1987 PLP 1395 (SCMR)

SAAD SAOOD JAN, J.‑‑The petitioners are the Muslim Law heirs of one Muhammad Ismail. He was a member of a Co‑operative Farming Society in Multan and as such he was given a lot of agricultural land mesuring 12 acres. As provided by the bye‑laws of the Society, he nominated his grandson Noor Muhammad to succeed to him. He died in the latter half of 1967. Accordingly, after his death Noor Muhammad was admitted to the membership of the Society on 20‑5‑1970. Noor Muhammad then nominated his son Muhammad Yaqub to succeed to him. He died on 24‑10‑1975.In pursuance to the nomination made by him Muhammad Yaqub was admitted to the membership of the Society on 15‑6‑1979. The petitioners agitated against the membership granted to Muhammad Yaqub in appeal before the Deputy Registrar of Co‑operative Societies but without any success.

2. By an order dated 2‑5‑1974 the Collector resumed the land allotted to Muhammad Ismail for non‑payment of Government dues amounting to Rs.6,870.47. Somehow or the other this order was not reflected in the revenue record and later a mutation of inheritance was attested by the local Revenue Officer whereby the land in question was mutated in favour of the petitioners as heirs of Muhammad Ismail. After the attestation of the mutation the petitioners filed an appeal before the Commissioner against the order of resumption. By his order dated 28‑4‑1980 the Commissioner dismissed the appeal on the grounds that it was barred by time and that the petitioners were not members of the Co‑operative Farming Society. The petitioners then preferred a revision petition before the Board of Revenue. They also cleared all the Government dues. The Board took the view that under section 19‑A of the Colonization of Government Lands Act, the petitioners as heirs of Muhammad Ismail were also entitled to inherit his tenancy rights; accordingly, by its order dated 9‑12‑1980 is set aside the order of resumption and directed that the land be mutated in favour of the petitioners alongwith respondents Nos.2 to 5 as heirs of Muhammad Ismail.

3. Muhammad Yaqub, respondent No.2, challenged the order of the Board in writ jurisdiction in the High Court. A learned Single Judge in the High Court held that as nominated person Muhammad Yaqub alone was entitled to succeed to the membership of the Co‑operative Farming. Society as well as to the land originally allotted to Muhammad Ismail. Accordingly, he accepted the writ petition and declared the order of the Board of Revenue to be without jurisdiction and of no legal consequence. The petitioners now seek leave to appeal from the order of the learned Single Judge.

4. In support of this petition it is contended that the High Court has proceeded to record its judgment on the view expressed in the case of Karim v. Hajyani Hanifa and 4 others P L D 1970 Kar. 613 which was overruled by the Supreme Court in Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others P L D 1974 S C 185 and, further, the bye‑laws of the Co‑operative Farming Society could not override the provision of the Muslim Personal Law relating to succession. These contentions need examination. Leave to appeal is granted to the petitioners. Security for costs in the sum of Rs.2,

500. The appeal should be made ready on the present record with permission to the parties to file additional documents. During the pendency of the appeal the respondents are restrained from alienating the land in dispute. The appeal should be listed for hearing at an early date. M.I/A‑51/S Leave granted.