1994SCMR 1715 (PLP)

NASIM HASAN SHAH, J.‑‑‑This appeal, by leave of this Court, is from the order dated 26‑2‑1989 of the Lahore High Court holding that the first appeal against the order of remand made by the Additional District Judge had abated. The dispute in this appeal relates to 53 Kanals 14 Marlas of agricultural land situate in village Jawahirpur of Tehsil Nankana Sahib in District Sheikhupura. It was owned by one Hamoon. He went to perform Hai about 80 years ago and died in the Hedjaz. After his death, the land in dispute was taken over by the appellants as his third degree collaterals. In 1964, Mst. Zainab Bibi, predecessor‑in‑interest of respondents Nos. 1 to 4, initiated proceedings before the Revenue authorities claiming her share in the land in dispute as sister of Hamoon. The matter went up to the Board of Revenue, which upheld her claim to the extent of half share in the land in dispute. The appellants filed a writ petition to challenge the legality of the order of the Revenue authorities. Their writ petition was dismissed on the ground that their proper remedy lay before a Civil Court. Thereupon, they filed a civil suit for a declaration that they were exclusive owners and in possession of the land in dispute. The suit was dismissed by a Civil Judge at Nankana Sahib on the ground of limitation, whereupon they preferred an appeal before the Additional District Judge who set aside the judgment of the trial Court and remanded the case for a further trial after framing some more issues. The respondents challenged the order of remand in the High Court. A learned Single Judge in the High Court took the view that after the enforcement of the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983, the appeal had abated on the ground that the suit was based on custom and the last male holder to whom Mst. Zainab succeeded was a male person. Leave was granted for consideration of the contention that the appellants having taken over possession of the property of Hamoon under the custom long before Independence and as such the provisions of the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 were not applicable to their case. The relevant provisions of the 1983 Ordinance provide: "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:‑‑ (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." Now in this case, it is important to determine the time of Hamoon's death as it is only after this question is determined that the further question whether the provisions of the 1983 amending Ordinance were attracted or not would arise? In this case, the question of the date of death arose in 1964. No concrete evidence on this point has been brought on the record and this was largely due to the fact that no specific issue was framed on this question. The learned Additional District Judge, therefore, rightly framed a specific issue (No. 7), inter alia, on this point. The case was remanded for decision of this issue, alongwith some other additional issues framed by him after giving an opportunity to the parties to lead evidence on these issues. We consider that for the proper determination of the case a decision on these issues was necessary and the case can be decided satisfactorily only by following the course suggested in the judgment of the learned Additional District Judge, noticed above. We would, therefore, allow this appeal, set aside the judgment of the High Court dated 26‑2‑1989 and restore that of the Additional District Judge dated 12‑4‑1982. In view of the fact that this is an old case the learned trial Judge shall give priority to its disposal and decide it with expedition. No costs. AA./M‑1935/S Appeal accepted.