1983 PLP 144 (SCMR)

Date of hearing : 15th June, 1982. ASLAM RIAZ HUSSAIN, J.‑This petition is directed against the order of the High Court dated 12‑1‑1982, accepting the writ petition of Mst. Hidayat Bibi, respondent No. 1,

2. The facts giving rise to this petition briefly are that Jhandu right- holder, died during the disturbances of 1947. His son Nazar Hussain (respondent No. 3 in the writ petition) filed a claim of land abandoned by his father in India which was duly verified and land was allotted against it. Mutation of inheritance was sanctioned on 28‑2‑1966 in favour of two sons of Jhandu namely, Nazar Hussain (husband of Mst. Shabbiran) and Muhammad‑; Hussain (father of Muhammad Ashfaq petitioner) as well as Mst. Hamidunnisa, a daughter of Jhandu (deceased). Hidayat Bibi (respondent No. 1) was, however, left. On coming to know of it in 1972 she filed an appeal on 6‑4‑1972, which was treated as a revision and dismissed by the Additional Commissioner (Revenue) Settlement Commissioner, vide order dated 16‑6‑1976, only on the ground that it was barred by limitation. Merits of the case were not taken into consideration. Mst. Hidayat Bibi filed a writ petition, which was accepted by the High Court vide the impugned judgment, wherein, relying on two judgments mentioned in paragraph 4 it held that the question of limitation was irrelevant in the case of mutation. The High Court also gave a direction that the mutation of inheritance dated 28‑2‑1959 should be revised and the name of Mst. Hidayat Bibi should be included therein as a daughter of Jhandu. Feeling aggrieved Muhammad Ashfaq has filed the present petition for Leave to Appeal.

3. The learned counsel for the petitioner conceded that the bar of limitation was not relevant in this case. He, however, submitted that the learned Judge in Chamber could have only held that the application had been wrongly dismissed by the Additional Commissioner (Revenue) Settlement Commissioner, as barred by time and could not have gone on to direct revision of the mutation and incorporation of the name of Mst. Hidayat Bibi therein as one of the daughters of Jhandu, specially so when the petitioner had filed a written statement controverting Hidayat Bibi's assertions, though he could not appear before the Court on the date of hearing.

4. On going through tae impugned judgment we notice that although counsel for Mst. Shabbiran appears to have conceded that Alst. Hidayat Bibi was the second daughter of Jhandu which was supported by an affidavit filed by Mst. Shabbiran and also that no one had appeared on behalf of Muhammad Ashfaq petitioner (who was respondent No. 4 before the High Court), yet we feel that there is force in the contention that in view of A the fact that the assertion of Mst. Hidayat Bibi that she was daughter Jhandu had been controverted by Muhammad Ashfaq and the matter required factual inquiry and recording of evidence, the proper course for the learned Judge in Chamber would have been to remand the case to the Additional Commissioner (Revenue) Settlement Commissioner for a fresh decision on merits. Leave is, therefore, granted to consider the above‑noted contention. Security in the sum of Rs. 2,

500. The operation of the impugned order of the High Court is suspended. The appeal shall, however, be fixed for hearing in November, 1982. Service on the respondents should be completed by that time. Leave granted,