1992 PLP 1685 (CLC)

In brief, the circumstances giving rise to the institution of this petition under Article 98 of the abrogated Constitution arc as under:‑ That one Allah Rakhi had three daughters namely Wilayat Begum, Inayat Begum and Gulzar Begum. Before partition of the Sub‑Continent, Coiilrar Begum died in 1945. On migration to Pakistan, Allah Rakhi, the predecessor‑in‑interest of the petitioner as well as the respondents also died. Wilayat Begum and Inayat Begun, filed two separate claims claiming themselves to be heirs of Allah Rakhi while the heirs of deceased Gulzar Begun, did not file any claim. On 27th of November, 1952, Wilayat Begum the predecessor of the petitioner, was allotted land in Khata No.RL/II,1o.33 in village Godha, District Gujranwala. Inayat Begun, was also allotted land in accordance with her entitlement in village Lalyani, Tehsil and District Qasur. On 11th of December, 1952, a mutation of inheritance of Allah Rakhi way eanctioned in favour of Wilayat Begum in revenue estate of Gujranwala. 1t is stated that the said mutation was also not challenged by the heirs of the deceased Gulzar Begum. On 6th of February, 1959, the heirs of Gulzar Begum moved an application before the Collector/Deputy Settlement Commissioner praying that the mutation of inheritance of Allah Rakhi entered on 11th of December, 1952 be reviewed and they be also declared as heirs of Allah Rakhi and the land equivalent to their shares be al. allotted to them.. On 5th of January, 1967, the application was allowed and the mutation was reviewed. Consequently, the Mutation No.128 was sanctioned in favour of three ‑daughters on 21st of January, 1967 vide Annexure "A" Mutation No.129 was thus sanctioned in favour of heirs of Gulzar Begum, the respondents. Ago received by the sanction of mutations in favour of the respondents, the heirs of Gulzar Begum, the predecessor‑in‑interest of the petitioners, Wilayat Begun, took two appeals challenging both the mutations. The said appeals were allowed vide order dated 12th of December, 1967 and the order reviewing the mutations was set aside as to the original Mutations 128 and

129. The respondents filed an appeal before the Additional Commissioner (Revenue) and the said appeal was allowed vide order dated 22nd of May, 1969 and the original Mutations 1.28 and 129 were restored . The said order was challenged in revision petition filed by Wilayat Bcgum the predecessor‑in‑interest of the petitioners but the said revision was dismissed vide order dated 10th of November, 1970 by the Member, Board of Revenue. Aggrieved by the aforesaid order, this writ petition was filed and it was admitted as far back as 17th of February, 1971. This writ petition was admitted by a Division Bench of this Court on the question of the interpretation of para. 46 of the West Pakistan Rehabilitation Settlement Scheme qua its applicability to the heirs of the deceased refugee. At the very outset, the learned counsel for the petitioner Sh. Abdul Aziz, Advocate has argued that the order impugned passed by the Member, Board of Revenue dated 10th of November, 1970 is not a speaking order and, therefore, it will be appropriate if the case is remanded to the Member, Board of Revenue so that he should adjudicate upon the matter by applying his mind and, therefore, this Court shall have the benefit of the views of the Member Board of Revenue. I am not inclined to adopt the said course of action because the writ petition was admitted in the year 1971 and has come up for hearing after about 20 years and, therefore, remanding case back to the Member, Board of Revenue at this stage would add to the misery of the litigants. The controversy is to be decided in the light of the provision of paras. 46 and 46‑A of the West Pakistan Rehabilitation Settlement Scheme which governs the rule of inheritance to be followed in cases of the deceased refugees. The learned counsel for the petitioner on this question has argued that this point was never agitated or raised before the Courts below and, therefore, the same cannot be taken, at this stage. I am afraid, the contention has no force because there is no estoppel against law and admittedly the matter relates to the inheritance of the deceased refugee. Adverting to the merits of the case, Allah Rakhi died in 1947 and she was the last full owner of the land and obviously she would have been holding the same as a limited owner before Partition and under para. 46, Shariah was made applicable by a deeming clause at the time of the death of such limited owner. I am fortified in this view with the judgments delivered by the Supreme Court as well as by this Court. The cases are reported as:‑ (1) PLD 1963 SC 347 Mst. Basso v. Rehabilitation Commissioner Lands. (2) PLD 1960 Lah. 834 Umer Draz Ali v. Khurshid Ali and others. (3) PLD 1960 Lah. 205 Mirza Anwar Baig v. Mirza Ulfat Baig. (4) PLD 1962 SC 42 Syed Abdur Rashid v. Pakistan and others. In the light of these judgments it is crystal clear that the inheritance is to be governed by Paras 46 and 46‑A of the West Pakistan Rehabilitation Settlement' Scheme and under these paras, the sons and daughters of pre deceased are also entitled to inherit at the time when the inheritance opens. Accordingly, I hold that the heirs of Gulzar Begum, the respondents, being the heirs of pre‑deceased daughter are also entitled to inherit in accordance with the Shariah and hence the sanction of mutations in their favour cannot be objected as having been passed without lawful authority and jurisdiction. To the contrary, they are in accordance with law, equity and justice. In this view of the matter, I find no merits in this petition and the same is hereby dismissed. However, the parties are left to bear their own costs. A.A./W‑5/L Petition dismissed