2016 PLP 2721 (YLR)

WAHEED AKHTAR ANSARI, MEMBER (JUDICIAL-III).

This revision petition has been taken up as a consequence of judgment dated 21.01.2014 passed in Writ Petition No.9666/2013 titled Bashir Alam etc. v. MBR etc. whereby order dated 18.07.2013 passed by this court was set aside and the case was remanded to this court for decision afresh.

2. Arguments heard and record.

3. Learned counsel for the petitioner argued that mutation No.599 was rightly sanctioned by the revenue officer according to section 20 of the CGLA, 1912, whereby the female descendants were not entitled to inherit land. The ruling PLD 1992 SC 385 of the august Supreme Court applies if the land is owned by private persons. But, in case the land is owned by Provincial Government, then this case law does not apply. Similarly, the Succession Act also does not apply in the instant case as the land involved is owned by the Provincial Government. The above mentioned law has totally been ignored by the learned lower courts while passing the impugned orders which cannot be termed as valid and legal in the eyes of law. Learned lower court has assumed the non-existing powers and passed the impugned order without appreciating the pleadings, contentions and documentary evidence of the petitioner. Finally, it was prayed that the revision petition may be accepted.

4. Learned counsel for respondent No.4 contended that father of the parties was owner of 100-kanals of land. After his death, the respondents were also been given land of their due share. But, they were deprived of their legal and lawful right while passing the impugned mutation No.599. It was very clear law laid down by the august Supreme Court on the subject that in case of death of father (Christian Community), his daughters and sons are equally entitled to inherit legacy as per their entitlement/share. But in the instant case, the respondents were deprived of their lawful right. Therefore, the respondents were deprived of their right through the impugned mutation No.599, which was rightly and justifiably been set aside by learned Deputy District Officer (Revenue), while accepting their appeal and the Tehsildar concerned was directed to pass the mutation afresh strictly in accordance with law. The instant revision petition has been filed against the concurrent orders, wherein no irregularity or illegality has been committed. Just the respondents were allowed to inherit their lawful right. As it is a well settled principle of law that no one should be deprived of his legal and lawful right. While concluding the arguments, it was prayed that the revision petition may be dismissed.

5. I have considered the arguments of the learned counsel for the parties and perused the record available in the case file including the impugned orders. Brief of the matter is that Nawab Masih, the predecessor in interest of the parties was owner of 100-kanals of land situated in Chak No.135/16-L, Tehsil Mian Channu, District Khanewal. He died in year 1991 and after his death, the present petitioners got sanctioned inheritance mutation No.599, dated 27.04.1992, whereby the respondents who are real daughters of the deceased, were deprived of their legal and lawful right of inheritance. The present respondents assailed that order through appeal in the court of learned Deputy District Officer (Revenue), Mian Channu, which was accepted vide order dated 29.12.2010 and the said inheritance mutation was set aside. The operative part of the order is as under:-- Among children no distinction is made bet-ween male & female and between the living and posthumous one. They are share equal

6. Feeling aggrieved by the order, the present petitioners filed a revision petition before learned Additional Commissioner, which was dismissed vide order dated 15.07.2011 the operative part of the order is reproduced as under:--

7. Against this order, revision petition was filed before this Court by the present petitioners, which was dismissed vide order dated 18.07.2013. The operative part reads as under:-- The perusal of impugned orders of Deputy District Officer (Revenue)/ Collector, Mianchannu, dated 29.12.2010 and Additional Commissioner (Revenue), Multan, dated 15.07.2011, shows that the same has been passed on the basis of law settled by august Supreme Court of Pakistan and so requires no interference. Hence the revision petition is dismissed and orders of Deputy District Officer (Revenue)/Collector, Mianchannu, dated 29.12.2010 and Additional Commissioner (Revenue), Multan, dated 15.07.2011, are upheld.

8. This order was challenged by Bashir Alam etc., the present petitioners in the Hon'ble Lahore High Court, Multan Bench, Multan through Writ Petition No.9666/2011 titled Bashir Alam etc. v. MBR etc. This writ petition was accepted vide order dated 21.10.2014 and the case has been remanded to this court for fresh decision. The operative part reads as under:-- "The petitioners through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 have called in question the order dated 18.07.2013 passed by the learned Member, Board of Revenue, Punjab. Learned counsel for the petitioners contended that the order passed by the learned Member, Board of Revenue, is not valid, inter alia, on the grounds that it does not contain any cogent reason; that it suffers from misapplication of the provisions of law; and, that while passing the impugned order the provisions of Section 20 of the Colonization of Government Lands (Punjab) Act, 1912 were not considered. I confronted the learned counsel for the respondents with the above stated grounds and asked as to how the order passed by the learned Member, Board of Revenue is sustainable. In response to court query, learned counsel for the respondents could not offer any plausible reply. Perusal of the order dated 18.07.2013 passed by the learned Member (J-III), Board of Revenue, Punjab unfolds the fact that it neither contains any cogent reasons nor speaks about the averments made by the petitioners in their revision petition. It is an established principle of law that judicial order must be a speaking order manifesting by itself that the court has made an endeavour to sift the grains from the chaff for the resolution of the issues involved for the proper adjudication. The ultimate result may be reached by a diligent effort, but if the final order does not bear an imprint of that effect and on the contrary discloses arbitrariness of thought and action, the feeling with the painful result, that justice has neither been done nor seems to have been clone is inescapable. In this regard reference may be made to the judgment rendered by the Hon'ble Supreme Court of Pakistan in the cases of Mollah Ejahar Ali v. Govt. of East Pakistan and others (PLD 1970 SC 173) and Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others (PLD 1970 SC 158). In the instant case, I find that the order recorded by the learned Member Board of Revenue does not exhibit judicious treatment of the case and determination of the dispute and, therefore, cannot be held a valid order. It was the duty of the learned Member Board of Revenue to deal with all the issues as the Board of Revenue is the highest court of appeal and revision in revenue cases. Thus, without going to the other questions raised by the parties this petition is hereby allowed on the basis of the aforesaid preliminary substantial question of law raised by the petitioners. The impugned order dated 18.07.2013 passed by the learned Member (J-III) Board of Revenue, Punjab is hereby set aside and the matter is remanded to him for fresh disposal in accordance with law preferably within a period of six months. Parties are directed to appear before the Learned Member (J-III) Board of Revenue, Punjab on 12.11.2014.

9. From the above examination, it appeared that land mearuing 100-kanals situated in Chak No.135/16-L was allotted to Nawab Masih, the predecessor of the parties. As per Section 20 of Colonization of Government Lands Act, 1912 such lessees are inheritable. So, it is established that such piece of land was inheritable and was to be distributed among the successors of the deceased according to law. The petitioner's contention is that the case has wrongly been treated as a case of succession, whereas it is not. He referred to Section 20 of Colonization of Government Lands Act, 1912, which reads as under:-- "

20. Succession of tenants acquiring otherwise than by succession. Subject to the proviso to section 14; when, after the commencement of this Act, any original tenant dies the succession to the tenancy shall devolve in the following order succession to the tenancy shall devolve in the following order upon:- a. the male lineal descendants of the tenant in the male line of descent. (The term 'lineal descendants' shall include an adopted son whose adoption has been ratified by a registered deed). b. the widow of the tenant until she dies, or remarries, or loses her rights under the provisions of this Act; c. the unmarried daughters of the tenant until they die or marry or lose their rights under the provisions of this Act; d. the successor or successors nominated by the tenant by registered deed from amount the following persons, that is to say, his mother, [his pre-deceased sons's widow] his married daughter, his daughter's son, his sister, his sister's son, and the male agnate members of his family and e. the successor or successors nominated by the Collector from among the persons enumerated in clause (d) of this section.

10. From the above, it is quite clear that even the title of the section is about "Succession". Actually, the petitioners want that such case of succession be dealt under Christian Customary Law of succession, whereby only male offspring is entitled for succession of the deceased. But such law has been struck down by august Supreme Court of Pakistan. Reliance is placed upon PLD 1992 Supreme Court 385, which reads as under:-- (a) "S.29

Customary succession, so far as Christians were concerned, was altered by Succession Act, 1925 which also abolished customary law in Punjab for the Christians. Kamawati v. Digbijai Singh AIR 1992 PC 14; Sohan Lal v. A.Z. Makuin and another AIR 1929 Lah. 230; Sita Ram and others v. Raja Ram 12 Singh v. Jogindra Chandra Bhattacharji AIR 1940 All. 134; Muhammadan Law by Tyabji, 3rd Edn. P.28 and Haji Nizam Khan v. Additional District Judge, Lyallpur and others PLD 1976 Lah. 930. (b) S.29

Christian female was allowed to inherit in presence of the male heirs

Succession Act, 1925, by statutory dispensation having determined the mode of succession when a Christian male died neither the custom nor any other law would be applicable. Kamawati v. Digbijai Singh AIR 1992 PC 14; Sohan Lal v. A.Z. Makuin and another AIR 1929 Lah. 230; Sita Ram and others v. Raja Ram 12 Singh v. Jogindra Chandra Bhattacharji AIR 1940 All. 134; Muhammadan Law by Tyabji, 3rd Edn. P.28 and Haji Nizam Khan v. Additional District Judge, Lyallpur and others PLD 1976 Lah.

930. Constitution of Pakistan (1973) (c) Art.184(3)

Original special jurisdiction of Supreme Court

Case involved important questions of law of public importance; it related the Fundamental Rights of property being claimed by females who were members of minority community who in Pakistan and Islam were additionally protected

Supreme Court, while considering the case to be amply fit for exercise of the power to do complete justice, treated the case covered by the original jurisdiction of Supreme Court under Art.184(3) of the Constitution which could be invoked for the enforcement of fundamental rights.

11. So, now the case is to be dealt under Section 29 of Succession Act 1925, which reads as under:--

29. Application of part (1). This part shall not apply to any intestacy occurring before the day of January, 1866, or to the property of any Hindu, Muhammadan, Buddhist, Sikh and Jaina. (2) Save as provided in subsection (1) or by any other law for the time being in force, the provisions of this part shall constitute the law of [Pakistan] in all cases of intestacy. Comments Christian female was allowed to inherit in presence of the male heirs. Succession Act, 1925, by statutory dispensation having determined the mode of succession when a Christian male died neither the custom nor any other law would be applicable. Customary succession so far as Christians were concerned, was latered by Succession Act, 1925 which also abolished customary law in Punjab for Christians.

12. So, it becomes clear that both male and female offspring is entitled for succession of the deceased. The impugned order has been passed on the basis of same principal of law laid down by the august Supreme Court of Pakistan, which is quite lawful and needs no interference. Hence, the revision petition is dismissed being without merit and impugned order dated 15.07.2011, passed by learned Additional Commissioner (Revenue), Multan Division, Multan, is upheld. HBT/4/Rev. Petition dismissed.