2006 PLP 1748 (MLD)

MAULVI ANWAR UL HAQ, J.

On 22-12-1979, the respondents filed a suit against the petitioners. In the plaint, it was stated that the. State land was granted to Gulzar Hussain Shah son of Murad Ali Shah as an Army Grant. He died in the year, 1932. The respondents are the children of Shahmir, the brother of said Gulzar Hussain Shah. The land was mutated to Mst. Ghulam Zohran, the daughter of Gulzar Hussain Shah as a limited owner. It was further pointed out that Mst. Raza Bibi, the widow of the Gulzar Hussain Shah, contracted second marriage soon after the death of her husband. Mst. Ghulam Zohran died unmarried and issueless on 15-6-1973. Vide Mutation No.89 attested on 7-11-1973 the land was mutated in favour of Mst. Raza Bibi (1/3rd as mother) and the respondents (2/3rd). According to the plaint, Mst. Raza Bibi herself got the said mutation entered and attested. There was no dispute that Gulzar Hussain Shah was a Sunni. However, the lady questioned the relationship of the respondents with the said Gulzar Hussain Shah which was established. A time-barred appeal was filed by Mst. Raza Bibi. The Collector allowed the same and remanded the case on 12-2-1976. The Revenue Officer vide order, dated 6-11-1979 proceeded to pass the mutation on the presumption that Mst. Ghulam Zohran was a Shia. This mutation was stated to the illegal and void as Gulzar Hussain Shah was a Sunni and so was Mst. Ghulam Zohran and in any case the faith of Mst. Ghulam Zohran was not relevant. A declaration was accordingly sought. The petitioners, who are the children of said Mst. Raza Bibi from her second husband namely khan Shah, filed written-statement. They admitted that Gulzar Hussain Shah was the allottee but they denied that the respondents are the collaterals. It was urged that since Gulzar Hussain Shah was a Shia, his estate was transferred in favour of his daughter and as such she was the full owner. The written statement was amended later to plead that on the death of Gulzar Hussain Shah the land was first mutated in favour of widow Mst. Raza Bibi and upon her re-marriage it was mutated in favour of Ghulam Zohran as a full owner under Shia laws. Issues were framed. Evidence of the parties was recorded. The learned Trial Court found under issue No.6 that Gulzar Hussain Shah was a Sunni and not a Shia. However, under issue No.6-A it was found that Mst. Ghulam Zohran was a Shia. Under issue No.6 it was held that Mst. Ghulam Zohran was full owner of the suit-land and not a limited owner. The suit was dismissed. The respondents filed a first appeal which was heard by a learned Additional District Judge, Burewala. Now the learned Additional District Judge reversed the findings on issue No.6-B and held that Mst. Ghulam Zohran was a Sunni. However, he has stated in his judgment that Mst. Ghulam Zohran was a full owner. This abrupt finding is recorded in para.

22. In para. 23 he has proceeded to hold as follows: "On the death of Ghulam Zohran, therefore, her inheritance is to be mutated in accordance with the provisions of section 19-A of Act No. V of 1912 in the following manner:-- Ghulam Zohran as daughter getting 1/2 share. Raza Bibi as widow getting 1/8th share. The residue i.e. 3/8th share will go to Riaz Hussain Shah and Gulzar Hussain Shah, sons of Shahmir that is plaintiffs/appellants No.5 and

6. The plaintiffs/appellants Nos.1 to 4 will get nothing because they fall in the category of "distant kindred". Under the law a "distant kindred" could not inherit so long as any heir belonging to the "residuary" class is alive." The appeal was accordingly allowed and the suit was partly decreed in favour of respondents Nos.5 and 6 on 12-12-1991. This CR has been filed by the petitioners/defendants.

2. Learned counsel for the petitioners contends that the learned Additional District Judge has misread the evidence while holding Mst. Ghulam Zohran to be a Sunni. His further contention is that having held Mst. Ghulam Zohran to be the full owner the learned Additional District Judge has wrongly proceeded to divide the estate by treating it to be the estate of Gulzar Hussain Shah. Learned counsel for the respondents, on the other hand, supports the impugned judgment and decree of the learned Additional District Judge by attacking the said observation of the learned Additional District Judge that Mst. Ghulam Zohran was a full owner. According to him, once it has held that Mst. Ghulam Zohran as well as Gulzar Hussain Shah were Sunnis, it is the estate of Gulzar Hussain Shah which is to be distributed.

3. I have gone through the copies of the records. Now as noted by me above Gulzar Hussain Shah was held to be a Sunni. There is no dispute that he was the original tenant. Now section 3 of the Colonization of Government Lands (Punjab) Act, 1912 defines an original allotee to mean any male to whom the tenancy is first allowed by the Collector. Now under section 20 of the said Act, of 1912 upon the death of the original tenant, in the absence of male lineal descendants, the tenancy shall devolve upon the widow of the tenant until she dies or re-marries failing the widow tenancy to devolve upon the unmarried daughters of the tenant until they die or marry. I deem it appropriate to reproduce here section 21 of the said Act, 1912:--

21. Succession to tenants acquiring by succession:-- (1) When after the commencement of this Act any male tenant, who is not an original tenant, dies, or any female tenant dies, marries, or re-marries, the succession to the tenancy shall devolve:-- (a) In the ease of a female, to whom the tenancy has been first allotted, on the successor nominated by the Collector from the issue of such female tenant, or from the male agnates of the person, on account of whose services the tenancy was allotted to her, in all other cases, on the person or persons who would succeed if the tenancy were agricultural land acquired by the original tenant."

4. It will be seen that it is nobody's case that Mst. Raza Bibi or Mst. Ghulam Zohran were first allottees. Thus upon the plain reading of section 21 upon the death of Mst. Ghulam Zohran the tenancy was to devolve upon all the persons entitled to inherit Gulzar Hussain Shah, the original tenant on the assumption that he was the owner of the land comprised in the tenancy. This being so the learned Additional District Judge has certainly acted with material irregularity while stating in his Judgment that Mst. Ghulam Zohran was full owner in the said admitted state of affairs and the said legal position explained above. This being so, the land is to be distributed upon the opening of succession to the estate of Gulzar Hussain Shah on the death of Mst. Ghulam Zohran treating Gulzar Hussain Shah as to be the last male owner of land comprised in the tenancy. He was survived by a widow, a daughter and a brother. His widow will get 1/8th share out of the entire land, 1/2 shall go to his daughter Mst. Ghulam Zohran and the residue of 3/8th will go to Shahmir, who was alive at the time of the death of Gulzar Hussain Shah.

5. Now this leaves the said one half share of Mst. Ghulam Zohran. Now the burden of the issue was rightly placed upon the petitioners in view of the presumption in the sub-continent that every Muslim unless proved to the contrary shall be deemed to be a Sunni. I do agree with the learned Additional District Judge that the evidence led by the petitioners was not at all sufficient to rebut the said presumption and whatever oral evidence was led by the respondents was duly rebutted by the petitioners, I therefore, uphold his finding that Mst. Ghulam Zohran was a' Sunni. Having thus agreed with the learned Additional District Judge-quo the said findings, the said 1/2 share of Mst. Ghulam Zohran in the estate of her father shall be distributed as follows: Since it is admitted that Mst. Raza Bibi survived Mst. Ghulam Zohran, she will get 1/3rd of the 1/2 of estate, will go to Mst. Raza Bibi and consequently to the petitioners who are admittedly her children. Now the petitioners are also the uterine brother and sister of Mst. Ghulam Zohran, they will thus get 1/3rd share in her estate. Remaining 1/3rd will go to respondent Nos.5 and 6 being the sons of the brother of her father. Thus shares of the parties in the entire suit-land will be as under: (i) Plaintiffs/respondents = 13/24 (ii) Defendants/Petitioners = 11/24 The Civil Revision accordingly is disposed of with the said modification in the shares of the parties. The office to prepare decree-sheet accordingly. No orders as to costs. F.B./I-44/L Order accordingly.