1994 PLP 232 (CLC)

MUHAMMAD HUSSAIN ARIL KHATRI, J.‑‑‑The case of the petitioner is that respondent No.4 (since deceased) was wife of one Sondha Khan, who had died issueless in East Punjab before Independence and, therefore, respondent No.4 acquired life interest in her husband's estate, situated in agreed area, namely Village Armad, Tehsil Thanesar, District Karnal, East Punjab, India, consisting of agricultural land. According to the custom and usage then prevalent, the said estate acquired as above by the said respondent, was to revert to the petitioners who are the collaterals and agnates of the deceased Sondha, on the death or remarriage of respondent No.4. After migration to Pakistan the petitioner and respondent No.4 filed their claims, in respect of the property of the deceased Sonda, which were duly verified alongwith that of the petitioners vide Fard‑e‑Haqiyat No.1126 by the Central Record Office, Lahore and was sent to District Sargodha for settlement, which was the original place of rehabilitation of respondent No.4, but as the entire claim could not be settled at Sargodha, the unsatisfied claim of respondent No.4, was sent to District Nawabshah, where she was allotted 195 acres of land situated in Delis Abji and Gejh of Taluka Naushero Feroze. The West Pakistan Muslim Personal Law (Shariat) Application Act (Act V of 1962), terminated all limited life estates, with immediate effect and the properties held as life estate reverted to the legal heirs of the last male owner, in accordance with Shariat, whereby 75 paisa share, in the property of the deceased devolved on the petitioners jointly, as the collaterals and 25 paisa on respondent No.4. It is averred that the petitioners did not hasten to get the mutation effected in their favour because of "intimate relations with respondent No.4," and subsequently the rule laid down in the case of Sher Muhammad v. Additional Rehabilitation Commissioner, Multan and 8 others PLD 1968 Lah. 234) came in their way, as it declared the widows to the full‑fledged ‑owners of life estate. In Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shari and others PLD 1971 SC 791 the above case of Sher Muhammad was overruled and it was held that the property allotted to the widow in lieu of her claim, would devolve on the heirs of the last male owner. In the case of Muhammad Yaqoob v. Member, Board of Revenue, Lahore PLD 1973 SC 304, it was declared that all the existing limited estates stood terminated with effect from 31‑12‑1962 and the devolution of the estate of the deceased male owner would be regulated under section 5 of Act V of 1962. According to the petitioners on declaration of the above law, they approached respondent No.4, who agreed that the mutation would be got effected in their favour to the extent of 75 paisa share in the said property and such joint request was made by the parties to respondent No.3, the Mukhtiarkar Naushero Feroze. Since the mutation order was already issued by the Rehabilitation Mukhtiarkar in favour of respondent No.4, respondent No.3 wrote letter dated 30‑4‑1973 to the Assistant Rehabilitation Mukhtiarkar for revalidation of mutation order, which was done, by endorsing thereon that the claimant was a limited owner and, therefore, she cannot alienate the land in any manner. According to the petitioners the so‑called `revalidated Mutation Order' was taken back to respondent No.3 for mutation of the record of rights in their favour to the extent of 75 paisa share, but the staff of the said respondent was busy in some other emergent work and respondents Nos.4 to 10 persuaded the attorney of the petitioners to go back to Punjab with the promise that the mutation would be got effected in favour of the petitioners. When the attorney of the petitioners came back from Punjab after about one year, he was informed that the needful was done and thereafter. the said respondent started paying 75 paisa share of the land produce to the petitioners and paid such share to them till 1982, when respondent No.4 suddenly refused to pay their share. After such refusal the attorney of the. petitioners on enquiry discovered that the mutation was initially made in favour of respondent No.4, who gifted 108‑24 acres of land in favour of respondents Nos.5 to 10 and mutation was effected accordingly. The petitioners after obtaining copies of necessary documents filed appeal under section 161 of the Land Revenue Act, 1967 before respondent No.2, which was dismissed by order dated 28‑12‑1982 and the revision application filed before respondent No.1? was dismissed by order dated 29‑8‑1983. Respondent No.5, who is also attorney of respondents Nos. 4 and 6 to 10, has filed his counter‑affidavit; in which he has denied all the allegations framed by the petitioners. It has been specifically pleaded that the land left behind in India, against which the claim of respondent No.4 was verified, belonged exclusively to the said respondent, and her husband had nothing to do with the said land. The claim was verified on the basis of Fard‑e‑Haqiyat received from India which was in her name. Mutation order was issued on 23‑7‑1969, on the basis of allotment order and the mutation in the record of rights was effected on 18‑3‑1972. The subsequent fraudulent endorsements in the mutation order were made by some clerk of the Rehabilitation Department without any notice to or knowledge of respondent No.4. The said respondents have denied the relationship of the petitioners with the late husband of respondent No.4. The land was allotted to respondent No.4 in the year 1958 and since then land revenue has been paid by her. , All other allegations made in the petition were also denied by the said respondents. In this petition the petitioners have assailed the aforesaid orders dated 28‑12‑1982 and 29‑8‑1983, passed by respondent No.2, the Deputy" Commissioner, Nawabshah and respondent No.l, Commissioner, Sukkur Division, respectively.. We have heard the learned counsel Mr. Syed Rasheed Ahmed for the petitioners and Mr. M. Sohail H. K. Rana for respondents Nos.5 to 10 and legal heirs of respondent No.4 None appeared for the official respondents. The learned Deputy Commissioner had dismissed the appeal wherein the mutation was made in favour of respondent No.4 on 18‑3‑1972 and the mutation in favour of respondents Nos.5 to 10 on 22‑5‑1974, on the basis of gift of the property, mainly on the ground that appeal was filed long after expiry of the mutation and that after repeal of the Evacuee Laws he was not competent to take any action in the matter. He also observed that respondent No.4 was alive and complicated and intricate questions of law and fact were raised which required detailed evidence and the Revenue Court had no powers to decide such controversies. The learned Commissioner also dismissed the revision application for the similar reasons. The learned counsel for the petitioners has mainly relied on the photostat copy of the mutation order which bears endorsements dated 3‑5‑1973 and a photostat copy of the so‑called pedigree‑table and has contended that respondents Nos.l and 2 ought to have cancelled the mutation entries as respondent No.4 was entitled to 25 paisa share from her late husband in the property left behind by the deceased, in accordance with the Shariat and the petitioners were jointly entitled to the remaining 75 paisa. Firstly we find that respondent No.4 has asserted that the property left behind in India was owned by her and the claim was verified in her name on such basis. The petitioners have not placed any documentary proof in rebuttal 'of the aforesaid stand taken by respondent No.4. In so far as the aforesaid endorsement on the photostat copies of the mutation order is concerned, it is not shown as to who had made the aforesaid endorsements. No copy of the order of any competent authority under the Displaced Persons (Land Settlement) Act XLVII of 1958 or the Scrutiny of Claims (Evacuee Property) Regulation, 1961 on the basis whereof the alleged endorsements were made, have been produced. The aforesaid endorsements, being of dubious nature, cannot be accepted moreso when the said endorsements also do not disclose that the same have been made on the basis of any order passed by any competent authority. The above endorsements read as under:‑‑ "(a) Limited owner. Not entitled to alienate this land." (b) Copy sent to Mukhtiarkar has been endorsed to the effect that the claimant is a limited owner and, therefore, cannot alienate this land in any manner." Had there been any specific order of any competent authority, the endorsements would have referred to such order. The said endorsements are laconic in nature and are not in conformity with the law. The learned counsel would have us to accept the aforesaid endorsements on the basis of the unattested photostat copy of the pedigree‑table placed on the record. The said document has no probative value and is extremely doubtful for want of authentication. Additionally, the said document is of no help to the petitioners, as respondent No.4 has claimed the ownership of the property left behind in India in her own right and not through her husband. Respondent No.4 has challenged the .above endorsements on the plea that the same were made without any notice to her. Nothing was placed on record to rebut the above plea of the respondents and for such reason also, the aforesaid endorsements are to be discarded as having been made in flagrant violation of fundamental principle of natural justice ‑‑‑audi alteram partem. It has been noted that the petitioners have made bold allegations in the petition, without substantiating them and have gone even to the extent that the claim was jointly verified in their names and respondent No.4 in respect of the property of the. deceased vide Fard‑e‑Hadiyat No.1126, which was sent to District Sargodha. Had it been so, the petitioners could have placed the copy of verification order on record. If the verified claim was issued in joint names, the property in dispute would not have been allotted to respondent No.4 alone. However, such assertion is belied by the admitted documentary evidence on record, namely, the Mutation Order, as originally issued, exclusively in the name of respondent No. 4 The appeal before respondent No.2 was filed by the petitioners after lapse of ten and eight jars of passing of the first and the second mutation orders respectively. It appears that no explanation for such delay was offered before respondent No.2. The excuses advanced in petition before this Court to indirectly explain the delay in seeking remedy, do not portray normal human conduct and are too naive to appeal to reason. The first explanation given is that the steps were not taken because of the law declared in the case of Sher Muhammad (supra) but the above authority was overruled in PLD 1971 SC

791. The petitioners at least could have agitated the matter immediately after 8 the announcement of the said judgment and in fact would have done so much earlier when the claim was verified in the name of respondent No.4 or at least when the mutation order was issued in year 1969. Even at that, the petitioners kept silent for over a long time and allegedly went back to Punjab on persuasion of the contesting respondents that the mutation would be got effected in their favour, although the mutation in favour of respondent No.4 was already effected in the year 1972. Under the above circumstances no exception can be taken to the impugned orders dated 28‑12‑1982 and 25‑9‑1983, passed by respondents Nos.2 and 1, respectively. The petition was, therefore, dismissed by us by short order dated 7‑12‑1992 and above are the reasons therefor. H.B.T./Z‑205/K?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.