1986 PLP 1179 (MLD)

Muhammad Shah etc. v. Jalal Din 1984 M L D 14 and Tabraz v, Said Muhammad etc. P L D 1984 Lah. 456 rel. Haji Sh. Ghias Muhammad with Malik Ashiq Hussain for Appellant. Haji Muhammad Anwar Butter for Respondents. Date of hearing: 4th March, 1986. AKHTAR HASSAN, J.‑‑This R.F.A. arises from the judgment/ decree, dated 30‑10‑1978 of the learned Civil Judge Ist Class, Sargodha, whereby the respondents‑plaintiffs' suit for a declaration and possession was allowed with costs subject, of course, to their being reimbursed a sum of Rs.2,200 as charges paid by them to the State for acquiring in the meantime proprietary rights in the land. They were, however, held liable to pay mesne profits to the appellant‑defendant to We tune of Ra.63,181.66 on "supplying the court‑fee of Re. '4800" till 1‑12‑1978. Otherwise, their claim for mesne profits was .to stand dismissed with costs.

2. The respondents' father was the first grantee of the land in question under the Horse Breeding Scheme. He, however,, sold it in. favour of the appellant. The respondents challenged it under custom and were able to get a decree from the trial Court on 26=3‑1942 whereby the alienation was held to be ineffective against their reversionary rights after the demise of their father. The decree was upheld by the High Court in appeal on 21‑6‑1044. The alienor died on 4‑1‑1974 but before that the appellant had acquired proprietary right, in 1943 in the land by having paid certain dues to the State. The respondents brought the present suit for declaration as also possession urging that the acquisition of proprietary rights by the alienees after the alienation made in their favour had been declared void was of no effect against their reversionary rights and secondly that due to the ‑demise of the abenor' they were entitled to possession as his reversioners.

3. The suit was resisted but ultimately was decreed by the trial Court.

4. An objection has been taken that under section 2‑A of the West Pakistan Muslim Personal Law, (Shariat) Act (Amendment) Ordinance, 1983, the decree, dated 21‑6‑1944 obtained by the respondents securing their reversionary rights has become void as custom in its application stands totally abrogated. According to the appellant, the last male holder shall be deemed to have been governed by Personal Law so that the alienation made by him shall be assumed to have been made by full owner and was no more amenable to any decree which may have been passed over the period in assertion of reversionary rights of his collaterals or descendants. It was added that in this case during the interregnum possession had been forcibly taken from them by the respondents but it was restored to them under the orders of the High Court and that it was not a case where fait accompli could be possibly presented as possession had not been taken by the respondents under the decree. Counsel emphasized that this was the reason why even in the present suit the respondents had made a prayer for possession and the same was granted to them.

5. On the other hand, Haji Muhammad Anwar Butter for the respondents tried to canvass vehemently that the declaratory decree was completely satisfied by delivery of possession to the respondents and that in terms of the proviso to section 2‑A of the said Ordinance,, it was saved. We 'regret we are not persuaded. The judgment of thel learned trial Court specifically lays down that the possession had been forcibly taken by the respondents but it was restored under the orders of this Court. This was the reason why even in the present ‑suit the respondents sought possession of the land. Against this finding they did not prefer any cross‑objections etc. and, therefore, were bound by it. The decree itself shows that the prayer for possession was specifically granted and obviously it was no saved upon the ground of fait accompli. The provisions of section 2‑A (b) of the said Ordinance I fully apply and the decree has become void.

6. Haji Sh. Ghias Muhammad for the appell4nt pressed for acceptance of the appeal on the ground that the impugned decree had become void. He relied upon Abdul Ghafoor etc. v. Muhammad Shafi etc. PLD 1985 S C 407 where three out of the four appeais under consideration, were allowed. In reply, Haji Muhammad Anwar Butter for the respondents relying upon that very authority contended that at least one of the appeals before the Supreme Court was held to have abated. He further found support for this view from Muhammad Shafi etc. v. Jalal Din 1984 M L D 14 and Tabraiz v: Said,.Muhammad etc. P L D 1984 Lah. 456, where while declaring the decrees to be void, the appeals were held to have abated.

7. Since the Supreme Court has been pleased, to hold that one o the appeals had abated under the provisions of clause (c) of section 2‑A ibid, there is no reason not to apply the same dictum to the present appeal particularly when it is more akin to the phraseology used in the clause. It accordingly abates. The parties are left to be their own costs. A.A. Appeal abated.