2004 PLP 1555 (SCMR)

MUNIR A. SHEIKH. J.

The petitioner seeks leave to appeal against the judgment of the Lahore High Court, Lahore, dated 11-3-2002, whereby Civil Revision No. 1160-D of 1991 filed by the petitioner, has been dismissed. The dispute relates to land allotted to Mst. Kaily, a displaced person from India, against her verified claim. The claim was filed by the petitioner and the land was allotted to him in lieu thereof. The plaintiffs /respondents filed suit for declaration that Mst. Kaily was holding life estate in India after the death of her father Gulab, as such, she was a limited owner of the land in India, therefore, they were entitled to inherit the allotted land, as her legal heirs to the exclusion of the petitioner. It appears that all the Courts below assumed as if the dispute between the parties was .as to whether Mst. Kaili was full owner of the land to India or she was holding life estate. Learned counsel for the petitioner submits that the petitioner does not claim to be the heir of Mst. Kaili, whether she was full owner or limited owner. His ease as observed in the impugned judgment of the High Court was as: to whether the entire land subject matter of the suit was allotted to Mst. Kaili in lieu of her claim or any part thereof was the land owned by the petitioner in his own rights, for, according to the documents placed on record, in particular, the Jamabandi, it appears that a number of mutations had been sanctioned, for, mutation of land in favour of the petitioner. As to which mutation relates to land allotted in lieu of claim of Mst. Kaili, nothing is available on record. None of the Courts below has given any finding as to Whether the entire land subject matter of the suit was allotted to Mst. Kaili against her claim or it was less than that. Learned counsel for the petitioner frankly conceded that in presence of the plaintiffs/respondents the petitioner has no right to inherit the land owned by Mst. Kaili and his only grievance is that the land allotted to Mst. Kaili in lieu of her claim about land left in India was not the entire land which is subject mater of the suit. The land now subject matter of the suit also includes the land owned by the petitioner in his own rights, therefore, a finding should have been given on this aspect of the case which was duly raised in the High Court but was not given consideration on the ground that no specific plea to that effect, was raised in the pleadings. After going through the record, we find that this question as per entries in the Revenue Record should be gone into to do complete justice, for, the plaintiffs themselves claimed to be entitled to inherit that land which was allotted against her claim. Learned counsel for the respondents submitted that according to the respondents the entire land which is subject matter of this suit was the land allotted to Mst. Kaili against her claim, and no part of it was owned by the petitioner in his own rights independently. Be that as it may since it requires further investigation and recording of evidence, therefore, the case has to be remanded. For the foregoing reasons, this petition is converted into appeal, it is allowed, the judgments and decrees passed by the Courts below are set aside and the suit is remanded to the trial Court to decide the same after recording further evidence, whether any part of land in dispute is owned by the petitioner in his own rights and no part of land allotted against claim of Mst. Kaili. The onus to prove it is on the petitioner. If he produces any evidence in support thereof the plaintiff, shall be afforded opportunity of producing evidence in rebuttal. In case, it is found that the land allotted to Mst. Kaili against her verified claim was not the entire land which is subject mater of the suit the trial Court shall determine with exactitute with reference to the area allotted to Mst. Kaili against her claim and decree the suit only for the said portion of the land and dismiss the same regarding the other for as a consequence of such finding of the present petitioner shall be deemed to be owner in leis own rights. The evidence already recorded in the case shall be read in the remanded suit and the parties shall be provided opportunity to lead further evidence regarding the above matter for which the case has been remanded. There will be no orders as to costs. M.H./U-25/S Case remanded.