1988 PLP 2084 (CLC)

Syed Shamim Abbas Bukhari for Respondents Nos. 2, 3, 4 and

5. Nemo for Respondent No.1. Dates of hearing: 31st October and 7th November, 1987. This Regular Second Appeal assails the judgment decree dated the 23rd of February, 1967 of the learned Additional District Judge, Sargodha, whereby the appellants‑plaintiffs' first appeal was dismissed. ,

2. The land in dispute was held by Dhuman Khan as an original horse‑breeding grantee. He had two wives, namely, Mst. Bhag Bhari and Mst. Raj Bibi. The former was the mother of the appellants while the latter was that of the respondent Sher Zaman. The appellants' case was that the father had made a family settlement of the land during his .lifetime whereby 103 Kanals out of the grant were allowed to them and their mother Mst. Bhag Bhari for maintenance on permanent basis whereas the remaining was transferred in favour of the respondent Sher Zamah in accordance with the rule of primogeniture. On the death of Mst. Bhag Bhari taking place on the 19th of October, 1964, the area held by her in lieu of maintenance was also transferred to the respondents by mutation No.376 of the 15th of January, 1965. It was claimed that since this area had been given to the appellants permanently on the principle of survivorship in pursuance of, the family settlement, they could not have been deprived of it.

3. The respondents contested that suit pointing cut that the grantee could not make any family settlement of the property without obtaining sanction of the Commissioner under section 19 of the Colonization of Government Lands (Punjab) Act, 1912, that it being' a horse‑breeding grant was not subject to the law of inheritance; that on the demise of the original grantee it had been specifically granted to Sher Zaman respondent in accordance with the rule of primogeniture; and that on determination of the grant the Government allowed him to acquire proprietary rights whereby he had become its full owner. He explained that the deceased‑widow was just accommodated by him ex gratis to apportion usufruct of a portion of the grant till her life or re‑marriage and that on her demise the grace for that matter the right of maintenance also expired. He added that even earlier, he was its exclusive grantee and that after termination of the grant by conferring ownership he was rightly shown as such by the impugned mutation. He categorically denied if any family settlement was made by Dhuman Khan. He equally denied to have ratified it after the death of his father.

4. It is not denied that it was a horse‑breeding grant. Obviously it was not subject to the rule of inheritance. The Scheme itself applied to it. Item 25 of the Scheme provides, inter alia, that such a grant shall be determined on the demise of the grantee. Applying this rule, on the death of Dhuman Khan taking place in 1921, the grant had terminated leaving no right whatsoever for his heirs to inherit. Neither section 19‑A, nor section 20, nor section 21 nor the rule of customary law will be applicable to, devolve it on various heirs of the deceased grantee. The land reverts back to the Government and it is at their sweet will to grant it afresh to anyone. This was the reason why after demise of Dhuman Khan it had been given only to his eldest son Sher Zaman respondent. This is what mutation No. 82 of the 3rd of July, 1922, shows. Of course, it reveals that a sort of maintenance was allowed to Mst. Bhag Bhari till her life or remarriage but no interest whatsoever was spared in the land for her sons, namely, the present appellants. Since it was a new grant, in favour of a new grantee, may be that he agreed to allow a share of produce to his stepmother but the same did not conform to any settled principle of inheritance. The respondent had already been shown to be exclusive grantee in the column of ownership of the Jamabandi and, therefore, to say that he had alienated this portion on permanent basis for all times to come in favour of the lady on the principle of survivorship was indeed a misnomer. Subsequently in 1942 when proprietary rights were allowed to such grantees, the respondent had purchased the entire land including the portion reserved for the deceased lady.

5. There is nothing to contend against the above analysis of the entire situation. It did not require any evidence, in that a settled Scheme was applicable to the grant. On the expiry of the original grant, the Government had allotted afresh although to the eldest son of the old grantee yet conferring no vested right in favour of any heir. The eldest son over the period became the full owner on payment of compensation and thus, neither the stepmother nor the stepbrothers could at law enforce any right against him. The concurrent views adopted by the Courts below are unexceptionable.

6. There is no substance in the R.S.A. and the same is dismissed. H.B.T./S‑142/L Appeal dismissed.