1986 PLP 1415 (CLC)

2. By means of the said Ordinance, the West Pakistan Muslim Personal Law (Shariat) Act, 1962, hereinafter referred to as the said Act, was amended, and after section 2 of the said Act the following new section 2‑A was inserted: "2‑A. Succession prior to Act IX of 1948. Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim:‑ (a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat); (b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act; (c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith: Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees."

3. It was contended by learned counsel for the petitioners that section 2‑A of the said Ordinance was not given retrospective effect and, therefore, it did not apply to the respondent's appeal which was preferred before coming into force of the said Ordinance. The respondent's appeal was filed on 27th July, 1983 while the said Ordinance came into force on 1st August, 1983.

4. It is apparent from the language of clauses (a), (b) and (c) of section 2‑A of the said Ordinance that it has to operate retrospectively from the date of acquisition of agricultural land by any male owner under custom. It was, therefore, not necessary to say in the said Ordinance, in so many words, that it shall take effect retrospectively. In taking this view, I am fortified by following observations of my learned brother, Saad Saood Jan, J. in Tabraiz v. Said Muhammad and 6 others P L D 1984 Lah. 456:‑ "As a consequence of making a male owner who had inherited land under custom as the absolute owner thereof and equating him with the person who inherited land under the Shariat the restrictions from which he hitherto suffered in matter of disposition of ancestral property stand removed by this new provision, for a person who inherits property under the Personal Law is not subject to any such limitation. Further, the language in which change (a) has been worded indicates that the restrictions have been removed with retrospective effect, beginning right from the time he inherited property under the custom. This position is further apparent from clause (b) which states that 'any decree' judgment or order of any Court affirming the right of any reversioner under custom or usage, to call my question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act."

5. It was further held in the case of Tabraiz that clause (c) of section 2‑A shall apply to pending appeals also. Observations made in this behalf are to the following effect: "To begin with, an appeal is continuation of a suit. Again, male owners succeeding under the custom have been made full owners from the very day they inherited the land, and by operation of clause (b) any alienations made by them have been made valid with retrospective effect. In view of this legal position even if the word "suit" be constructed stricto senso so as not include an "appeal", the expression "other proceedings of such a nature" is wide enough to include appeals also. Any other construction of clause (c) would lead to an incongruous result in that though the decrees already in existence have been declared void and of no legal effect, Court can still pass decrees in derogation of the power of alienation enjoyed by the male owners. I air., therefore, quite clear that the appeal preferred by the appellant is hit by the provisions of clause (‑c) and for that reason it stood abated on the day when Ordinance No. XIII of 1983 came into force." It was also ruled by the Supreme Court in Abdul Ghafoor and others v. Muhammad Shafi and others P L D 1985 S C 407 that the words "other proceedings" used in clause (c) of section 2‑A include appeals. Relevant observations of the Supreme Court read as under:‑ "Not only this, sub‑clause (c) of section 2‑A, provides that all suits and 'other proceedings' of the nature visualised in the clause (b) as interpreted and discussed above, shall abate forthwith. Other proceedings would also include appeals, wherever pending. This appeal, therefore, shall also be hit by clause (c) and is accordingly declared as having abated." Relying on the said two precedent cases, I hold that the appeal of the respondent stood abated on coming into force of the said Ordinance. The fact that it was preferred before the said Ordinance came in the field is of no consequence.

6. It was also urged by learned counsel for the petitioners that the petitioners had taken possession of the disputed land under the decree passed in their favour and, therefore, the said Ordinance will' not be attracted to this case. In this connection, reliance was placed by him on the proviso to section 2‑A of the said Ordinance. Admittedly, the decree obtained by the petitioners was not executed. Learned counsel also did not produce any document showing that the petitioners got possession of the disputed land under the decree, without the same having been formally executed. He filed copies of Khasra Girdawaris which revealed that one of the petitioners, namely, Fateh Muhammad was in possession of the land in question as a tenant, even before the passing of the decree. Since the petitioners did not get possession of the disputed land under the decree granted to them, they cannot take benefit of the proviso to section 2‑A .

7. I do not approve of the remarks of the learned Additional District Judge that the petitioners' suit had abated. Since their suit had already been decreed, question of its abatement did not arise. It is a pending proceeding which abates. However, according to clause (b) of section 2‑A of the said Ordinance, the judgment and decree passed in favour of the petitioners in the suit brought by them had become void, inexecutable and of no legal effect.

8. In view of the foregoing discussion, and with the clarification made just above, this civil revision is dismissed in limine. M. Y. H. Petition dismissed.