P L D 1966 (W (PLP)

Imam Din Bholu | | | |

Mohd. Shaft alias | | | Leelu | | | | | Zaka‑ud‑Din Aziz‑ud‑Din. Shahab‑ud‑Din. | | Mohd. Rafique (Present Petitioner)

2. Muhammad Shafi alias Leelu held some land in District Hissar (East Punjab, India). He died during the disturbances and a question arose of sanctioning his inheritance for the purposes of giving allotment to his heirs. In the earlier round of litigation, the mutation was sanctioned in accordance with Shariat in the names of his son Muhammad Rafiq (the present petitioner), his sister Mst. Sharifan and his widow Mst. Bashiri. The case came up in the form of W. P. N. 181/R of 1961 in this Court, when a learned Single Judge set aside that order on mutation and issued a direction in the following words:‑ "Respondent No. 1 has treated the ease as one governed either by the Muslim Law or the Customary Rule of Law. The land devolved is Crown land, and under the Crown Grants Act, 1895, the devolution is t o be governed by the terms of the grant. Chapter III of the Gazeteer of the Hissar District Page 161 governs the present grant which enjoins that after the death of the third grantee the grant will revert to the original grantee." "The third grantee having demised the case is to be decided on that footing." "I allow the petition and certify the order, dated 9‑1‑1961, as being patently wrong and in excess of jurisdiction of respondent No. 1. and issue a writ of certiorari to that effect and direct the case be re‑opened and decided according to law." After this the case was taken up by Khan Saeed‑ud‑Din Khan, Additional S. and R. C. Multan and Bahawalpur Divisions, who, acting on the directions issued by this Court, has mutated the land in accordance with the provision of Chapter III of the Gazeteer of Hissar District and given following shares to the following persons: Muhammad Rafiq 1/2 Shahab‑ud‑Din 1/6 Zaka‑ud‑Din 1/6 and Aziz‑ud‑Din 1/6

3. Muhammad Rafiq (son of Muhammad Shafi alias Leelu his filed the present writ petition wherein he again challenged the manner in which the mutation in this case has been ordered by Khan Saeed‑ud‑Din Khan, Additional S. & R. C. The learned counsel for the petitioner has contended that in the revenue record, received from India, the land stood in the name of Muhammad Shafi alias Leelu and for the purposes of mutation he should have been considered as prepositus and not Jhandey Khan. For this purpose, he relies upon Paragraph 46 of the West Pakistan Rehabilitation Settlement Scheme. According to the learned counsel, the land which is to be granted in this part of the Country is in the form of a grant and mutation should be sanctioned in accordance with the provisions of Paragraph 46 and not in accordance with the law which may have been prevalent in India. The learned counsel in this behalf also refers to a Full Bench decision of this Court in Umar Draz Ali v. Khurshid Ali and others (P L D 1960 Lah. 834) which had been referred to even in the earlier order of the Additional S. & R. C. dated 9‑1‑1961, which was quashed by this Court. This Full Bench decision was approved in Mst. Basso v. The Rehabilitation Commissioner and another (P L D 1963 S C 347). In the light of these two authorities, the direction issued by the learned Single Judge in W. P. No. 181/R of 1961, I say so with great respect, is clearly erroneous, because cases of this type of inheritance are to be regulated by Para. 46 of the Scheme and not the law of India as` contained in the Gazeteer of Hissar District. But my difficulty is that I cannot go into this matter over again, because there exists in my way an order of this Court in W. P. No. 181/R of 1961 passed by Bashir Ahmad J., who has issued a specific direction that the mutation should be sanctioned in accordance with the rule of devolution laid down in the Gazeteer of Hissar District. Learned counsel for the petitioner states that the decision of this Court in the aforesaid writ petition directed as to which law should be applied and a decision of this nature which directs that a case should be decided by a particular law is never res judicata. His contention is that erroneous decision on a point of law is not res judicata. Reference can be made to Taliamand and another v. Muhammad Din and others (A I R 1930 Lah. 907), Muhammad Umar Draz Ali Khan v. Pirji Abdul Rashid (A I R 1933 Lah. 606), Mst. Kanta Devi v. Sm. Kalawati and others (A I R 1946 Lah. 419) and Jharuram Das Monda v. Majar Muhammad Sheikh Fakir and others (A I R 1944 Cal. 13). That may be so but here the question is not of examining as to whether the previous decision is res judicata or not, but it is a simple one, namely, that a direction of this Court commanded that the mutation should be sanctioned in accordance with the law laid down in the Gazeteer of Hissar District. So long as that order stands, it has to be given effect to and it is not within my jurisdiction to by‑pass that order. The Additional S. & R. C. has decided the case afresh by means of his order, dated 18‑4‑1962, (Annexure "C"), strictly in accordance with the directions issued by this Court. The present petitioner never filed any appeal against the decision of this Court in the earlier writ petition nor any review. The said decision, therefore, has become final and operates in the field. The mutation having been sanctioned in accordance with the directions of this Court, no mistake can be found in that by me at this stage and in the present proceedings. It was held in Lal Din v. Mst. Sardar Bibi and another (P L D 1959 Lah. 616) by Kaikaus J., that:‑ "These judgments, on a perusal of them, do not even support the proposition that learned counsel is putting forward, but I am aware of some judgments laying down that a decision on a pure question of law is not res judicata. I am quite prepared to accept and I would lay down myself that on a pure question of law, apart from aright which was in dispute in a particular suit, there can be no res judicata, but it does not follow that rights in respect of particular property which is in dispute in a particular case can be reagitated on the ground that the decision proceeds on a wrong view of law. Suppose a suit is filed for inheritance on the death of a particular person between the sister and a distant collateral and it is held that the sister is entitled to the whole of the property in accordance with the Muslim Law even in the presence of the collateral. If the question of inheritance arises again in respect of the death of another person, the pure question of law as to whether the sister is entitled to succeed to the whole property in the presence of a collateral, will not be res judicata, but this is something entirely different from saying that even in respect of the property which was the subject‑matter of the first litigation a question can ever be raised that the sister was entitled not to the whole of it but to a part. So far as a particular cause of action is concerned, reagitation of the rights in respect of it is closed for ever as between the parties by the decision of the suit which is based on that cause of action." Respectfully following the above law, I hold that even though erroneous, the previous decision inter‑parties as it was is binding on the contestants in the present round of litigation.

4. The second point urged by the learned counsel for the petitioner was that since Muhammad Shafi alias Leelu had been holding the land in India for almost a decade of over twenty‑five years, he should be presumed to have prescribed against any other rival claimant, and as such, should be, considered to be the sole owner of the land which was held by him and from this point of view, he should be considered the prepositus and the land should not devolve from Jhandey Khan in accordance with the provisions contained in the Gazeteer of Hissar District, as directed by this Court in the previous writ petition. There is no force in this contention, firstly, because after holding that the direction in the previous writ petition operates the present plea cannot be taken note of. Secondly, even on merits, there is nothing on the record in support of this plea. Muhammad Shafi was holding the land in his own right under the relevant law, and in his presence no other persons had any right. Obviously, Muhammad Shafi could not prescribe against his own self.

5. In view of what has been said above, there is no force in this writ petition which is hereby dismissed. There shall be no order as to costs. K. B. A. Petition dismissed.