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Petitioner: FAZEELAT AGHA VS Respondent: CHIEF SETTLEMENT COMMISSIONER, MBR, PUNJAB LAHORE JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Ijaz-ul-Ahsan, Sajjad Ali Shah, Mian Saqib Nisar Title:FAZEELAT AGHA vs CHIEF SETTLEMENT COMMISSIONER, MBR, PUNJAB LAHORE
JUDGMENT
Reported As: 2019 P.S.C. 402, 2019 SCP 120, 2019 SCMR 417 Result: Order accordingly Judgment JUDGMENT MIAN SAQIB NISAR, C.J.---The facts giving rise to the present matter are that the review petitioner is the successor-in-interest of the heirs of Nawab Faiz Ali Khan of Karnal, East Punjab, who had a Jagir at Karnal and owned agricultural land to the extent of 6597 Biggas in village Malkana, Tehsil Bhawanigarh, District Sanam of Patiala State. He also owned urban immovable property in Patiala State. Nawab Faiz Ali Khan died in 1917 and according to the Shajrah Nasab of the family, he was survived by his four sons namely Nawabzada Mumtaz Ali Khan, Nawabzada Fayyaz Ali Khan, Nawabzada Aftab Ali Khan' and Nawabzada Rajab Ali Khan. Nawabzada Rajab Ali Khan is reported to have died in 1986, issueless. The agricultural land was mortgaged against a debt of Rs.50,000/- prior to the death of Nawab Faiz Ali Khan in 1917, and was in possession of the mortgagees, when except for Nawabzada Mumtaz Ali Khan, all other sons were minors. 2. After partition, all four brothers migrated to Pakistan. Nawabzada Mumtaz Ali Khan filed Claim Form No.6107 for the property abandoned in India and similarly, the other three brothers, Nawabzada Fayyaz Ali Khan etc. filed separate Claim Form No.8258 in respect of their share in the property. The Central Record Office, Lahore, verified the entire abandoned land against Claim Form No.6107 of Nawabzada Mumtaz Ali Khan and the claim filed by the other three brothers was returned with the remarks that no land in their names was found in the Register Haqdaran. Nawabzada Fayyaz Ali Khan and his two brothers approached the Settlement and the Rehabilitation Authorities urging that the agricultural land pertaining to their share should be
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verified as, their names duly stood entered in the Pedigree Table of their late father Nawab Faiz Ali Khan. However, their applications were dismissed summarily, firstly by the Additional Rehabilitation Commissioner on 13.10.1955 and then by the Rehabilitation Commissioner on 12.02.1959 on the ground that according to the Revenue Record received from India, Nawabzada Mumtaz Ali Khan was the sole owner of agricultural land in the Malkana Estate and the other brothers had failed to agitate for correction of entries in the said Revenue Records from the time they attained majority until partition. The Rehabilitation Commissioner failed to take into account the statement of the counsel for the claimants that he had approached the Civil Court in Pakistan for correction of entries in the Revenue Record of India, however, the Civil Court found that it could not adjudicate on entries in the Revenue Record in India. Being aggrieved by the orders of the Rehabilitation Authorities, Nawabzada Fayyaz Ali Khan etc. filed W.P. No.193-R/1959 in the High Court but the same was dismissed on 13.07.1959 on the short ground that the father of the writ petitioners had died in 1917 and the Rehabilitation Commissioner was justified in refusing to re-open the matter. 3. Subsequently, relying on certain decisions of the Courts, Nawabzada Fayyaz Ali Khan etc. filed another W.P. No.592-R/1960 but this too was dismissed on the sole ground that the point involved was decided against the writ petitioners in the earlier writ petition. Subsequent thereto L.P.A. No.2/1961 was also dismissed. Ultimately, C.P.L.A. No.77/1962 was filed by the said three brothers in the Supreme Court of Pakistan. 4. In the meantime, the dispute in respect of abandoned urban immovable property owned by Nawab Faiz Ali Khan in India, which was pending before the Claims Organization, was decided and the entire property was distributed in equal shares in favour of all the four aforementioned brothers vide orders of the Deputy Claims Commissioner, Lahore, dated 18.09.1959 and 31.12.1959. In view of this, it was urged before the Supreme Court by these three brothers that the agricultural land left by Nawab Faiz Ali Khan should also be distributed in favour of all the four brothers equally. The Supreme Court vide judgment dated 19.07.1962, dismissed the C.P.L.A. No.77/62 with the following observations:- "The fact that in the meantime, a finding in favour of the petitioners was given by the Deputy Claims Commissioner does not alter the situation. The grievance of the learned counsel is that no Tribunal has yet determined on the merits the question as to whether the petitioners are entitled to inherit their father's land. That may be so, but the remedy lies only with the Rehabilitation Authorities, who have clear jurisdiction in the matters." [Emphasis supplied] 5. The predecessors-in-interest of the petitioner could not avail the benefit of the abovementioned observations of the Supreme Court for some time because the orders dated 18.09.1959 and 31.12.1959 passed by the Deputy Claims Commissioner in respect of verification of urban property in their favour, on the basis of which they were requesting for verification of claim of agricultural land, had been challenged by the legal heirs of Nawabzada Mumtaz Ali Khan. These orders of the Deputy Claims Commissioner were set aside by the Additional Claims Commissioner vide his order dated 25.04.1961. A Revision Petition against the said order remained pending with the Claims Commissioner for eight years and it was only on 05.11.1969 that the Claims Commissioner restored the orders of the Deputy Claims Commissioner affirming the entitlement of all four brothers to get equal shares in the urban property of the late Nawab Faiz Ali Khan. Subsequent thereto, W.P. No.915-R/1973 was filed against the order of the Claims Commissioner which remained pending for 11 years and was ultimately dismissed for non-prosecution on 15.10.1984 by the High Court. These orders do not appear to have been challenged further by any interested party with the result that the orders of the Deputy Claims Commissioner as well as the order of the Claims Commissioner upholding the orders of the Deputy Claims Commissioner attained finality by dismissal of the said writ petition. In view of this, the predecessors-in-interest of the petitioner, after dismissal of the said
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writ petition, represented to the Chief Settlement Commissioner for verifying their claim for agricultural land, in the light of observations of the Supreme Court quoted above, but they failed to get any relief. The predecessors-in-interest of the petitioner then filed W.P. No.121-R/1989 in the High Court. This writ petition was disposed of by the High Court on 11.2.1990 with the observations as reproduced below:- "After arguing the case at considerable length, learned counsel for the petitioner states that they do not press this writ petition as the petitioner shall take appropriate remedy before the relevant Authorities on the basis of the observations made in the Judgment of the Supreme Court of Pakistan dated 19.7.1962 rendered in petitioners' Civil Petition for Special Leave to Appeal No.77 of 1962. Writ Petition, accordingly, stands disposed of as not pressed." 6. Pursuant to the observations of the Supreme Court and in the light of the orders of the Lahore High Court in W.P. No.121-R/1989, the predecessors-in-interest of the petitioner approached the Member (Settlement and Rehabilitation), Board of Revenue, Punjab, with the request that their claim in respect of their shares in the abandoned land may be verified. 7. The Rehabilitation Commissioner, in his order dated 26.02.1992, found as to the maintainability of the petition, that in the past, the Rehabilitation Authorities refused to verify the claim of Nawabzada Fayyaz Ali Khan, Nawabzada Aftab Ali Khan and Nawabzada Rajab Ali Khan merely on the technical ground that in the Jamabandi received from India, the name of only Nawabzada Mumtaz Ali Khan, the eldest son of Nawab Faiz Ali Khan was mentioned as the sole owner. The grievance of the other three sons that they could not be deprived of inheritance from their father's land was neither attended to nor dealt with by the Rehabilitation Authorities nor were any findings, for or against them, given on the point. The remedy in this respect, as also observed by the Supreme Court in its orders dated 19.07.1962, clearly lay with the Rehabilitation Authorities. While the controversy on this point was resolved by the Authorities in the Claims Organization in so far as urban property of Nawab Faiz Ali Khan was concerned, the matter was still undetermined as to the agricultural land. Notice was taken of the fact that except for the allotment of agricultural lands to the extent of about 36,000 PIUs made against the Claim Form No.6107 in favour of Nawabzada Mumtaz Ali Khan or his heirs, the remaining Units out of the total of about 80,000 PIUs were still lying unsatisfied/pending and could be adjusted for allotment in favour of the petitioner(s) against their share of inheritance if found to be so entitled. Reliance in this respect was placed on the judgments of the Supreme Court passed in C.As. Nos.215/1990 and 653/1990, in which it was observed that the pending Units could be adjusted against any available land. Considering all the facts and, more particularly, in view of the observations of the Supreme Court, in its order dated 19.07.1962 in C.P.L.A. No.77/1962 and in the orders of the Lahore High Court in W.P. No.121-R/1989, dated 11.02.1990, it was found that the case of the predecessors-ininterest of the petitioner case was fully covered by section 2(2) of the Displaced Persons Laws (Repeal) Act, 1975 as, for all practical purposes, it fell within the ambit of "pending proceedings". 8. On the merits the Rehabilitation Commissioner found that as established from the judicial orders/judgments of various Courts, Nawabzada Mumtaz Ali Khan was never put down as the owner of the landed property of village Malkana, India and other urban immoveable property of the Jagir in his own right. It was an admitted fact that he had derived interest in the property as eldest son of Nawab Faiz Ali Khan. Furthermore, it was accepted that Nawab Faiz Ali Khan was survived by four sons, namely, Nawabzada Mumtaz Ali Khan, Fayyaz Ali Khan, Aftab Ali Khan and Rajab Ali Khan as per the Pedigree Table received from India, the authenticity of which was not challenged by anyone. The claim of the petitioners had been resisted by Nawabzada Mumtaz Ali Khan only on the ground that the family was governed by the Rule of Primogeniture, under which Nawabzada Mumtaz Ali Khan would be treated as the sole owner to the exclusion of his three brothers. Thus, there was no dispute that Nawabzada Fayyaz Ali Khan, Aftab Ali Khan and Rajab Ali Khan were the
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legal heirs of Nawab Faiz Ali Khan, as his sons. 9. The Rehabilitation Commissioner concluded that the only question to be determined was whether the other three brothers were entitled to equally share the inheritance of Nawabzada Faiz Ali Khan as his sons or not. Mr. Abdul Rehman, Naib Tehsildar, Central Record Office, Lahore, in his statement, confirmed the Pedigree Table received from India showing the said four sons to be legal heirs of Nawab Faiz Ali Khan. He also confirmed that the entire landed property of Nawab Faiz Ali Khan in the Estate of Malkana, India, had been verified against the Claim Form No.6107 of Nawabzada Mumtaz Ali Khan, as according to the Jamabandi received from India, his name was entered as the sole owner of the said land. He also invited the attention of this Court to a note annexed with the Jamabandi, which indicated that the entire ownership had been entered in the name of Nawabzada Mumtaz Ali Khan as being the eldest son and that the other sons, Nawabzada Fayyaz Ali Khan, Aftab Ali Khan and Rajab Ali Khan had not been given any share in tht ownership as per family custom prevalent in the estate. However, he admitted that this note was unsigned and un-dated and there was no documentary proof available in the Central Record office relating to the Family Custom so mentioned, although, it was for this reason that the entire land abandoned in village Malkana, India was verified against the Claim Form filed by.Nawabzada Mumtaz Ali Khan. 10.It is pertinent to note that the Rehabilitation Commissioner took into account the detailed enquiry conducted by the Claims Organization regarding the question of existence or prevalence of such custom in the particular family of Mandal Afghans to which Nawab Faiz Ali Khan belonged. He recounted that evidence was recorded of Rukn-ud-Daula Shamsher Jang Nawab Muhammad Sajjad Ali Khan, the elder brother of the first Prime Minister of Pakistan, Nawabzada Liaqat Ali Khan. Nawab Sajjad Ali Khan was also the head of a Mandal family from Karnal and testified that the Rule of Primogeniture did not apply to Mandal Afghans, rather, they were governed by Shariah law as far as the distribution of property amongst the sons was concerned. It was finally held by the Deputy Claims Commissioner and the Claims Commissioner that no such custom was conclusively proved and rather it was established that excepting the exclusion of females from inheritance, the family was governed in all matters by Mohammadan Law and, therefore, it was ordered that the urban immovable property of Nawab Faiz Ali Khan should be equally distributed among the four sons of Nawab Faiz Ali Khan. The case of Mst. Lali Begum v. Nawab Muhammad Azmat Ali Khan (Punjab Record 1875, Vol. 10, page 21) was relied on. 11. Thus, the judicial orders of the Claims Organization, which had attained finality, were considered to be a very important and strong piece of evidence by the Rehabilitation Commissioner, Punjab. 12.It was clearly held by the said authorities that the Rule of Primogeniture in matter of succession other than Jagir property was not followed in this particular family and, therefore, the immovable property vested in all the four brothers in equal shares. This view was further fortified in the judgment in 13 Punjab Records, 1875, wherein it was held that male members of the Mandal Afghan family to which the parties belonged were governed by Mohammadan Law. 13.In light of the findings of the Claims Organization and relying on the statement of the Naib Tehsildar, Central Record Office, the Rehabilitation Commissioner held that no substantial evidence existed to show that the succession of Nawab Faiz Ali Khan was to be governed by the Rule of Primogeniture. Furthermore, following the principle laid down in 13 Punjab Records, 1875 as reaffirmed by the Judicial pronouncements of the Authorities in the Claims Organization which had since attained finality, it was found that Nawabzada Fayyaz Ali khan, Aftab Ali Khan and Rajab Ali Khan being, admittedly, the sons of Nawab Faiz Ali Khan were to be treated at par with their eldest brother Nawabzada Mumtaz Ali Khan. Accordingly, they were declared to be entitled to the inheritance in the agricultural land of Malkana- Estate in equal shares and consequently, had the right to get allotment of agricultural land to the extent of their respective shares.
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14.Hence the Rehabilitation Commissioner concluded that the entire area of 6597 Biggas abandoned in Village Malkana, India, was verified against Claim Form No.6107 filed by Nawabzada Mumtaz Ali Khan. The total Units of this claim came to about 80,000 out of which the claim to the extent of 36,000 PIUs was already allotted to Nawabzada Mumtaz Ali. Khan in Village Sanatpura, Akbar Ghenoky and Kingrianwali, Tehsil and District Gujranwala. The Rehabilitation Commissioner ordered that all the four brothers should be formally treated as heirs of Nawab Faiz Ali Khan and should be given equal shares in the Claim Form No.6107 to the extent of 20,000 Units each. In that way, the entitlement of Nawabzada Mumtaz Ali Khan, Nawabzada Fayyaz Ali Khan and Nawabzada Aftab Ali Khan or their heirs, in view of Nawabzada Rajab Ali Khan having died issueless would be enhanced from 20,000 Units to approximately 26,666 Units each. Nawabzada Mumtaz Ali Khan had already got allotment to the extent of 36,000 Units, which was in excess of his actual entitlement to the extent of 9,334 Units. The allotments were very old and most of the allotted area had been sold to different vendees and had since changed hands. The predecessors-in-interest of the petitioner, who were the heirs of Nawabzada Fayyaz Ali Khan and Aftab Ali Khan, voluntarily surrendered their claim to the excess allotment obtained by Nawabzada Mumtaz Ali Khan and expressed their willingness to accept proportionate reduction in their own entitlement. Accordingly, it was decided that all the allotments of agricultural land obtained by Nawabzada Mumtaz Ali Khan, who had paid the mortgagee who had also migrated to Pakistan and redeemed the mortgage, or his heirs against Claim Form No.6107 were not to be disturbed and would remain intact. The net result would be that the entitlement of Nawabzada Fayyaz Ali Khan and Nawabzada Aftab Ali Khan would be reduced from 26,666 Units to approximately 22,000 Units each and their legal heirs, the predecessors-in-interest of the petitioner, would be entitled to get allotment to the said extent, i.e. up to 22,000 units in each case. 15.In line with his findings, the Rehabilitation Commissioner ordered that the concerned Authorities of District Gujranwala, where Claim Form No.6107 was pending would proceed further in accordance with paragraph No.67 of the Rehabilitation Settlement Scheme to settle the claim of the predecessors-in-interest of the petitioner by sanctioning the necessary mutations of inheritance and issuance of certificates of units in their favour according to the shares as determined vide his order dated 26.02.1992. The predecessors-in-interest of the petitioners would be entitled to get allotment of evacuee agricultural lands available anywhere in the Province, against these Entitlement Certificates which could be transferred to any other place as per their choice, if so desired. 16.The order of the Rehabilitation Commissioner dated 26.02.1992 was impugned before the Lahore High Court in W.Ps. Nos.183-R/1992, 10-R/1993 and 62-R/1993. The Lahore High Court, on 18.04.1993, dismissed in limine, W.P. No.183-R/1992 filed by Mst. Qamar Sultana, daughter of Faiz Ali, with the direction to the heirs of Mumtaz Ali Khan to settle the matter with Mst. Qamar Sultana within two months failing which she would be at liberty to file a fresh writ petition. In respect of W.P. No.10-R/1993 filed by the legal heirs of Fayyaz Ali Khan and Aftab Ali Khan, their counsel conceded that they were willing to surrender a portion of their shares for amicable settlement of the matter. Such proposal was accepted by the counsel for Mst. Qamar Sultana and the parties were given a period of two months to settle the matter. Writ Petition No.62-R/1993 was filed by Mst. Qamar Sultana seeking a share of the land left by her father, Nawab Faiz Ali Khan. While disposing of the said writ petitions, the High Court took the view that Mst. Qamar Sultana had no locus standi to challenge the impugned order dated 26.02.1992, that the Settlement Commissioner rightly held the brothers of Mumtaz Ali Khan to be entitled to their respective shares and that the writ petitioners had failed to make out the case to interfere with the order dated 26.02.1992 on merits or otherwise. The order dated 26.02.1992 was directed to be implemented subject to compromise with Mst. Qamar Sultana. The three writ petitions were disposed of in the said terms. It is pertinent to note
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here that the Chief Settlement Commissioner was impleaded as a party in W.P. No.183-R/1992. He appeared and was represented by counsel during the proceedings. 17.The respondents filed C.P.L.A. No.1153-L/1993 against the judgment in W.Ps. Nos.183-R/1992, 62- R/1993 and 10-R/1993. The Chief Settlement Commissioner was again impleaded as a party in the said C.P.L.A. The august Supreme Court found that the learned Single Judge in chambers proceeded on sound and equitable principles. Since the urban property left by Nawab Faiz Ali Khan was distributed amongst all his four sons, there was no reason why the rural agricultural property should be given in its entirety to the eldest son of Nawab Faiz Ali Khan. It was also held that there was force in the contention that Mumtaz Ali Khan was not an aggrieved party after passing of the impugned judgment since excess area previously allotted to him had not been cancelled. The C.P.L.A. No.1153-L/1993 was dismissed on the said grounds on 29.01.1995. Thus, the order of the Rehabilitation Commissioner dated 26.02.1992, which had merged in the judgment of the High Court in W.P. No.183-R/1992, was upheld by the Supreme Court. 18.C.R.P. No.41-L/1995 was filed against the judgment of the Supreme Court whereby C.P.L.A. No.1153-L/1993 was dismissed. The Supreme Court vide its order dated 26.04.1995 dismissed the said review. 19.Subsequent thereto, the predecessors-in-interest of the petitioner filed W.P. No.17-R/1998 in the Lahore High Court for implementation of the judgment of the Supreme Court dated 29.01.1995, whereby the order of the Rehabilitation Commissioner dated 26.02.1992 had been upheld by the Supreme Court. The High Court disposed of the petition vide order dated 22.01.1998, directing that the Supreme Court judgment be implemented. The Secretary Revenue/Settlement Commissioner Lands (Urban)/Notified Officer, Board of Revenue, Punjab and the Assistant Commissioner, Lahore Cantt., were impleaded as respondents in the said petition. 20.Meanwhile, Chief Settlement Commissioner, after six years of the order of the Rehabilitation Commissioner and despite having been a party before the High Court as well as the Supreme Court whereby the said order dated 26.02.1992 was upheld, filed W.P. No.91-R/1998 before the Lahore High Court, in order to challenge the order of the Supreme Court, in total and complete violation of the principles of res judicata and Article 189 of the Constitution of the Islamic Republic of Pakistan (Constitution). A second writ petition (W.P. No.66-R/1998) was filed by one Muhammad Sharif who claimed to be an occupant of land bearing Khasra Nos.3196, 3498, 3511 and 3513 measuring 20 kanals situated in village Mall District Lahore. According to him, he was in possession of the land for 20 years in lieu of his unsatisfied pending units. It was contended by him that the said land had been wrongly allotted in the names of the heirs of the three sons of Nawab Faiz Ali Khan and that it should be sold to him after its cancellation from their names. The third writ petition (W.P. No.77-R/1998) was filed by Nawabzada Ayyaz Ali Khan etc. assailing the order dated 12.02.1998 passed by the Chief Minister, Punjab, on the summary submitted by the Chief Settlement Commissioner to him, whereunder the Chief Settlement. Commissioner was directed to proceed in accordance with law and undo the fraudulent allotments so as "to ensure safeguard of public interest". 21. The consideration of the learned High Court was invited during the hearing of W.P. No.91-R/1998 by Ch. Khurshid Ahmed, the counsel for the predecessor-in-interest of the petitioner, that since the order of S. A. Manan J. in the three writ petitions was assailed further before Supreme Court of Pakistan (C.P.L.A. No. 1153-L/1993) and leave was not granted therefore, the order dated 29.01.1995 had attained finality and was binding on the parties. The learned Judge-in-Chambers found that this contention was devoid of force. He based his finding on an erroneous interpretation of the law, holding that the Supreme Court, in Fazal Muhammad Chaudhry v. Ch. Khadim Hussain and 3 others (1997 SCM R 1368 at 1370) had laid down the law to the effect that if there is' a conflict between two decisions of the Supreme Court then the decision of the Larger Bench would prevail. The learned
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Judge failed to take into consideration that this dictum applied to the ratio decidendi of judgments being relied on as precedents in a case, and it could not operate to overrule an earlier judgment of the Supreme Court in the same case inter se the parties. The principles of res judicata and the effect of Article 189 supra were wholly ignored in reaching this conclusion and a matter finally decided by the Supreme Court was re-opened by the High Court. 22.In the same vein, the Judge-in-Chambers concluded that the order dated 29.01.1995 in C.P.L.A. No.1153-L/1993 was passed by two learned Judges of the Supreme Court whereas the decision rendered in Syed Saifullah v. Board of Revenue, Balochistan through its Member (RJT) and 4 others (1991 SCM R 1255) and Syed Ali Ibne Muhammad and others v. Province of Punjab, Settlement and…
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