, the findings of the learned Trial Court in respect of issue No.4 are required to be re-recorded by the learned Trial Court after considering the provisions of the Evacuee Property and Displaced Persons Law (Repeal) Act, 1975 through which the Displaced Persons (Land Settlement) Act, 1958 and the Pakistan (Administration of Evacuee Property) Act, stood repealed. Thus, the appropriate course is to remand the case to the learned Trial Court for recording fresh findings on all the issues and particularly on issue No.4 after appreciating the provisions of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975."[4] 5. In post remand proceedings, the Suit was once again dismissed by the Trial Court vide Trial Court Judgment, declaring that the Suit filed by the Respondents/Plaintiffs is barred by limitation. Trial Court Judgment was assailed by the Respondents/Plaintiffs through an appeal filed under section 96 of the CPC before the first Appellate Court. The Appellants/Defendants also filed Cross- Objections viz the findings of Trial Court qua question of bar of jurisdiction. The appeal was allowed and Cross-Objections were dismissed vide Impugned Judgment and consequently, the Suit was decreed. Hence this appeal. 6. I have the heard learned counsels for the parties at length, on the basis of their respective submissions, able assistance and available evidence/ record, the questions of law, which require determination in this Regular Second Appeal, may be summed up as under: I) Whether the suit property had devolved upon Majeed and Mst. Sifta under the Customary Law as the West Punjab Muslim Personal Law, Shariat Application Act IX of 1948 ("Shariat Act") was not applicable since Abdul Ghafoor had died in 1947, prior to the promulgation of the Shariat Act, thus, Mst. Ghafooran Bibi was rightly excluded from inheritance as a legal heir of Abdul Ghafoor? II) Whether the jurisdiction of Civil Court was barred under Section 25 of the Displaced Persons (Land Settlement) Act (XLVII of 1958) ("Settlement Act") read with Rehabilitation Settlement
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Scheme, Part II paras 46 & 67, as the Impugned Mutation was sanctioned by ARC while exercising jurisdiction under Settlement Laws, therefore, the remedy of Respondents/Plaintiffs, if any, was available under the Settlement Laws? III) Whether the Suit filed by the Respondents/Plaintiffs was barred by limitation despite the fact that claim in the suit was couched as an inheritance claim, lodged after the death of Mst. Ghafooran Bibi by her legal heirs? The above questions are answered by this Court, in the following terms: I) Whether the suit property had devolved upon Majeed and Mst. Sifta under the Customary Law as the West Punjab Muslim Personal Law, Shariat Application Act IX of 1948 ("Shariat Act") was not applicable since Abdul Ghafoor had died in 1947, prior to the promulgation of the Shariat Act, thus, Mst. Ghafooran Bibi was rightly excluded from inheritance as a legal heir of Abdul Ghafoor? 7. The issue, as to the applicability of the Shariat Act regarding the devolution of inheritance upon the legal heirs of a person, who died before the promulgation of the Shariat Act but the incorporation/sanction of mutation for such purpose was pending till 15th March, 1948[5], has already been settled by a Larger Bench of the Supreme Court of Pakistan through a landmark judgment in "Ghulam Haider and others"[6], the relevant observations whereof are reproduced hereunder: "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." [Emphasis Supplied] 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. There is another important aspect of the case, which has also rightly been noted by the Trial Court, that if it was an inheritance under the customary law, whereby females were deprived of inheritance, there was no question of devolving of land upon Mst. Sifta (widow of Abdul Ghafoor). Thus, the findings of the Trial Court and first Appellate Court are correct and are accordingly upheld to this extent. This brings me to the next moot point in this case i.e. Question No. II. II) Whether the jurisdiction of Civil Court was barred under Section 25 of the Displaced Persons (Land Settlement) Act (XLVII of 1958) ("Settlement Act") read with Rehabilitation Settlement Scheme, Part II paras 46 & 67, as the Impugned Mutation was sanctioned by ARC while
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exercising jurisdiction under the Settlement Laws and the remedy of the Respondents/Plaintiffs, if any, was available under the Settlement Laws? 8. This question has also been authoritatively settled by the Supreme Court of Pakistan to the effect that jurisdiction of the Civil Court is barred viz the matters arising out of the claims under settlement laws, however, this settled position of law escaped the attention of both the Courts below and thus, the findings in this respect are not sustainable. As per the law settled by the Supreme Court of Pakistan, the Respondents/Plaintiffs had to exhaust the remedies available to them, if any, before the Settlement Authorities under the dispensation of Settlement Laws. Reliance may be placed upon following judgments of the Supreme Court of Pakistan; relevant paragraphs whereof are reproduced herein below: The Judgment in "Ahmad Din" case[7], which is applicable to the case in hand on all fours, holds: "Learned counsel appearing in support of this appeal has contended that the jurisdiction of the civil Courts to entertain a suit of this kind had not been taken away either by section 13 or section 18 of the Pakistan Rehabilitation Act, 1956 or by section 25 of the Land Settlement Act, 1958, for, no question relating to the evacuee nature of the property fell to be decided in this case. All that was sought was a declaration that the appellant was the sole heir of Allah Bakhsh with a consequential relief of an injunction for restraining the respondents from interfering with his possession. This contention is, however, now not tenable in view of the decision of this Court in the case of Mst. Zainab v. Mst. Raji[8] where it has been pointed out that the "Rehabilitation Authorities possess the necessary powers to hold enquiries into claims made by refugees and to decide all questions of inheritance, in accordance with the instructions issued by the Rehabilitation Commissioner (Lands) under Resettlement Scheme Punjab". the Rehabilitation Reference was also made by this Court in this connection to the instructions contained in paras. 46 and 46 A of the Rehabilitation Manual to show that since the question of inheritance to right-holders, as Allah Bakhsh was in the present case, was also to be decided by the Rehabilitation Authorities, the matter was in their exclusive jurisdiction and, as such, a similar question could not be allowed to be agitated in the civil Courts. In that case too, Mst. Zainab had filed a suit for a declaration that she was the sole heir of her deceased brother, who had died on the way to Pakistan and that, as such, she alone was entitled to receive whatever compensation was being paid or may be paid in Pakistan in respect of the holding of a deceased brother in India. There too a permanent injunction had been asked for, as in the case before us, for restraining the defendants therein from interfering with her rights. The suit was held to be barred under the provisions of sections 13 and 18 of Pakistan Rehabilitation Act of 1956. To the same effect is the decision of a Full Bench of the West Pakistan High Court in the case of Umar Daraz Ali v. Khurshid Ali.[9] There too it was held that the mutations sanctioned by the Rehabilitation or Revenue Authorities under paras. 46 and 46-A of the Rehabilitation and Re-settlement Scheme Punjab, which is simply a measure for the re- settlement of refugees in Pakistan, do not pertain to inheritance to the estates of deceased right- holders. This is in our view correct, we see no reason, therefore, to differ with the decision of the High Court that such a suit was not maintainable in the civil Courts. We are also in agreement with the High Court that the suit was barred by limitation. The appellant could not take advantage of the fact that he had filed a time-barred appeal from the mutation proceedings, for extending the period of limitation." [Emphasis Supplied] Although, the reference to "Mst. Zainab's",[10] case has been made in the above quoted paras of Ahmad Din supra, however, since the judgment in Mst. Zainab's case has also extensively dealt with the issue of jurisdictional aspect of such like matters, therefore, for the purpose of completeness, some squarely relevant observations from Mst. Zainab's dicta, are reproduced hereunder with great advantage:
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"The Rehabilitation Resettlement Scheme, Punjab, under which allotments on a permanent or semi-permanent basis, of evacuee lands in this area, are being made by the Rehabilitation authorities, was framed by the Rehabilitation Commissioner, Punjab, by virtue of powers derived from section 7 (I) of the Pakistan Rehabilitation Ordinance XIX of 1948, as amended by the Pakistan Economic Rehabilitation (Amendment) Ordinance XVI of 1949. In Act XLII of 1956, the corresponding provision which authorises the framing of such a Scheme is section 6. This is an exhaustive Scheme, covering pages 385 to 464 of the Evacuee and Rehabilitation Laws Manual, 1957. The Correction Slips, issued in respect of this Scheme, are printed at pages 480 to 506 of this Manual. This Scheme read with the parent legislation, provides a complete Code for allotment of evacuee lands to refugees or other persons and contains elaborate provisions for dealing with the claims made by refugees in respect of lands abandoned in India. Section 4 (2) of Act VII of 1956 declares that every order purporting to be made, or signed by the Rehabilitation authority, in lawful exercise of any power conferred by or under the Act, shall be presumed to have been so made by such an authority and no such order shall be called in question in any Court. Section 11 of the Act comprises of self-contained provisions in respect of appeals from orders of Rehabilitation officers to higher officers in the Department. Section 12 of the Act contains provisions for revision of certain orders by Government. Section 13 lays down that an order passed by the Rehabilitation Commissioner or Additional Deputy or Assistant Rehabilitation Commissioner shall be final, subject to the provisions of sections 11 and 12 and shall not be called in question in any judicial proceedings in any Court. Section 17 bars suits, prosecutions and other legal proceedings against the Central Government or any Rehabilitation authority or any person acting under the direction of that Government or authority, for anything which, in good faith, is done, purports or is intended to be done in pursuance of the Act. Section 18 expressly enacts that the jurisdiction of Civil Courts to question an order passed by a Rehabilitation authority under the Act, is barred and subsection (3) thereof declares that no such Civil Court shall be competent to adjudicate on the rights of or dispossess a person to whom any immovable property has been allotted or leased, by a Rehabilitation authority or by a Custodian or to issue an injunction or other order, in relation to any act done, or intended to be done, by a Rehabilitation authority, under the provisions of the Act. These provisions are of very wide import and it appears to us that, by necessary intendment, these provisions bar the jurisdiction of Civil Courts to entertain a declaratory suit of the kind under consideration. A declaratory decree, even if passed in such a suit, can be ignored by the Rehabilitation authorities and any order passed by such authorities contrary to a declaratory decree of this kind, would be immune from attack in a judicial proceeding. The Rehabilitation authorities possess the necessary powers to hold enquiries into claims made by refugees and to decide all questions of inheritance, in accordance with the instructions issued by the Rehabilitation Commissioner (Lands) under the Rehabilitation Resettlement Scheme Punjab. Reference in this connection may be made to instructions 46 and 46-A at pp. 408 and 409 of the Rehabilitation Manual. It would amount to encroachment on that special and exclusive jurisdiction, vested in the Rehabilitation authorities, if similar question were allowed to be agitated in the Civil, Courts. The object of the Rehabilitation laws being to settle the refugees on lands and give them certain rights, in as expeditious a manner as possible, such an exclusion of the ordinary Courts' jurisdiction is easily understandable. We are, therefore, unable to agree with the opinion of the learned Judge, who decided Heman v. Fazal that a declaratory decree in such a suit could affect any property in Pakistan. It would amount to no more than a pious resolution and would be a mere essay in futility. Assuming therefore, though not conceding the view taken by the learned Judge in Heman v. Fazal that section 16 of the Civil Procedure Code has no relevancy to the case and that section 20, Civil Procedure Code, might have enabled a Pakistan Court, prima facie to entertain a suit relating to title in lands in India in the absence of a legal bar, since no effective
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decree can at all be passed by Civil Court and the provisions of the Rehabilitation laws, by necessary intendment, exclude such jurisdiction; the Civil Courts' jurisdiction to entertain declaratory suits of the kind under consideration, must be held to be barred. We, therefore, find no force in the appeal and hereby dismiss it with costs." [Emphasis Supplied] Likewise, the case of "Mst. Zainab Bibi and others",[11] not only deals with the question of jurisdiction but also enunciates the important question of limitation in such like cases, therefore, the relevant observations by the Apex Court are reproduced as under: "Learned Judge of the High Court came to the conclusion that the petitioners did not plead in the plaint that the land in dispute was allotted in lieu of any land left by Jan Muhammad in India. Apart from this, we have also noticed that Mutation. No.18 attested on 20-5-1953 in respect of the claim holder under the Rehabilitation laws against which appeal filed by the petitioners was accepted by the Collector through order, dated 16-2-1971 against which revision filed by the respondents was accepted by the Rehabilitation Commissioner on 30-6-1971. In appeal, filed by the petitioners before the Assistant Commissioner/ Collector, it was stated that she came to know about the alleged fraud in the year 1970, but after decision by the Rehabilitation Commissioner on 30-6-1971, the petitioners kept quite up to 20-10-1977 when they filed the present suit. Under Article 95 of the Limitation Act, 1908, period of limitation for a suit on the ground of fraud is 3 years from the date of acquisition of knowledge of fraud, therefore, it was rightly held to be barred by time. Orders of the Rehabilitation Authorities under the Rehabilitation laws were immune from challenge before the Civil Court. The petitioners should have sought - remedy against the order, dated 30-6 1971 at the appropriate time before the higher forum, for, at the relevant time the said order could be challenged before the High Court in second revision under settlement laws. It has been rightly held that it was not mentioned in the plaint that the land in dispute was allotted against the claim of the land which was in the name of Jan Muhammad at the time of partition." [Emphasis Supplied] In the case of "Faizuddin Ahmad",[12] Supreme Court of Pakistan has held: "5. Respondent No.1 filed a civil suit to challenge the legality of the order dated 29-1-1974 of the Additional Settlement Commissioner. The suit was resisted by the appellant. The trial Court framed as many as six issues on the pleadings of the parties. One of the issues related to the competency of the Civil Court to entertain the suit of respondent No.1. The learned trial Court held that the Civil Courts had no jurisdiction to entertain the suit. It then did not record any finding on the other issues and rejected the plaint under rule 11 of Order VII, Civil Procedure Code. Its order was affirmed by the Additional District Judge, Sheikhupura in first appeal. Respondent No.1 then filed a second appeal in the High Court. 6. A learned Single Judge in the High Court re-examined the legal position and came to the conclusion that the jurisdiction of the Civil Courts to entertain the suit of respondent No.1 was not barred. He described the finding of the Additional Settlement Commissioner that the transfer obtained by respondent No.1 was tainted with fraud, as superficial, sketchy and inconclusive. After holding that the Civil Courts had the jurisdiction to try the suit the learned Single Judge, instead of remanding the suit back to the trial Court for decision or other issues, himself disposed of the case with the observation: "Firstly, the main question involved is a question of law but even a question of fact could be determined by this Court under section 103, C.P.C. It is to be noted that the Civil Court got the entire evidence and exhibited all the documents being relied upon by the parties. The question involved is only and question of law In the circumstances, it is not necessary to send this case back."
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The learned Single Judge then held that the order of the Additional Settlement Commissioner dated 29-1-1974 was without jurisdiction and void. Accordingly, he set aside the judgments and orders of the Courts below and granted the declaration sought by respondent No.l. 7. Leave to appeal was granted in this case for examination of the following two questions:- (i) Whether the Civil Court had jurisdiction to try the subject-matter of the suit in question, which related to the transfer of the property under Lands Settlement Law; and (ii) Whether in case the Civil Court has jurisdiction. the High Court should have, instead of remanding the case for proper trial and decision by the learned trial Court (the plaint was rejected in this case under Order 7, Rule 11), decided it itself, decreeing the suit in favour of the respondent. 8...... 9...... 10..... 11. Section 25 of the Displaced Persons (Land Settlement) Act ousted the jurisdiction of the Civil Courts in respect of matters which the Central Government or any Officer appointed under the Act was empowered by or under the Act to determine. As the order of the Additional Settlement Commissioner, exercising the powers of the Chief Settlement Commissioner, fell well within his competence the provisions of section 25 were attracted in this case;…
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