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Petitioner: Mst. JAMEELA KHATOON And 4 Others VS Respondent: SATTAR BRIG And 2 OTHER
Court Name: Lahore High Court Judge(s): Mian Nazir Akhtar Title: Mst. JAMEELA KHATOON And 4 Others vs SATTAR BRIG And 2 OTHER Case No.: Civil Revision No.206-D of 1991 Date of Judgment:1997-01-29 Reported As: 1997 CLC 1691 Result: Revision accepted
JUDGMENT
JUDGMENT This revision petition arises out of a suit for declaration with consequential relief filed by Javed Baig. Sattar Baig, and Hamid Baig, respondents Nos.1 to 3 through their attorney Dr. Karim-ud-Din, on 12- 4-1980 in the Court of Civil Judge, Jhang. The plaintiffs claimed to be owners in possession of the disputed lend measuring 2143 Kanals and 9 Marlas, (fully detailed in the heading of the plaint) situated in Mauza Kakki Nau Chak Soem, Telisil Shorkot, District Jhang, in their capacity as legal heirs of Mst. Badar-un--Nisa deceased who (as claimed by the petitioners) was martyred in the year, 1947 at the time of partition. According to respondents Nos. l to 3 she Taeco-4 away in -the year 1952/53 in Pakistani. The plaintiffs also challenged the order dated 13-6-1970 passed by the Settlement Commissioner (Lands), mutation Nos.1106 and 1115 attested on 10-12-1971, mutation No.976 attested on 30-10-1969 and mutation No.1133 attested on 30-6-1973 and decree dated 3-12- 1981 in favour of Salamat A.I respondent No.11 and decree dated 14-12-1982 in favour of Wali Muhammad respondent No. 12 on the ground of fraud and mis-representation etc. The suit was resisted by the defendants including Mst. Jameela Khatoon deceased, predecessor-in-interest of the present petitioners, who was cited ' as defendant No.3 in the plaint. The pleadings of the parties gave rise to the following issues:---- (1) Whether the plaintiffs are owners in possession of the suit land? OPP (2) Whether the impugned order dated 13-6-1970 passed by the Settlement Commissioner (Lands) and on the basis thereof mutation Nos. 1106 and 1115, dated 10-12-1971, mutation No.976 dated 30- 10-1976, mutation. No.1133, dated 30-6-1973, the decree of the civil Court dated 3-12-1981 in favour of defendant No. 11 and decree of the Civil Court dated 14-12-1982 in favour of defendant No. 12 are illegal, based on fraud, void and are ineffective and inoperative on the rights of theplaintiffs? OPP
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(3) Whether this Court lacks jurisdiction to take cognizance of the present suit? OPD (4) Whether the suit of the plaintiffs is time-barred? OPD (5) Whether Mst. Jamila Khatoon defendant No.3, has matured her title due to adverse possession for a period extending over 12 years? OPD-3. (6) Whether the defendant No.3 is entitled to special costs under section 35-A of the C.P.C.? OPD-3. (7) Whether the suit of the plaintiffs is bad for joinder of unnecessary parties? OPD (8) Whether the suit has not been, properly valued for the purposes of court-- fee and jurisdiction? If not, what is the correct valuation? OPD (9) Whether the suit is not maintainable in its present form? OPD (10) Whether the plaintiffs are estopped to file this suit because of their words and conduct? OPD (11) Whether Mst. Ummatul Mobeen, defendant No.4 has matured her title due to adverse possession for a period extending over 12 years? OPD-4 (12) Whether the defendants Nos.5, 10 and 12 are entitled to special costs under section 35-A of the C.P.C.? OPD (13) Whether the suit of the plaintiffs cannot proceed in view of preliminary objections Nos.8 and 10 of the written statements filed by defendants Nos. 3, 5, 10 and 12? OPD (14) Whether the sale in favour of defendant No. 11 by means of a registered sale deed dated 17-10- 1982, is protected under section 41 of the Transfer of Property Act? OPD-11 (15) Whether the Pedigree-table, as contained in para. No.2 of the plaint, is correct? OPP (16) Relief. The plaintiffs/respondents Nos. l to 3 produced two witnesses namely Abdul Hameed Khan P.W.1 and Dr. Karim-ud-Din P.W.2 (General attorney of the plaintiffs). They produced documents Exhs.P.I to P.21 in support of their pleas. The present petitioners produced Muhammad Yasin Baig D.W.1, Mirza Aslam Baig D.W.2 and documents EXhS.D.I to D.29 in support of their case. After perusing the material on the record, the trial Court dismissed the suit vide judgment and decree dated 2-4- 1990. The issue-wise findings of the trial Court are as follows:----- Issues Nos. 1, 2 and 15Jointly decided against the plaintiffs/respondents 1 to 3. Issue No.3,-----Answered in negative. Issue No.4-----,In favour of the plaintiffs; suit held to be within time. Issue No.5-----, Against the defendants, Mst. Jameela Khatoon had not become owner due to adverse possession. Issues Nos.6 and 12-----The plaintiff was burdened with special costs of Rs.5,000 to be paid to defendants Nos.3, 5, 10 and 12. Issues Nos.7 to 9, 11,In the negative. 13 and 14 ----- Issue No. 10 -----Plea of estoppal not proved. The plaintiffs/respondents 1 to 3 challenged the judgment and decree of the trial Court by way of an appeal before the learned District Judge, Jhang which was entrusted to the learned Additional District Judge. The appellate Court reversed the findings of the trial Court on Issues Nos. l, 2 and 15 and held that Mst. Jameela Khatoon predecessor-in-interest of the petitioners and Mst. Naseera Begum had no relations with Samad Baig and Mst. Badar-un-Nisa deceased and were not entitled to have any share in the inheritance left by them. The findings of Issues Nos.6 and 12 were also reversed. The appeal was accepted and the suit was decreed in favour of respondents Nos. l to 3
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with costs throughout vide judgment and decree dated 22-1-1991. The present revision petition was filed in this Court on 11-2-1991. 2. It may be mentioned in the very outset that the present revision petition was contested only by respondents Nos. l to 3. The legal representatives of Mst. Shahzadi, deceased, respondent No.6 did not appear despite service and were ordered to be proceeded against ex parte vide order dated 17-2-1993. No one appeared on behalf of the Province of Punjab, respondent No.4, the Settlement Commissioner (Lands), Sargodha respondent No.5 and respondents Nos.7 to 12 despite notice. They are also proceeded against ex parte. It may be mentioned that respondents Nos.7 to 10 were deleted in the trial Court from the array of defendants vide order dated 10-12-1986. Hence, there was no need to implead them as respondents in the present revision petition. 3. Some other relevant facts having a bearing on the controversies involved in the case are that after the demise of Mst. Radar-un-Nisa, mutation of inheritance No.30 (Exh.P.I) was sanctioned on 13-5-1953 by the Assistant Rehabilitation Commissioner (Land) giving 1/2 share to Samad Baig son-in-law and 1 /2 to Mst. Naseera Begum daughter of the deceased. The correctness of the said mutation was challenged by Mst. Jameela Khatoon deceased predecessor-in-interest of the petitioners by way of an appeal before the Deputy Settlement Commissioner (Land) who dismissed it vide order dated 25-11-1969. She filed a revision petition before the Settlement Commissioner, who accepted it vide order dated 13-6-1970 (Exh.P.2). He held that Mst. Jameela Khatoon being daughter of Mst. Radar-un-Nisa, deceased was entitled to have her share in the inheritance left by the deceased and remanded the case to the Assistant Rehabilitation Commissioner (Land) for a fresh decision. In post remand proceedings the Assistant Rehabilitation Commissioner (Land) heard the parties before him and entered two mutations bearing Nos.1106 and 1115 (Exhs.P.5 and P.6). The first one related to the proprietary rights of Mst. Badar-un-Nisa, deceased and the second one to her mortgagee rights. The Assistant Rehabilitation Commissioner (Land). Allowed 2/3rd share to Mst. Naseera Begum and Mst. Jameela Khatoon and the remaining 1/3rd to Samad Baig as a residuary of Younus Baig (son of Mst. Radar-un-Nisa deceased). Samad Baig died on 25-6-1969 leaving behind Mst. Naseera Begum widow and her two sisters namely Mst. Ummatul Mobeea and Mst. Jameela Khatoon. Accordingly mutation of inheritance No 976 was sanctioned in their names on 30-10-1969 (Exh.P.3). Mst. Naseera Begum was given 1/4th share as a widow and the remaining 3/4th share was given to the two sisters in equal shares. Another mutation of inheritance No. 1133 (EXjl.P.7) in respect of inheritance of Samad Baig deceased was sanctioned on 30-6-1973 in favour of Mst. Naseera Begum widow having 1/4th share and Mst. Ummat-ul-Mobeen and Mst. Jameela Khatoon having 3/4th share. 4. Mst. Badar-un-Nisa deceased was first married to Yousuf Baig and out of the wedlock one son namely Younus Baig and a daughter Mst. Naseera Begum were born. Mst. Naseera Begum was married to Samad Baig son of Muhammad Baig, elder brother of Yousuf Baig deceased. After the death of Yousuf Baig, Mst. Badar-un-Nisa contracted marriage with Muhammad Baig. Out of the second wedlock, Mst. Jameela Khatoon predecessor-in-interest of the petitioners was born. (This fact is disputed by respondents Nos. l to 3) Muhammad Baig second husband of Mst. Badar-un- Nisa was earlier married to Mst. Maryam Bibi from whom he had a son named Samad Baig and a daughter Mst. Ummatul Mobeen. The father of Muhammad Baig and Yousuf Baig was Khairat Baig deceased. Respondent Nos. l to. 3 who are sons of Shahbaz Baig claimed that their father Shahbaz Baig was real brother of Khairat Baig, hence they were entitled to inherit the entire property left by Mst. Radar-un-Nisa and Samad Baig, deceased. On the other, hand the petitioners assert that Shahbaz Baig and Khairat Baig had no relation whatsoever because name of father of Khairat Baig was Ahmad Baig while Shahbaz Baig was son of Mughal Baig. The second major bone of contention between the parties is that according to the petitioners Mst. Badar-un-Nisa deceased had two daughters namely Mst. Naseera Begum and Mst. Jameela Khatoon but according to
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respondents Nos. l to 3 Mst. Badar-un-Nisa deceased had only one daughter named Mst. Naseera Begum. While dealing with Issue No.2 the trial Court held that Shahbaz Baig and Khairat Baig were not real brothers, hence mutations of inheritance of Mst. Radar-un-Nisa and Samad Baig were rightly entered and sanctioned; that Mst. Badar-un-Nisa deceased had two daughters namely Mst. Naseera Begum and Mst. Jameela Khatoon; the former from Yousaf Baig and the latter from Muhammad Baig. The appellate Court reversed the findings of the trial Court and held that Khairat Baig and Shahbaz Baig were real brothers and that Mst. Jameela Khatoon and Mst. Ummatul Mobeen were not entitled to inherit either from Samad Baig or Mst. Badar-un-Nisa deceased. 5. Learned' counsel for the petitioners contends that mutations of inheritance sanctioned by the Settlement Authorities on 10-12-1971, 30-6-1973 and 30-10-1969 were not open to challenge in the civil Court as held in the cases of Mst. Zainab v. Mst. Raji and others (PLD 1960 SC (Pak.) 229), Ahmad Din v. Muhammad Shaft and others (PLD 1971 SC 762) and Ghulam Muhammad v. Muhammad Din and others (1989 M LD 488); that decrees dated 3-12-1981 and 14-12-1982 could not be challenged before the civil Court in view of the bar created under section 12(2) of the C.P.C.; that Khairat Baig was son of Ahmad Baig while Shahbaz Baig was son of Mughal Baig, therefore, the appellate Court wrongly held that they were real brothers; that both Khairat Baig and Shahbaz Baig belonged to two different families, therefore, descendants of Shahbaz Baig could not lay any claim to inheritance left by Mst. Badar-un-Nisa and Samad Baig descendants of Khairat Baig deceased; that the mutation of inheritance of Mst. Badar-un-Nisa or Samad Baig deceased could not be challenged by respondents 1 'to 3, descendants of Shahbaz Baig, who had nothing to do with the inheritance of the two deceased persons; that even if the respondents are held to be collaterals of Younus Baig, deceased, the last male holder of the disputed property, they could not inherit because after his death' the property would devolve on the following heirs:----- Mst. Badar-un-Nisa1/6th share Mst. Nasira Begum, real sister:1/2 share Mst. Jameela Khatoon, uterine sister;1 /6th share Samad Baig, first cousin ofWill get the residue being nearer Younus Baig:as compared to the respondents who would stand excluded. As regards the inheritance left by Ndst. Badar-un-Nisa, deceased, he submits that her daughters namely Mst. Nasecra Begum and Mst. Jameela Khatoon would inherit 2/3rd property as sharers and would get the remaining 1/3rd on the application of doctrine of radd. He submits that Mst. Badar-un-Nisa was not survived by any collateral, who could lay claim to the remaining 1/3rd property. Hence the same would return to the two daughters namely Mst. Naseera Begum and Mst. Jameela Khatoon. As regards that inheritance of Samad Baig he submits that 1/4th would go to his widow Mst. Naseera Begum and the remaining 3/4th to his real sister Mst. Ummatul Mobeen and Mst. Jameela Khatoon, consaguine sister. He next submits that the suit filed by the respondents was barred by time as .Mutation of inheritance of Mst. Badar-un--Nisa, deceased was sanctioned on 10-12-1971 while that of Samad Baig, deceased on 30-6-1973 and the suit for declaration was filed on 10-4-1980 which was clearly barred by time. 6. On the other hand Ch. Khurshid Ahmad, learned counsel for respondents 1 to 3 contends that there are two main points of controversy between the parties, the first whether Khairat Baig was son of Mughal Baig or Ahmad Baig and the second whether Mst. Jameela Khatoon was daughter of Muhammad Baig and sister of Mst. Naseera Begum and Mst. Ummatul Mobeen. As regards the first point he submits that the appellate Court has rightly held Khairat Baig to be a son of Mughal Baig and hence real brother of Shahbaz Baig, predecessor-in-interest of respondents 1 to 3. On the second point the learned counsel submits that the appellate Court has duly taken into consideration the relevant material and correctly held that Mst. Jameela Khatoon was not
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daughter of Muhammad Baig of sister of Mst. Naseera Begum and Mst. Ummatul Mobeen. He adds that on the basis of the above two findings the appellate Court has rightly held the plaintiffs/respondents 1 to 3 to be entitled to the inheritance left by Mst. Naseera Begum and Samad Baig. He explained that Mst. Badar-un---Nisa deceased had initially contracted marriage with Yousaf Baig and out of the said wed-lock one daughter namely Mst. Naseera Begum and one son Younas Baig were born After the death of Yousaf Baig she contracted marriage with Muhammad Baig, real brother of Yousaf Baig, deceased but no child was born out of the second marriage. He adds that Mst. Naseera Begum was married to Samad Baig, who died without leaving behind any issue. He submits that the appellate Court has recorded findings of fact on the above referred points of dispute which do not call for interference by this Court in exercise of revisional jurisdiction. He further submits that respondents Nos. l to 3 were not impleaded as parties before the learned Settlement Commissioner (Lands) who passed order dated 13-6-1970 in their absence; that the disputed mutations of inheritance were sanctioned in their absence and that they learnt about the same about six months before institution of the suit and filed the suit on 12-4-1980 well within the period of limitation. The learned counsel took pains in preparing a useful chart of all the relevant mutations and placed it on the record. 7. There is weight in the argument raised by the petitioners' learned counsel that the suit to the extent of challenge to decrees dated 3-12-1981 and 14-12-1982 passed by the civil Court in favour of Salamat A.I, respondent No. 11 and Wali Muhammad respondent No. 12 was barred by virtue of the provisions of Section 12(2) of the C.P.C. The suits in which the above-referred two decrees were passed were instituted on 3-11-1981 and 17-12-1982 respectively. Prior to that, section 12 of the C`.P.C was amended through Ordinance X of 1980 published in official gazette on 26-3-1980. Through the said Ordinance subsection (2) was brought on the statute book which provided that a person challenging the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction had to seek his remedy by making an application to the Court which had passed the final judgment, decree or order and not by a separate suit. Therefore, the suit challenging validity of decrees dated 3-12-1981 and 14-12-1982 on the grounds of fraud and mis-- representation was barred by the express provision of section 12(2) of the C.P.C. The appellate Court did not advert to this aspect of the matter and illegally decreed the suit as a whole. 8. The various mutations challenged in the civil suit are divisible into two categories one relating to the claim made by legal heirs of Mst. Badar-un-Nisa, deceased who had died in India (as admitted by Abdul Hamid P.W. 1) and the other in respect of right holders who had died in Pakistan. As regards the second category of mutations, there is no difficulty in holding that validity of the same could be challenged before the civil Courts in accordance with the law. However, difficulty arises to respect of mutations attested by the Rehabilitation Authorities on the basis of a claim made by a person for allotment of land in their capacity as legal heirs of right-holders who had died in India. The object of the Re-settlement Scheme framed under the provisions of the Pakistan Rehabilitation Ordinance (XIX of 1948) was to rehabilitate maximum number of the displaced persons. The provisions of paragraphs 46 and 46-A of the Scheme were not really intended to determine the rights of heirs of the deceased right-- holders in respect of the properties left by them in India. The mutations entered by the Rehabilitation Authorities were simply meant to determine as to who shall be allotted land in Pakistan in lieu of the property abandoned by the deceased right holders. This exercise was undertaken on claims made by displaced persons. If a person did not come forward to lodge a claim before the Rehabilitation Authorities, then he could not make a grievance that the said authorities had allotted land to any other heir of the deceased. In the present case, there is no documentary proof on the record to show as to who had lodged claim before the Rehabilitation Authorities. However, Muhammad Yasin Baig, while appearing-as D.W.1 had stated that the claim was lodged by Samad Khan whereupon land was allotted in the name of Mst.
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Badar-un-Nisa. The record contains mutation No.30 dated 13-5-1953 (Exh. P1) which shows that land was allotted in the name of Mst. Badar-un-Nisa mother of Younus Baig in her capacity as displaced person from Akbar Pur Barota Tehsil Sont Pat District Rohtak and that she was survived by two heirs i.e,. Samad Baig son of Muhammad Baig and Mst. Naseera Begum daughter of Mst. Badar-un-Nisa. The mutation was entered on 17-7-1952 and formally sanctioned on 13-5-1953 by the Assistant Commissioner Grade-II, Jhang. It was challenged by Mst. Jameela Khatoon (predecessor-in-interest of the petitioners) by way of an appeal which was dismissed by the D.R.C. (Lands) vide order dated 25-11-1969. She filed a revision petition which was accepted by the Settlement Commissioner (Lands) vide order dated 13-6-1970. He held that Mst. Jameela Khatoon being daughter of Mst. Badar-un-Nisa deceased was also an heir and hence entitled to allotment of land. He remanded the case to the A.R.C (Lands) for a fresh decision who heard the parties before him and sanctioned mutations Nos. 1106 and 1115 on 10-12-1971. It may be mentioned that so far as respondents 1 to 3 are concerned they did not independently lodge any claim before the Rehabilitation Authorities for allotment of sand in lieu of the propertv abandoned by Mst. Badar- un-Nisa in India. Moreover, after the demise of Samad Raig they did not make any effort to have mutation of inheritance sanctioned in their favour. The Rehabilitation Authorities could not possibly know that the petitionerq were also claiming share in the properties left by Mst. Badar-un-Nisa and Samad Baig, deceased. As mentioned above, the correctness of mutation No.30 was challenged only by Mst. Jameela Khatoon, predecessor-in-interest of the petitioners and on acceptance of her revision petition the matter was remitted to the A.R.C_ (Lands). Therefore, he rightly sanctioned mutation No 1106 and Ills on 10-12-1971 after hearing the parties before him. The said mutations were sanctioned by the A.R.C. (Lands) under the provisions of paragraph No ,46 of the Re- Settlement Scheme and were immune from attack in the Civil Court. The above view finds support from the judgments in the cases of "Mst. Zainab v.Mst. Raji and others" (PLD 1960 SC (Pak.) 229). "Umar Draz A.I v. Khurshid A.I and others" (PLD 1960 (W.P.) Lahore 834), "Ahmad Din v. Muhammad Shafi and others" (PLD 1971 SC 762), "Mst. Ghulam Fatima v. Muhammad Hussain and 5 others" (PLD 1976 SC 729) and "Ghulam Muhammad v. Muhammad Din and others" (1989 M LD 488). In the case of Mst. Zainab, it was held that a declaratory suit to establish title to evacuee lands abandoned in India was not' competent; that section 18 of Act XLII of 1956 expressly ousted the jurisdiction of the Civil Court to question an order passed by a Rehabilitation Authority hence a Civil Court was not competent to adjudicate on the rights of or dispossess a person to whom any immovable property had been allotted or leased by a Rehabilitation. Authority and that object of the Rehabilitation Laws was to settle refugees on lands and give them certain rights in an expeditious manner. In the case of Umar Draz A.I, it was held that paragraphs Nos.46 and 46-A of the Scheme were not meant to determine the entitlement of heirs to inherit the estates left by the deceased right-holders in India because the lands were situated in India over -which the Rehabilitation Authorities in Pakistan had no jurisdiction. The relevant para. From the judgment reads as under:-- "It was, therefore, not intended to determine the rights of the heirs of deceased right holders in the estates abandoned by. Them in India while deciding the impugned mutations. These mutations are in fact a measure to determine who shall be allotted land in Pakistan in lieu of the land abandoned by deceased right holders." It was also held-that the Rehabilitation Authorities had exclusive jurisdiction in the matter for the purposes of Rehabilitating as large a number of refugees as was possible. In Ahmad Din's case, it was held that the Rehabilitation Authorities had exclusive jurisdiction to attest a mutation under paras. 46 and 67 of the Rehabilitation Settlement Scheme and that a civil suit filed by a person who claimed to be sole heir of the deceased right-holder was not competent. In Mst. Ghulam Fatima's case, it was held that there was no provision in the Displaced Persons (Land Settlement) Act, 1958 or the Settlement Scheme for determining the question of succession to the estate of confirmed
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allottees (who passed away in Pakistan), hence a civil suit to establish right or title in the suit estate filed by an heir was not barred. In Ghulam Muhammad's case reliance was placed on the dictum of the Hon'ble Supreme Court laid down in Ahmad Din's case and it was held that civil suit to challenge mutations attested by the Rehabilitation Authorities in matters of inheritance of persons who had died in India was not competent. However, after the demise of the confirmed allottees iii Pakistan a person claiming to be an heir could agitate the matter before a Civil Court to establish his title in the property. Therefore, validity of mutation No.30 dated 13-3-1953 sanctioned by the Assistant Rehabilitation Commissioner and order dated 13-6-1970 passed by the Settlement Commissioner (Lands) could not be challenged before the Civil Court. Since mutations Nos. 1106 and 1115 were sanctioned in pursuance,of order dated 13-6-1970 passed by the Settlement Commissioner (Lands), the same were also immune from attack in the Civil Court. However, after the demise of Samad Baig, Mst. Naseera Begum and Mst. Jameela Khatoon any person claiming to be their legitimate heir, if unlawfully left out from the inheritance of the said deceased persons, could competently agitate the matter before the Civil Court. 9. The plaintiffs/respondents Nos. l to 3 had no knowledge about the mutation proceedings before;the Rehabilitation Authorities and could not be non --suited on the grounds of limitation alone. Dr. Karim-ud-Ding general attorney for respondents Nos. l to 3 had appeared as P. W.2 in the trial Court and stated E that the two mutations of inheritance of Mst. Badar-un-Nisa and Samad Baig were sanctioned without any intimation to respondents…
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