1983 PLP 221 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑‑This petition for leave to appeal is directed against the judgment of the Lahore High Court, Rawalpindi Bench, dated 30‑9‑81 passed in R. S. A. No. 617/80.

2. The dispute between the parties relates to land measuring 218 kanals 9 marlas situate in village Kabail, Tehsil Gujar Khan, District Rawalpindi which was originally owned by Karam Khan (deceased) which devolved, on his demise, in equal shares on the present petitioner and Ali Bahadur his real son. Ali Bahadur died issueless in 1941 and the respondent is his window. In 1942 she filed a suit for partition in respect of the land in question. The petitioner also filed a suit in the same year praying for a declaration that Mst. Shah Begum, respondent was not entitled to seek partition of the land, and as consequential relief', sought permanent injunction restraining her from taking possession of any portion of the suit land. The litigation between the parties came to an end by a compromise deed effected in March, 1943. An area measuring 77 kanals and 15 marlas was given to Mst. Shah Begum and she surrendered 4 acres in petitioner's favour. In the suit filed by the petitioner the compromise deed mentioned the same facts with the conditions that respondent had waived her claim on all other estate of deceased Ali Bahadur and that she will only have life interest in the land measuring 77 kanals and 15 marlas with no power to alienate or encumber the property.

3. In 1962 the Shariat Law of Inheritance was enforced. Consequently the revenue authorities sanctioned Mutation No. 254 on 22‑5‑1964 whereby respondent was treated as limited owner' and out of 77 kanals 15 marlas 1/3rd was mutated in the name of Mst. Imam Bibi (mother of petitioner and Ali Babadur deceased). l; 4th of the land in favour of the petitioner and 5/12th share was mutated in favour of the respondent.

4. The respondent filed a suit challenging Mutation No. 254 and claimed 1/4th share in the entire estate of deceased Ali Bahadur and she claimed to be owner in possession of 77 kanals and 15 marlas, and if for any reason, she was not treated an owner of the said land, then she claimed ownership over land measuring 27 kanals and 6 marlas and as consequential relief she claimed permanent injunction against the petitioner from interfering with her possession. The petitioner did not offer resistance to the suit of the respondent in so far as the main reliefs claimed by her were concerned. He even relied on the earlier compromise and prayed for dismissal of the suit for want of cause of action. The learned trial Judge framed the following issues: (1) What is the effect, if any, of Act, 1962, on rights of plaintiffs? O. P. P. (2) What were terms of previous agreement between the parties and what is its effect on the present suit? (3) Whether the suit is improperly valued for the purposes of court fee? and held that the compromise deeds recorded in the earlier suits `must give way to and yield before Act V of 1962' and consequently, declared the respondent to be owner of 1/8 share of land measuring 218 kanals and 9 marlas i. e. 1 /4 share of deceased Ali Bahadur. Petitioner's appeal before the District Judge failed on 16‑4‑1980 and his R. S. A. was dismissed by the Lahore High Court on 30‑9‑81.

5. Learned counsel has now contended before us that .the compromise deed entered into by the parties was duly implemented and acted upon for more than 40 years; that none of the parties unilaterally could resile from it when the other party viz. the petitioner, had not been guilty of breach thereof and that the respondent was merely entitled to maintenance and in law she could not move the Court for any relief.

6. We do not see any substance in the above arguments. None of the Courts below had given the finding that the respondent's rights were confined to maintenance. On the other hand the pleadings of the parties unmistakable reflect that the respondent had life interest. The mutation which the appellant/petitioner is endeavouring to defend was also sanctioned on the assumption that she bad limited estate under the custom which terminated under section 3 of Act V of 1962, and his claim that he bad become absolute owner of the land is ill‑founded. In the year 1942 the parties were governed by the customary law and on the termination of the life estate after the enactment and application of Shariat Act the entire inheritance had to b reope3ned~a Thus the petition, is without merit" and is accordingly dismissed. Petition dismissed.