1985 PLP 64 (CLC)

The petitioner through this writ petition seeks a declaration to the effect that the orders, dated 30-8-1981 and 13-2-1980 passed by respondents Nos.1 and 2, respectively are without lawful authority and of no legal effect on the rights of the petitioner.

2. Briefly the facts giving rise to this petition are that Fateh Ali, father of the petitioner was killed in Hoshiarpur, East Punjab (India) during partition disturbances of 1947, leaving 1/3rd of 70 acres of land in Mauza Patti, tehsil and district Hoshiarpur when the petitioner alongwith his family came down to Pakistan. A claim was submitted by the petitioner in the name of the deceased which was verified in the name of the deceased. An allotment of about 14 acres was made in Chak No.12/1-L, tehsil Okara district Sahiwal (now district Okara). On discovery by the Rehabilitation Authority that Fateh Ali had died in 1947, Mutation No.10 was sanctioned on 26-6-54 in favour of Mst. Rehmat Bibi, the widow, Fazal Karim petitioner the son, Mubarik Bibi and Fazal Bibi the daughters of said Fateh Ali in a joint Khata as his legal heirs. The petitioner in the year 1959 filed an application for the correction of Mutation No.10 before the Deputy Rehabilitation Commis sioner (L)/Tehsildar, Okara on the ground that the inheritance was to be effected in accordance with the custom. The Deputy Rehabilitation Commissioner passed an order dated 18-8-1959 to the effect that the mutation of inheritance as to the property was to be entered only in the name of the petitioner. Under this order Mutation No.7 was sanctioned on 15-8-1960. On 25-7-1977, respondents Nos. 3 and 4 filed an appeal against the mutation dated 15-8-1960 before the Assistant Commissioner/ Collector Okara. The learned Assistant Commissioner/Collector dismissed the appeal on 9-12-1978 on the ground that the appeal was barred by time. Again an appeal therefrom was carried to the Additional Commis sioner Multan which appeal was accepted by him vide his order dated 13-2-1980 in which he observed that it was to be noted that the orders passed by the Assistant Collector I were ex parte and the appellants/ respondents Nos. 3 and 4 had been condemned unheard. In fact the period of limitation was to run from the date of the knowledge of the orders. The mutation had not been decided in accordance with para.46. The impugned orders were nullity in the eye of law. The learned Assistant Commissioner erred in holding that the appeal was barred by limitation. A direction to the Assistant Collector-II was issued to decide the mutation of inheritance according to the Shariat Law. Against this order of the Additional Commissioner the petitioner filed a revision petition before the learned Member Board of Revenue, Punjab, Lahore, who observed that the plea of the counsel for the petitioner was that the inheritance opened before the partition, therefore, the petitioner alone was entitled to inherit the property under the Customary Law. The plea could not be accepted because the property was being allotted in Pakistan where there was Shariat Law" therefore, all the legal heirs of the deceased were rightly given the property. He dismissed the revision petition so filed vide his order, dated 30-8-1981.

2. The learned counsel for the petitioner has in this writ petition contended firstly that the impugned orders passed by respondents Nos. 1 and 2 are without jurisdiction and lawful authority because firstly respondent No.2 had no authority to go into the matter which was hopelessly time barred for which no plausible explanation had been offered by respondents Nos. 3 and

4. Secondly, under the first proviso to clause (c) of subsection (1) of section 161 of the West Pakistan Land Revenue Act, 1967, no appeal was provided and competent before the learned Additional Commissioner so he wrongly decided the appeal in a wrong forum of jurisdiction. Instead of an appeal a revision petition was competent before the learned Additional Commissioner. The learned Additional Commissioner could not entertain an appeal though he could entertain a revision. The order is without jurisdiction because he was not conscious of the fact that he could not hear an appeal. As to the bounds of jurisdiction the learned counsel has relied upon Akhtar Aksi v. Aftab Ahmad Khan and another P L D 1960 (W.P.) Lab. 57 in this case a decision of a learned Single Judge ordering a fresh hearing of the revision petition on the ground that the Rehabilitation Commissioner throughout his order had referred to the proceedings before him as an appeal when in fact he was not hearing an appeal but a revision petition as such he misconceived his jurisdiction, was upheld. The learned Judges observed:- "There is a fundamental distinction between appeals and revisions whether preferred before a Civil Court or before the Rehabilitation Commissioner and that is, that an appeal is the right of a party, whereas interference in revision is a matter for the discre tion of the authority invested with revisional powers.. At is the right of a party that the tribunal that determines his case should be conscious of the bounds of the jurisdiction that it has to exercise." The next contention of the learned counsel for the petitioner is that in the case in hand the inheritance was to be determined under the Customary Law as envisaged by pars 46 of the West Pakistan Rehabilitation Settlement Scheme, 1956 whereby the petitioner was entitled to succeed to the property of his father to the exclusion of all other heirs and not under the Muslim Law. The Mutation No.7 was sanctioned according to the law applicable to the petitioner. At the time of the sanctioning of the mutation the Shariat Law was not at all applicable. Para. 46 of the West Pakistan Rehabilitation Settlement Scheme reads as:- "For the purpose of Rehabilitation Settlement Scheme the cases of inheritance of rufugee-right-holders in regard to the agricul tural property, where the parties are Muslims, shall be decided according to Shariat Law except in such cases where succession opened prior to the promulgation of the Muslim Personal Law (Shariat) Application Act, 1948, these cases will be decided in accordance with Customary Law or the Law applicable to the parties in the prescribed territory of India as the case may be." He has next relied upon Syed Abdul Rashid v. Pakistan through Secretary Ministry of Refugees and Rehabilitation Karachi and others P L D 1962 S C 42 in which while considering the provisions specifically paras 46, 46-A, 67 read with Paras 2, 14, Part-I of the Rehabilitation Resettlement Scheme (Punjab), the learned Supreme Court has observed:- "We are equally of the opinion that when a confirmed allottee under the Scheme dies he is vested with real property which is capable of being inherited and will be inherited by persons who would according to the general law of the land governing inheritance from such a person be entitled to inherit from him. Having regard to the context in which paragraphs 46, 46-A occur in the Scheme the cases therein dealt with are of inheritance from deceased 'right holders' and not from deceased confirmed allottees." Zafarullah and 23 others v. Muhammad Siddiq and others P L D 1980 S C 76, in this case it has been observed:- "It would thus be seen that there is a clear distinction in respect of the question of inheritance of a deceased who was a confirmed allottee and the one whose allotment had not been confirmed when he died. In the case of a confirmed allottee his inheritance would be governed by the Shariat Act. But in the case of a non-confirmed allottee his inheritance would be governed by Para 46 of the Punjab Rehabilitation and Settlement Scheme." Babu Ali Muhammad v. Mahmoodul Hassan P L D 1968 Lah. 329 in which it has been held that the allotment after it is confirmed creates an inheritable interest, it is real property.

3. The learned counsel for respondents Nos. 3 and 4 in reply addressed that it is not the form but the substance and over all the effect which is to be taken into account. It is not denied that against the order of a Collector passed in appeal respondent No.2 had got the revisional jurisdiction and therefore, mere description as appeal would not take away the revisional jurisdiction. It has been further maintained that before a person can be permitted to invoke the discretionary power of a court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality then the extraordinary jurisdiction ought not to be allowed to be invoked. The reliance is placed on Raunaq All v. Chief Settlement Commissioner P L D 1973 S C

236. He has next submitted that since the petitioner had submitted to the jurisdiction of the learned Additional Commissioner and not raised any objection that the appeal was not competent so the objection cannot be allowed to be raised in the writ proceedings. For this the learned counsel has relied upon. Sh. Muhammad Anwar v. Sultan Mahmood Khan 1974 S C M R

371. The learned counsel has also relied upon Farid Majid and another v. Muhammad Nawab P L D 1976 Kar. 891 in which it has been held that where an appeal is preferred in a case not appealable the High Court in proper cases may treat the appeal as an application for revision. The learned counsel for respondents Nos. 3 and 4 has next contended that the orders passed by respondents Nos. 1 and 2 were quite lawful and with jurisdiction. No limitation runs against an order passed ex parte and as a result of fraud committed by the other side. He has further submitted that the Shariat Act XI of 1948 was already in force when Mutation No.10 was sanctioned. The rule of custom was not at all applicable to the facts of the case. No mutation of inheritance of deceased Fateh Ali was sanctioned in India. The claim was submitted and verified in the name of Fateh Ali, the original refugee right holder. By the time Mutation No.7 was sanctioned on 15-8-1960 the Shariat Law was fully applicable to the case of the respondents by virtue of amended para 46 of the West Pakistan Rehabilita tion and Settlement Scheme vide memo, dated 5-5-1960 which says that the cases of inheritance of displaced persons right-holders in regard to the agricultural property where the parties are Muslims shall be decided according to the Shariat Law. He has also relied on the dictum laid down in Umar Draz Ali v. Khurshid Ali and others P L D 1960 (W.P.) Lah. 834 wherein it has been held that the law of inheritance to the estate of a right-holder who died before the enforcement of the Shariat Act and in case of opening of succession to a right-holder on the termination of a life estate is governed by the provisions of para graphs 46 and 46-A of the Resettlement Scheme as amended up-to-date. At no time was it the intention of the Government, or the Rehabili tation Commissioner, to apply the rule of customary law, or the provisions of Shariat Act or pure Muslim law to such cases. ..On the contrary, various amendments have been made to the paragraphs in question from time to time, as it suited the policy of the Government, to resettle and rehabilitate as a large number of refugees as was possible under the circumstances. .the mutations sanctioned by the Rehabilitation or the Revenue authorities in these cases do not pertain to the estates of deceased right-holders abandoned by them in India but are simply a measure for resettlement of refugees in Pakistan and no question of retrospective application of the provisions of Paras 46 and 46-A (of the Settlement Scheme as amended upto date) arises in these cases; Mst. Basso v. The Rehabilitation Commissioner (Land), West Pakistan, Lahore etc. P L D 1963 S C 347 in which it has been held that "as the judgment of the Full Bench clearly indicates, the expression "right holder". Is used in a special sense in the judgment, that is, as referring to the name appearing in the revenue or other records in India at the time of the Partition. We note that in paragraph 46 of the Rehabilitation Resettle ment Scheme, which lays down in clear terms that cases of inheritance should be decided according to Shariat Law, reference is made in several places to "deceased refugee owners" and in our view, this expression is to be understood in the same sense, namely, as referring to the last owner of the estate, as recorded in the Indian papers, the inheritance to whom is the subject of decision by Rehabilitation Authorities in Pakistan. ..In the latter case (Umar Draz Ali) the duty of the Rehabilitation authorities under the scheme which possesses legal force, is to deal with the case as if the rights in the estate devolved under the law of Shariat irrespective of any special law by which the parties were governed in India. That rule which is laid down in paragraph 46 should apply in the case of the estate of Sadhu notwithstanding that he lost his life in India, "Mst. Mahajani v. Mst. Mehtab Bibi and 4 others P L D 1978 Lah. 22, in this case the learned Judge followed the ratio laid down in the cases of Umar Draz Ali, Syed Abdur Rashid and Mst. Basso. The last reply of the learned counsel for the respondents is that the petitioner has though claimed custom as the rule of inheritance yet has not proved the same. He has relied in this behalf on Muhammad Jan and another v. Rafi-ud-Din and another P L D 1949 P C 18 wherein it has been held:- "It must be accepted that in the Punjab the burden lies upon those who assert that they are governed by custom to prove the fact, and to establish the particular custom, and if such evidence is not available the parties are governed by their personal law."

4. As to the first contention raised by the learned counsel for the petitioner, it is true that a revision was competent to the learned Additional Commissioner from an order of affirmance passed in appeal and not the appeal yet had the petitioner raised the objection at the proper time the same could have been corrected because in that event the learned Additional Commissioner was simply to treat the appeal irrespective of its form as revision and decide the matter. This objection was not raised even before the learned Member, Board of Revenue. So far the first time it cannot be allowed to be raised nor any weight can be attached at this distance because it cannot be said that the learned Additional Commissioner lacked the basic jurisdiction to look into the order passed by the Collector in appeal. It has not been shown that any prejudice in this behalf has been caused to the petitioner. He could achieve the result which he has done even sitting in his revisional jurisdiction because the matter involved in the case was that respondents 3 and 4 had been condemned unheard and also that what was to be the law for effecting mutation of inheritance. As to the very disallowing of the objection, not raised before, within the writ proceedings the reliance of the learned counsel for respondents 3 and 4 is well placed,the ratios of the decisions are being applied here:-

5. As to the question of limitation the observations made by the learned Additional Commissioner as set out above cannot be regarded as without lawful authority since he could come to any conclusion within his jurisdiction even as to a question of law. Reliance can be safely placed upon Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139.

6. After the claim stood verified in the name of the deceased ,it came to the notice of the Rehabilitation Authority during the proceedings of allotment that Fateh Ali had lost his life in 1997. Accordingly the mutation of inheritance No.10 was sanctioned on 26-6-1954 in the name of the petitioner, respondents 3 and 4 and Mst. Mubarik Bibi presumably as legal heirs entitled to inherit under Para 46 of the Rehabilitation and Resettlement Scheme (Punjab) which was the law applicable at the relevant time according to which the Shariat Law 1948 was to govern the inheritance of deceased right holder Irrespective of the Customary Law or any other law in force in India which legal position as is obvious from the latter decision relied upon by the respondents was upheld so the matter at that time stood concluded in accordance with the law in force. It appears that the petitioner to have the benefit of the West Pakistan Rehabilitation Settlement Scheme framed in 1956 in supersession of all previous schemes framed by the Rehabilitation Commissioner of the former provinces and States then integrated in the province of West Pakistan, made an application to the Deputy Rehabilita tion Commissioner in the year 1959 that the inheritance was to be effected in accordance with custom. The order of the Deputy Rehabilita tion Commissioner/Tehsildar, dated 18-8-1959 on that application that the mutation of inheritance was to be sanctioned only in the name of the petitioner under the custom and the resultant Mutation No.7 superseding Mutation No.10, both were without lawful authority for the reason that the transaction had become past and close which in turn itself was based on the correct exposition of the law in force by that time. This ground alone by itself is sufficient to non-suit the petitioner in view of which the objection that the learned Additional Commissioner had no power to entertain the appeal is of no avail.

7. Since the learned counsel for the petitioner has argued this case under the West Pakistan Rehabilitation Settlement Scheme, therefore, it is necessary to proceed further. The first above-said position is reiterated but assuming that the Deputy Rehabilitation Commissioner/ Tehsildar could take up the matter of inheritance for the purpose of mutation then the law in force at that time was pars 46 of the West Pakistan Rehabilitation Settlement Scheme as contrated with the Rehabili tation and Resettlement Scheme (Punjab). Though Para 46 was amended on 5-5-1960 whereby the Shariat Law was made applicable to the cases of inheritance of displaced persons right-holders in regard to the agricultural property where the parties were Muslims, yet at the time the order as to the subsequent mutation was passed, the unamended C Para 46 of the West Pakistan Rehabilitation and Settlement Scheme occupied the field. It is an admitted fact that Fateh Ali was killed during the disturbances in India on his way to Pakistan. If it is taken that the succession to the deceased opened in India within the letters of Para 46 of the Scheme then the inheritance was to be decided either in accordance with the customary law or the law applicable to the parties in the prescribed territory of India as the case was to be. Two laws could be said to be in force in India at the time of the death of Fateh Ali. The Punjab Laws Act IV of 1872 under which sections 5 and 6, were enacted as to the matters enumerated therein:-

5. In question regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions or any religious usage or institution, the rule of decision shall be

(a) any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and has not been, by this or any other enactment, altered or abolished, and has not been declared to be void by any competent authority; (b) the Muhammadan Law, in cases where the parties are Muhammadan, and the Hindu Law, in cases where the parties are Hindus, except in so far such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom, as is above referred to.

6. In cases not otherwise specially provided for, the Judges shall decide according to justice, equity and good conscience." and the Shariat Act, 1937, which received the assent of the Governor-General on 7th October, 1937, is to the following effect:- 1. (1) This Act may be called the Muslim Personal Law (Shariat) Application Act, 1937. (2) It extends to (all the Provinces and the Capital of the Federation) excluding the North-West Frontier Province.

2. Notwithstanding any custom or usage to the contrary in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including Talaq, Ila, Zihar, Lian, Khula and Mubaraat, maintenance, dower, guardianship, gifts, trust and trust properties, and Wakf (other than charities and charitable institu tions and charitable and religious endowments) the rule of decision in case where the parties are Muslims shall be the Muslim Personal Law (Shariat)."

8. Though the saving as to the questions relating to agricultural land in Shariat Law, 1937 in a sense gives way to the Punjab Laws Act (IV of 1872) yet sub-clause (b) to section 5 of the Punjab Laws Act in the matter of succession positively says that the Muhammadan Law will apply when the parties are Muhammadan except in so far as such law has been modified by a custom. The Courts of Punjab have been deciding the questions of succession on personal law wherever a custom and its nature has not been established which modifies that law. So no presump tion is to be raised in favour of a custom. The onus probandi lies upon a person asserting that he is ruled by a custom. Refer: Abdul Karim v. Ghulam Ghaus P L D 1951 Lah. 386 and Mst. Qaiser Khatoon v. Maulvi Abdul Khaliq P L D 1971 S C

334. As to the claim of the petitioner that under the custom he is entitled to succeed to the agricultural property left by his father to the exclusion of the daughters and wife of the deceased, there is no evidence that the family of the petitioner or the deceased was governed by such a custom in the matter of inheritance as to the agricultural land and this fact has been admitted by the learned counsel for the petitioner, so where a custom has not been successfully invoked and proved, it is well settled, then the parties are to be governed by their personal law.

9. For the foregoing reasons this petition is dismissed. However, in the circumstances, there is no order as to costs. M.B.A. Petition dismissed.