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Petitioner: IRSHAD MASIH and otherss VS Respondent: EMMANUEL MASIH and others
Court Name: Supreme Court of Pakistan Judge(s): Anwar Zaheer Jamali, Sarmad Jalal Osmany, Ijaz Ahmad Chaudhry Title: IRSHAD MASIH and otherss vs EMMANUEL MASIH and others Case No.:Civil Review Petition No,235 of 200 9 Civil Appeal No,1244 of 2003 C.A.
JUDGMENT
Reported As: 2014 SCMR 1481 Result: Petition accepted Judgment JUDGMENT ' SARMAD JALAL OSMANY, J.---This Civil Review Petition seeks review of this Court's Order dated 22- 10-2009 whereby Civil Appeal No, 1244 of 2003 was dismissed and the impugned Judgment of the Learned High Court was upheld. 2. Briefly stated the facts of the case are that the property in dispute was leased to one Aroura who had four sons namely Fazal, Barkat, Gulla and Labha. Aroura died in the year 1933 and the property devolved upon Fazal, Barkat and Gulla i,e, 100 kanals each whereas Labha did not get anything as apparently he had already received his share from Aroura. Fazal died in the year 1935 and his share of the properiy devolved upon his widow Karima Bibi and after her death, the property was inherited by her daughter Mst. Margaret who obtained proprietary rights in the year 1945. Mst. Margaret was constrained to file a civil suit against Labha to protect her share of the property which was partially decreed to the extent of a life estate per section 30-A of the Colonization of Government Lands (Punjab) Act, 1912. The Appeal filed by Mst. Margaret was dismissed and so also the Revision before the learned Multan Bench of the Lahore High Court. However it was observed that as in the parallel litigation launched by Labha which had concluded before this Court his claim of inheritance from his father Fazal was accepted i,e, he would get 75 kanals of the disputed property, therefore the claim of Mst. Margaret was reduced to 75 kanals and it was held that the legal heirs of Labha would get 25 kanals each from the other brothers viz Gulla and Barkat. It was again observed in the said Judgment that such claim would be subject to the provisions of section 30-A of the Act 1912. Both parties filed Petitions before this Court which were dismissed and the observations of the learned High Court as to the applicability of section 30-A of the Act 1912 as also
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the right of Mst. Margaret to hold 75 kanals and that of the legal heirs of Labha to hold another 25 kanals each of the disputed property from Gulla and Barkat was upheld. 3. Thereafter the appellants, being the legal heirs of Mst. Margaret, filed an execution application before the learned Civil Judge for execution of the decree as modified by this Court viz. To the extent of 75 kanals of land which was dismissed by the executing Court on the ground that there was no Order in the field which would give any right to the appellants to execute the decree. Upon Appeal the learned District Judge directed that the matter should be disposed of upon a deeper appreciation after taking evidence and hence remanded. The respondents filed Writ Petition No, 1189 of 2001 against such Order of the learned Appellate Court which was allowed on the ground that the property had reverted to the legal heirs of the last male tenant under section 30-A of the Act, 1912 upon the death of Mst. Margaret and hence the learned executing Court had rightly come to, the conclusion that no lis remained in the matter as there was nothing to execute. As observed above, this Court vide Judgment under review upheld the views of the learned High Court. 4. Malik Noor Muhammad Awan, learned Advocate Supreme Court appearing for the petitioners has firstly submitted that provisions of section 30-A of the Act, 1912 reflect customary law and this has been done away by virtue of section 29 read with section 37 of the Succession Act, 1925 in the case of Christians whereby in intestate succession, the property of the Deceased would be inherited by the surviving child and if more than one, it shall be equally divided amongst all the surviving children. In this regard he has relied upon Samual and others v. Pyara Masih and others (1996 CLC 562) and Mst. Inayat Bibi through Legal heirs v. Issac Nazir Ullah and 2 others (PLD 1992 SC 385). Per learned Advocate Supreme Court the customary law insofar as Muslims are concerned has also been done away under the West Pakistan Muslim Personal Law (Shariat) Act, 1962 for which submission he relied upon Mst. Began v. Mst. Bai (1983 SCM R 80) wherein it has been held that the estate held by females under section 30-A(1) of the Act, 1912 was really a limited estate held under custom which were terminated by the Act 1962 and a widow was entitled to hold only her share as determined under Muhammadan Law. Consequently per learned Advocate Supreme Court the observation of the learned Lahore High Court in Writ Petition No,1189 of 2001 that upon the death of Mst. Margaret on 15-10-1996 her property would revert back to the legal heirs of the last male tenant under section 30-A of the Act, 1912 was incorrect. Consequently this Court also fell into error while relying upon the observation of the learned High Court which was in fact also held by this Court in Civil Petitions Nos. 506-L, 258-L and 1-L of 1994 wherein the dispute between the parties had been finally adjudicated regarding the share of Mst. Margaret. His next submission is that even if section 30-A of the Act, 1912 was to be applied to the case then, Mst. Margaret could not be non-suited as she had prior to her death acquired property rights in the land in question and consequently her case would be covered under subsection (2) of section 30-A of the Act, 1912. For this proposition learned Advocate Supreme Court has relied upon Mst. Bakhtawar by her Legal heirs v. Sanatta and another (1993 SCM R 1094). Finally his submission is that a bare reading of section 30-A(1) of the Act, 1912 would adequately establish that after the termination of Mst. Margaret's life estate the property again would come to the appellants if Fazal is considered to be the last male tenant as they are the legal heirs of Fazal. 5. On the other hand Mr. Mian Mohammad Hanif, learned Advocate Supreme Court for the respondents has fully supported the Judgment under review. 6. We have heard the learned Advocate Supreme Court and perused the record very carefully along with his assistance. 7. It would be seen that the dispute regarding the share of Mst. Margaret was finally decided by this Court in Civil Petitions Nos.506-L, 258-L and 1-L of 1994 whereby it was held that:-- "That being so, the High Court has rightly held that she could continue to occupy the suit land and enjoy its usufruct during her life time and on her death, it would devolve upon the legal heirs of the
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last male tenant under section 30-A of the Colonization of Government Lands (Punjab) Act 1912. As regards other petition filed by Mst. Margaret suffice it to observe that she having willingly agreed before the learned judge in the High Court to accept 75 kanals of land instead of 100 kanals which cannot be permitted to wriggle out of her willing stance. Even otherwise in view of the decision of the parallel litigation whereby the sons of Labha were held entitled to 1/4th share in the estate of Arora they can legitimately claim their share proportionate from Mst. Margaret and the sons of their other two uncles. In the circumstances the direction of the learned judge in the High Court allowing the heirs of Labha got 25 kanals of land from Mst. Margaret and 50 kanals from the heirs of Barkat and Gulla is quite just and fair." A bare reading of the findings of this Court, reproduced above, would more than adequately establish that Mst. Margaret was held to be entitled to 75 kanals of the disputed property instead of 100 kanals as a life estate and on her death it would revert to the legal heirs of the last male tenant per section 30-A(1) of the Act 1912. As Fazal was indeed the last male tenant and his legal heir was his widow Mst. Karima Bibi and upon her death, his daughter Mst. Margaret and ultimately the petitioners, therefore the property would devolve upon them in equal shares as per sections 29 and 37 of the Succession Act, 1925. In this regard it would also be seen that as held by this. Court in the case of Mst. Inayat Bibi through Legal heirs v. Issac Nazir Ullah and 2 others (PLD 1992 SC 385), customary succession, so far as Christians are concerned, was altered by section 29 of the Succession Act, 1925 whereby same was abolished in the Punjab. 8. For the foregoing reasons, I would allow this review Petition thereby setting aside the Judgment under review with the result that Civil Appeal No, 1244 of 2003 stands allowed. The matter is remanded to the concerned Deputy Commissioner who would determine the legal heirs of Mst. Margaret and thereafter proceed to mutate the property in their names in equal shares in accordance with the provisions of section 37 of the Succession Act, 1925, Order accordingly. Sd/- ' Sarmad Jalal Osmany, J. Sd/- ' Ijaz Ahmed Chaudhry, J. ' I have appended by separate note of disagreement. Sd/- ' Anwar Zaheer Jamali, J. ' ANWAR ZAHEER JAMALL J.---I have the benefit of carefully going through the order proposed to be delivered in this review petition, authored by my learned brother Sarmad Jalal Osmany, J., for whom I have great reverence. For multiple reasons, as recorded hereafter, I am unable to concur with his view, contained in it, therefore, I venture to write following order of my own in this petition. 2. This case has a checkered history, consisting of multiple rounds of litigation between the parties, spreading over more than forty five years. Therefore, for a better understanding of the limited scope of this review petition vis-a-vis the legal and factual contentions involved/raised in it, it will be in the fitness of the things to recapitulate all these facts in the, first place. 3. One Arora, paternal grandfather of Mst. Margaret, who was predecessor-in-interest of the present petitioners, Irshad Masih and others, held tenancy rights in 300 kanals, 1 marla of the State land in Chak No,190/9-AL, Tehsil and District Sahiwal under the Colonization of Government Lands Act, 1912 (the Act of 1912). He was Christian by faith and died in the year 1933, leaving behind four sons Gulla, Fazal, Barkat and Labha to inherit his estate. Labha having been initially deprived of his share in the said land onthe plea that he got some other State land granted in his name, filed a suit for declaration that he was owner in possession of 1/4th of the land left behind by his father Arora at the time of his death. The other side resisted his claim on the ground that Arora during his life time had filed an application on 7-9-1931 before the Collector seeking permission to gift 11 acres of land in favour of one Sohan Lal, while the remaining land, which was not under any dispute was
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transferred in favour of his remaining three sons Gulla, Fazal and Barkat, as Labha was excluded for the reason that he later got some other State land. The requisite permission for this gift was granted by the Collector during the life time of Arora on 16-1-1932. However, when mutation No,20 was sanctioned the gift in favour of Sohan Lal was again disallowed, who later filed an appeal before the Commission, which was accepted and accordingly the Collector, vide order of the appellate authority dated 12-5-1934, was directed to implement the order dated 16-1-1932. In these circumstances, heirs of Arora, excluding Labha became entitled to the land they were in possession, while Labha was left with no share from the State land granted to Arora. This first round of litigation ended vide judgment of the apex Court dated 10-12-1991, upholding the gift of some land by Arora in favour of Sohan Lal. 4. On the other hand, upon the demise of Fazal (paternal grandfather of the petitioners), having no male issue, his widow Mst. Karam Bibi, acquired his share in land under the custom as limited owner, which thereafter upon her second marriage devolved upon her only daughter Mst. Margret, as limited owner. It is pertinent to mention here that it is this piece of land, which is now the subject matter of present proceedings. In the years 1945 to 1949, Mst. Margret by depositing zar-e-malkiat also obtained proprietary rights, in 100 kanal of the land devolving upon her through her paternal grandfather Fazal via Mst. Karam Bibi as limited owner. In this scenario on 25-5-1968, Mst. Margret, due to threat of her illegal dispossession from the disputed land by her uncle Labha filed a suit for declaration and permanent injunction, which was disposed of by the Court of Civil Judge Sahiwal, vide its judgment dated 20-1-1969, with clear observation that the declaration prayed for as full owner was not granted, however, she was held entitled to enjoy the possession of suit land during her life time as limited owner. Thus her right of alienation and succession were to be governed under section 30-A of the Act. Simultaneously, by the same judgment the other suit instituted by Labha for claiming his share in the estate of Arora was also dismissed. Against this judgment Mst. Margret as well as Labha filed their separate appeals before the Court of Additional District Judge, Sahiwal, which were dismissed vide common judgment dated 23-5-1969. 5. Aggrieved by the judgments of the two Courts both Mst. Margret and Labha separately filed second appeals before the Lahore High Court, being R.S.A. No,737 of 1969 sand 849 of 1969, which were disposed of, vide its common judgment dated 8-12-1993 with the observation that Mst. Margret was entitled to 75 kanals of land during her life time as limited owner instead of 100 kanals, while Labha was entitled to 25 kanals land from Mst. Margret and rest of the 50 kanals from the two other sons of Arora i,e, Gulla and Barkat. Still dissatisfied, the judgment of the appellate Court/Lahore High Court was challenged by both the parties before the honourable Supreme Court of Pakistan, vide C.P.L.As. Nos.506 of 1994 and 258 of 1994, respectively filed by Labha and Margret's successors. This round of litigation came to an end when the Supreme Court, vide its judgment dated 18-6-1995 dismissed both the appeals with the observation that High Court has rightly held that she (Mst. Margret) could continue to occupy the suit land and enjoy its usufruct during her life time, and on her death, it would devolve upon the legal heirs of the last male tenant under section 30-A of the Colonization of Government Lands (Punjab) Act, 1912. (underlining supplied for emphasis) 6. The matter did not end here, as despite successive failure of Mst. Margret to acquire full ownership rights in the disputed land,. On 15-6-1998, the present petitioners as her legal heirs filed an execution application before the Court of Civil Judge 1st Class, Sahiwal for seeking execution of judgment dated 20-1-1969. The relevant contents and the prayer made in the said execution application read as under:--{{URDU TEXT}} ' Based on the above referred decree and prayer the mode of assistance sought from the executing Court was as under--{{URDU TEXT}}
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' Thus, it is crystal clear from the record that at no point in time, even before the executing Court, the review petitioners had ever claimed any ownership rights in the disputed land, but only restoration of possession for which, after the death of Mst. Margret in the year 1996, they had already lost their claim for the execution of such decree to retain the possession. ' This execution application was dismissed by the Court of Civil Judge Ist Class, Sahiwal, vide its order dated 16-11-1999, which reads as under:- "The present execution petition has been filed with this submission that the court decree dated 20- 1-1969 has not been operated upon and the present petition has been filed on the basis of observation of the Hon'ble supreme Court of Pakistan in an application for contempt of court in which it was said that the execution petition be filed. ' I have heard the learned counsel for the parties at length who has not only brought on record their written arguments but also opted to satisfy themselves through their oral submission. Without discussing the history of the case between the parties it is submitted that it is worth mentioning here that this execution petition is silent in this regard that what the petitioner, wants to execute through this court, neither any of the orders produced by them in connection with the case gives weight to file execution and I. Have no option, but to dismiss this petition, hence, the same is hereby dismissed." (underlining supplied for emphasis). ' The above order of the Executing court was challenged by the present petitioners before the Court of Additional District Judge, Sahiwal, through a civil revision, which was allowed and case was remanded to the executing Court with the following observations:-- "Therefore, the impugned order dated 16-11-1999 seems to have been passed in slipshod manner, without proper appreciation of evidence on record, therefore, illegal and not sustainable in the eyes of law. Therefore, I have no hesitation to accept the revision petition in hand. Consequently, the impugned order dated 16-11-1999 is hereby set aside. The case is hereby remanded to the learned trial court to reappraise the matter after framing of proper issue, in view of controversies as raised by the parties and to decide the petition a fresh, in view of evidence as adduced by the parties on the issue framed in accordance with law. The file of this court be consigned to record after completion.. The parties are directed to appear before the learned trial Court on 27-1-2001". 7. The above said order of the Revisional Court was then challenged by the present respondents in Writ Petition No,1189 of 2001, which was allowed by the learned Single Judge in the Lahore High Court, Multan Bench, vide his judgment dated 11-11-2002, inter alia, for the reasons, which read as under:- "(7) The relevant portion of the judgment of Hon'ble Supreme Court, which will govern the fate of the instant petition is as follows:-- "Mst. Margret acquired proprietary rights in the suit land before her marriage. That being so, the High Court has rightly held that she could continue to occupy the suit land and enjoy its usufruct during her life time and on her death, it would devolve upon the legal heirs of the last male tenant under section 30-A of the Colonization of Government Lands (Punjab) Act, 1912.". ' Accordingly to the above referred paragraph of the Hon'ble Supreme Court, Mst. Margret, the predecessor-in-interest of respondents was held to be entitled to retain and enjoy the possession during her life time and on her death, the property was to devolve upon the legal heirs of last male tenant under section 30-A of the Colonization of Government Land (Punjab) Act, 1912. Admittedly, Mst. Margret died on 15-10-1996. The moment Mst. Margret died, the property would revert back to the legal heirs of Aroura under section 30-A of the Colonization of Govt. Lands (Punjab) Act, 1912. Respondents being sons of Mst. Margret were thus left with no locus standi to file the disputed execution petition on 19-6-1998 after the death of Mst. Margret. (8) No doubt, ordinarily a remand order passed in a revision should not be interfered by this Court as the parties can adequately contest their. Claim before the original court. But if the very
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proceedings before the original court are filed without locus standi, this court cannot keep its eyes shut, such case has to be interfered in constitutional jurisdiction. Resultantly, instant petition is allowed, order passed by the learned Additional District Judge dated 25-1-2001, is declared to be illegal and without lawful authority. No order as to costs." 8. Against the above order, civil petition for leave to appeal No,4011-L of 2002 was preferred by the present petitioners wherein leave was granted in terms of the order dated 2-5-2003, inter alia, on the following grounds:- "(7) The import of the revisional order which was set aside by the impugned order of the Lahore High Court was that issues were to be framed and evidence was to be examined to find out as to what was to devolve, if at all, on the four sons of AROORA and what was the extent of which the successors of all the said four sons were entitled in the land in question left behind by the said AROORA. The question whether such was not a just and proper order passed by the learned Additional District Judge to deal with the inheritance of AROORA requires consideration." 9. When the appeal arising out of this petition came up for hearing before a three Member Bench of this Court, it was heard and dismissed by order dated 22-10-2009, which reads as under:- "(2) The learned Single Judge in the Lahore High Court, while passing the impugned judgment dated 11-11-2001 in W.P. No,1189 of 2001 has found the appellants, all sons of Mst. Margret daughter of Fazal, disentitled to any claim from the land measuring 300 kanals situated in Chak No,190/9-AL Tehsil and District Sahiwal, originally held by their great grandfather "Aroura" as government tenant, and thereafter their maternal grandfather Fazal, inter alia, for the following reasons: "The moment Mst. Margret died, the property would revert back to the legal heirs of Aroura under section 30-A of the Colonization of Govt. Lands (Punjab) Act, 1912. Respondents being sons of Mst. Margret were thus left with no locus standi to file the disputed execution petition on 19-6-1998 after the death of Mst. Margret." ' The above noted factual aspect of the case has not been controverted by the appellants thus there seems to be no justification for us to interfere in the impugned judgment.". ' It is against this final order that this civil review petition has been filed, in which notices were issued by the Court on 13-5-2010. 10. I have heard the arguments of both the learned ASCs, which need not be reproduced here, as already been recorded in the order proposed to be delivered in this review petition by my learned brother Sarmad Jalal Osmany, J. Some important legal points involved in this petition, which need detailed discussion, are as under:-- (a) What is the scope of this review petition filed before the apex Court in terms of Article 188 of the Constitution of Islamic Republic of Pakistan 1973? (b) What is the scope of exercise of jurisdiction by an Executing Court? Whether it can go beyond the decree, which has already attained finality up to the level of apex Court? (c) Whether this Court in its earlier judgment dated 18-6-1995 in Civil Petitions Nos.506-L, 258-L and 1-L of 1994 has not finally adjudicated the claim of the predecessor-in-interest of the petitioners in terms of its paragraph No,9, or this Court while exercising its review jurisdiction can again embark upon to examine the merits of such earlier judgment, which has attained finality more than 18 years ago and is not subject matter of the instant review in the present proceedings? 11. Taking up the first legal point (scope of review) qua facts of the present case, it will be useful to refer here a well articulated judgment on this point in the case of M. Naeem-ur-Rehman v. State Bank of Pakistan (PLD 2010 SC 949), which, inter alia, lays down as under:-- "There is no cavil to the proposition that reversal of conclusion earlier reached by this Court, after full consideration of the question is not possible in the exercise of review jurisdiction as a review cannot be granted for merely re-examination of the same arguments. It is to be noted that re- arguing a case on merits as well as additional grounds is beyond the scope of review petition.
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Besides that a mere desire of re-hearing of the matter cannot constitute sufficient ground for the grant of review. (Manzoor Hussain v. Zohra Bibi PLD 1990 SC 924, Muhammad Sarwar v. Asad Hakim 1983 SCM R 177, Jalal v. Nazir Ahmad 1980 SCM R 320, Abdul Hamid Saqfi v. Service Tribunal of Pak 1988 SCM R 1318, Ali Khan v. Shehzaman 1980 SCM R 332, Abdul Majeed v. Chief Settlement Commissioner 1980 SCM R 504; Maqbool Ahmad Tabassam v. State 1980 SCM R 907, Zulfiqar Ali Bhutto v. State PLD 1979 SC 741, Nawab Bibi v. Hamida Begum 1968 SCM R 104, Mohd Hayat v. Government of West Pakistan 1968 SCM R 107, Muhammad Najeebullah v. Government of Pakistan 1968 SCM R 768, Muhammad Ghaffar v. State 1969 SCM R 12, Ghulam Fatima v. Settlement Commissioner 1969 SCM R 5,Ghulam Fatima v. Settlement Commissioner 1969 SCM R 247, Feroz Din v. Allah Ditta 1969 SCM R 10, Dewan Jairamadass and others v. Syed Niamat Ali and others 1983 SCM R 330). It is well settled by now that "where petitioner took up all material grounds taken by him during the course of hearing of appeal and dealt with and decided in judgment under review and thus sought rehearing of arguments…
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