2004 PLP 1640 (SCMR)

MUNIR A. SHEIKH, J.

By this common judgment, we propose to decide the titled two appeals which have arisen from the same consolidated judgment of the Lahore High Court.

2. The dispute relates to the inheritance of Mst. Tabbi, deceased, who was owner of land in village Taj Pura Tehsif Boolath Riyasat Kapoorthalla, India. She died during the disturbance of 1947 and according to the learned counsel for the appellants, the claim regarding the said land was filed by the predecessor-in-interest of the appellants which was duly verified against which land in dispute was allotted in the name of Mst. Tabbi deceased. A mutation of her inheritance was attested in favour of Umar Din, deceased plaintiff alone on 5-5-1964 by the Revenue Officer under the General Revenue Laws. 'The respondents and their predecessor-in-interest challenged this order by filing appeal in which the case was remanded and Mutation No. 1156 was attested against plaintiff Umar Din who assailed the said order which through order, dated 17-4-1968. The High Court through judgment, dated 20-10-1973 set aside all these proceedings and it was directed that fresh mutation should be sanctioned by the Rehabilitation Settlement Authorities under the Settlement laws. The matter was taken up by the Deputy Rehabilitation Commissioner, Sheikhupura who on 1-7-1987 sanctioned a mutation in favour of the respondents while plaintiff Umar Din was excluded. It was held that plaintiff Umar Din was not heir of Mst. Tabbi. This order was challenged before the Additional Commissioner Revenue in appeal which was dismissed on 26-9-1988. Revision petition filed by the plaintiff before the Board of Revenue was dismissed through order, dated 4-6-1989 on the ground that the same was not maintainable/competent.

3. Umer Din deceased plaintiff filed civil suit from which Civil Appeal No. 1803 of 1998 has arisen for declaration that the orders passed by the Rehabilitation Authorities about the inheritance of Mst. Tabbi were against law and ineffective upon his rights as heir of Ghulam Muhammad who was the last male owner as the property was to be inherited by his heirs and not the heirs of Mst. Tabbi. The respondent defendants in the suit also filed a suit for declaration that they were the heirs of Mst. Tabbi who was not a limited owner, therefore, a declaration may be made accordingly. The trial Court after recording evidence dismissed the suit filed by Umar Din deceased predecessor-in interest of the appellants and the other filed by the respondents decreed. It was held that Mst. Tabbi was not limited owner and she being the full owner, the property was to be inherited by her heirs and not by the heirs of Ghulam Muhammad deceased her husband. It was through judgment, dated 17-10-1994. Appeals filed before the First Appellate Court were dismissed through judgment dated 28-4-1998 by the learned Additional District Judge and two revision petitions filed before the High Court have been dismissed through the impugned judgment dated 4-6-1998 against which these appeals by leave of the Court are directed.

4. While going through documents placed on the record with the assistance of learned counsel for the parties, we noticed that in the earlier proceedings of mutation on the revenue side, the case of Umar Din deceased was that he was the heir of Mst. Tabbi deceased to the exclusion of the other, therefore, got a mutation of inheritance in his own name alone though Mst. Tabbi had left a daughter namely Fazal Bibi. He did not concede right of inheritance to her daughter even

5. In the subsequent proceedings, before the Rehabilitation Settlement Authorities, the case made out by Umar Din was that Mst. Tabbi was holding the land as limited owner in India where her last male owner was Ghulam Muhammad deceased her husband, therefore, mutation of inheritance should be passed in favour of heirs of Ghulam Muhammad and not Mst. Tabbi. His plea was that he was collateral of Ghulam Muhammad deceased, as such, was entitled to inherit the land as such, mutation should have been sanctioned in his favour.

6. The Rehabilitation and Settlement Authorities came to the conclusion that the land in dispute was to be inherited by the husband of Mst. Tabbi, therefore, mutation of inheritance was sanctioned in favour of the respondents against which appeal filed by the appellants was dismissed. The revision petition filed by them before tic Board of Revenue as observed above was dismissed on the ground that the same was not maintainable/competent. It may be observed here that under the Settlement Laws under which the same mutation of inheritance was sanctioned, no revision against the orders of the Rehabilitation Authorities was maintainable before the Board of Revenue though the Board of Revenue was vested with the jurisdiction and power to entertain a revision petition against the orders to the Revenue Officers passed under the Punjab Land Revenue Act in respect of a mutation of inheritance of the land other than the evacuee land which was the general law. The appellants did not challenge the orders of the Settlement and Rehabilitation Authorities any further before the High Court in the Constitutional petition but instead filed a civil suit before the trial Court against these orders which have been dismissed by all the Courts below through the judgment impugned in these appeals.

7. Issued No.2 framed in the suit of the appellants reads as under:-- "(2) Whether this Court lacks jurisdiction to entertain this suit? OPD of Suit No.272/89?

8. The trial Court held that the respondents who had raised the said objection failed to prove by production of any relevant law that the Civil Court lacked jurisdiction in the matter. It was also held that the question as to inheritance of a deceased owner of the land was to be decided by the Civil Court of general jurisdiction in case there was any dispute and not by the Revenue Authorities or the Court.

9. It appears that while holding so, the Courts below have altogether ignored that it was not a case of sanction of mutation by the Revenue Authorities under the general revenue laws i.e. Punjab Land Revenue Act, 1967, but was a case which had been decided under the Rehabilitation Scheme as regards question of inheritance of a deceased right holder under the Settlement Laws.

10. Ch. Muhammad Anwar Bhinder, ASC, learned counsel for the appellants when questioned as to how the Courts below could hold that the Civil Court did not lack, jurisdiction merely because the respondents did not quote or refer to any provision of law, for according to the law laid down by this Court in the case of Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690, it was the duty of, the Court to apply the law whichever is applicable to the facts admitted or established/proved on the record because the parties are not bound to engage a counsel has no answer.

11. It was a case decided by the Rehabilitation and Settlement Authorities under the Rehabilitation and Settlement scheme framed under the Rehabilitation and Settlement Laws about the inheritance of a deceased right holder, therefore, was governed by these laws. According to section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the jurisdiction of the Civil Court of general jurisdiction was barred to question the validity or otherwise of the orders passed by the Rehabilitation and Settlement Authorities in such matters. It has been held in the case of Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762 that the question of inheritance of deceased right holder was required to be decided under the relevant paragraphs of settlement scheme as such, was a matter within the exclusive jurisdiction of the Settlement Authorities and jurisdiction of the Civil Court in such matters was barred.

12. On this short ground, the suit was liable to be dismissed without going into the question of the merits as to the pleas raised by the appellants. Since the Courts below have not interfered with the orders passed by the Settlement and Rehabilitation Authorities, therefore, no illegality has been committed by them in dismissing the suit of the appellants.

13. If the appellants felt aggrieved by the orders of the, Settlement Authorities; they should have further challenged the orders of the Settlement Authorities before proper forum and it was rightly held that revision petition filed before the Board of Revenue was not maintainable under the Settlement Laws. The orders passed by, the Settlement Authorities, therefore, attained finality and became past and closed transactions was cannot be allowed to be re opened.

14. It may be observed that the respondents had unnecessarily filed suit for declaration, for the Settlement and Rehabilitation Authorities had already passed mutation of inheritance in their favour, therefore, their suit was liable to be disposed of as fructified after the dismissal of the suit of the appellants as being infructuous.

15. For the foregoing reasons, the appellants have failed to make out any case for interference by this Court in the impugned judgment, therefore, these appeals have no merits which are accordingly dismissed. No order as to costs. S.A.K./M-88/S Appeals dismissed.