1997 SCMR 1081 (PLP)

S. Almas Haider Kazmi, Advocate Supreme Court and S. Abul Asim Jafri, Advocate‑on‑Record for Respondents. Date of hearing: 24th October, 1995. ZIA MAHMOOD MIRZA, J.‑‑Through this petition, the petitioners seek leave to appeal against the judgment of the Lahore High Court dated 18‑5 1994 whereby the regular second appeal filed by the plaintiffs/respondents has been accepted and the judgments and decrees of the Courts below have been set aside and th‑‑ suit of the respondents decreed. 2. Facts necessary for the disposal of this petition, briefly, are that one Abhool son of Mahi owned 220 Kanals 11 Marlas of land in Chak No.244‑R.B. Tehsil and District Faisalabad. He is stated to have died in 1928 when he was still unmarried. On his death, his entire property had devolved sin his mother Mst. Sammon under custom. On 10‑7‑1928 Mst. Sammon gifted half of the landed property to her two daughters Mst. Nooran and Mst. Sallan. The respondents as reversioners of Abhool brought a suit for a declaration that the gift arose by Mst. Sammon in favour of her daughters was ineffective/inoperative qua their reversionary rights. The suit was dismissed by the trial Court on 26‑2‑1935. In the appeal brought in the High Court (C.A.No.1046/1935), the parties: entered into a compromise whereby they agreed that the land, the subject‑matter of the gift, may be retained by the donees as owners and in lieu thereof, the respondents/reversioners would be entitled to succeed to one‑half of the remaining land of Abhool. Appeal of the reversioners was accordingly disposed of in terms of the compromise order dated 25‑11‑1935 (Exh P. 1) 3. On the death of Mst. Sammon, the respondents pressed their claim based on the aforesaid compromise order. Assistant Commissioner II Grade did not accept their claim and sanctioned the mutation giving 2/3rd share to the present petitioners as daughters of Abhool and in addition thereto, they were also given 1/6th share of Mst. Sammon, their deceased mother and as such 5/6th share in the land of Abhool was transferred to them and the respondents were held entitled to remaining 1/6th share as residuaries according to the Shariat Law. Respondents' appeal was dismissed by the Collector and they also failed before the Additional Commissioner and the Board of Revenue, where their revision was dismissed on 26‑3‑1960. 4. Respondents then brought a civil suit seeking a declaration that they were owners of 1/2 share of land measuring 108 Kanals, 17 Marlas of Square No. l/18‑killa No. 11/2, 12/2, 13/2, 14/2, 15/2 and 16 to 25 situate in Chak No. 244‑R.B. The suit of course was based on the compromise embodied in the order of the High Court dated 25‑11‑1935. In the alternative; the respondents also prayed that they were entitled to 5/24th share and the orders of the Revenue Authorities were illegal and inoperative qua their rights. This suit was dismissed by the trial Court vide judgment dated 27‑4‑1971. The appeal, too, was dismissed by the Additional District Judge on 2‑12‑1971. Respondents, however, succeeded in second appeal which, as stated above, has been accepted . by the High Court vide the impugned judgment. 5. We have heard the learned counsel‑for the petitioners as also the learned counsel appearing for the caveators. The former has contended that the learned Judge in the High Court has not kept in view and examined the effect of the provisions of section 2‑A of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, added by amending Ordinance XIII of 1983. According to the learned counsel, by virtue of the provisions of section 2‑A of the aforesaid Act, Abhool son of Mahi, who had admittedly acquired the land under custom before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, shall be deemed to have become, upon such acquisition, an absolute owner of such land as if such land had devolved oil him under the Muslim Personal Law (Shariat) Act. He has further submitted that under clause (b) of section 2‑A of the Act, which provides: "(b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery of possession of agricultural land on such basis shall be void, in executable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act;" the compromise decree on‑ the basis of which the plaintiffs/respondents were claiming the suit land was void and of no legal effect to the extent that it was contrary to Shariat. Further relying on clause (c) of section 2‑A, the learned counsel sought to contend that the respondents' appeal in the High Court stood abated as the compromise order/decree in question was never given effect to nor was possession of the suit land ever delivered to the plaintiffs there-under. Reliance for these submissions was placed on Abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 SC 407), Amir Din and 5 others v. Bahadur Hussain (PLD 1990 SC 816) and Khuda Bakhsh through his Legal Heirs v. Mst. Niaz Bibi and another (PLD 1994 SC 298). 6. Learned counsel for the caveators has not been able to show that the compromise order/decree passed by the High Court on 25‑11‑1935 was ever implemented or that his clients ever got possession on the basis thereof. In the circumstances, we are inclined to grant leave in this case. Leave to appeal is accordingly granted to examine the effect of section 2‑A of Act V of 1962 on the facts of the instant case. 7. The status quo order passed on 5‑7‑1974 shall continue pending the final decision of the appeal. A.A./A‑1442/S Leave granted.