1998 PLP 273 (SCMR)

ZIA MAHMOOD MIRZA, J.

Both the captioned petitions are being disposed of together as they are directed against a common judgment of the Lahore High Court, dated 11-6-1996 dismissing the two connected Writ Petitions Nos.63-R and 64-R of 1994 filed by the petitioners.

2. Facts forming the background of these petitions are as follows:-- One Ahmed Hasan son of Kalo husband of Mst. Noor Bibi petitioner No. l owned 167 Kanals 18 Marlas of land in village Bangi, Tehsil Bhathanda, District Barnala (Patiala State). He died in India and his land was mutated in favour of his widow Mst. Noor Bibi as limited owner. It appears that after the death of Ahmed Hasan, Mst. Noor Bibi married her deceased husband's brother Jamal Din who, too, is stated to have died on the eve of partition of the sub-continent. After partition, Mst. Noor Bibi migrated to Pakistan and submitted her claim for the agricultural land left by her in Inida. Her claim was verified by the Central Record Office and on the basis of the Fard-i-Haqiat issued to her, - she obtained allotment of some land in village Nazar Labana, Tehsl Ferozwala, District Sheikhupra. She then transferred the land allotted to her by way of gift to her brothers Shah Muhammad and Muhammad Aziz, petitioners Nos.2 and 3 vide Mutation No.737 sanctioned on 30-11-1962. Inheritance of Jamal Din, second husband of Mst. Noor Bibi, also devolved upon her vide Inheritance Mutation No.738 dated 22-1-1963. The land inherited from Jamal Din, too, was gifted by Mst. Noor Bibi in favour of her brothers, petitioners Nos.2 and 3 vide Mutation No.741 sanctioned on 22-2-1963.

3. Respondents Nos.2 to 15 herein claiming to be the collaterals of Ahmed Hassan and Jamal Din preferred appeals against the orders of the Revenue Officer sanctioning the mutations aforementioned. It was claimed by the respondents that Mst. Noor Bibi possessed only a limited interest in the property of Ahmed Hassan and as such she could not gift away that property to her brothers. As regards the property of Jamal Din, case of the respondents was that Mst. Noor Bibi had no claim whatsoever therein and in any case, she was at the most entitled to inherit only 1/4th share under the Shariat Law. In support of their contention, they produced a copy of the pedigree-table received from India duly attested by the Central Record Office. Respondents' appeals were, however, dismissed by the Collector vide order dated 27-8-1963 holding that according to the pedigree-table verified by the Central Record Officer only Mst. Noor Bibi was shown as the nearest relative of the deceased. It was observed by the Collector. "The onus to prove that Mst. Noor Bibi was not the widow of Jamal Din was on the appellants which they have failed to discharge. They have not been able to show that Mst. Noor Bibi was not the widow of Jamal Din deceased."

4. Feeling aggrieved, the respondents filed revision petitions but with no better result as the same were rejected by the Additional Settlement and Rehabilitation Commissioner vide order dated 11-1-1964 holding that the respondents had failed to substantiate their claim that they were the collaterals of the deceased. Respondents then took the matter in the High Court in a Constitutional Petition (W.P. No.808-R of 1964). During the hearing of that writ petition, however, case as regards the property of Ahmed Hasan deceased was not pressed in view of the judgment of the Lahore High Court in the case of Sher Muhammad v. Rehabilitation Commissioner, Multan (PLD 1966 Lahore 234) wherein it was held, "a widow registering a claim under the Punjab Refugees (Registration of Land Claims) Act (V of 1949) does so as an owner within the purview of para. 2, Chapter II Part I, Rehabilitation and Settlement Scheme, in her own right and not on behalf of the reversioners and on confirmation of the allotment she becomes vested with heritable and transferable right and that the collaterals of the last male owner have no control on her power of disposition". Mutation No.737 was accordingly upheld. Writ Petition was, however, accepted with respect to Mutations Nos.738 and 741 mainly on the ground that the pedigree-table certified copy of which was produced by the respondents/writ petitioners was overlooked by the Settlement and Rehabilitation Authority. Case was, therefore, remanded to the Settlement Commissioner to the extent of Mutation No.738 with the direction to determine the question whether the respondents were the heirs of Jamal Din deceased and were eligible to inherit his property. Question whether Mst. Noor Bibi was the widow of Jamal Din was, however, not reopened as the finding of the Settlement Authorities in that behalf was not disturbed. It was made clear that the question as to the validity of mutation of gift (Mutation No.741) shall abide the decision of the question regarding the inheritance Mutation No.738. Writ petition was thus disposed of by the learned Judge in Chambers vide judgment dated 18-1-1971.

5. Judgment of the learned Single Judge was challenged by both the parties in two separate appeals viz L.P.A. 22 of 1971 filed by the respondents herein and L.P.A. 207 of 1971 filed by the present petitioners. Both the appeals were heard together and disposed of vide orders dated 24-3-1991. L.P.A. 22 of 1971 was accepted and the order of the learned Single Judge regarding the validity of Mutation No.737 was set aside on the short ground that the judgment in the case of Sher Muhammad v. Additional Rehabilitation Commissioner had been overruled by the Supreme Court of Pakistan in Muhammad Yaqub v. Member, Board of Revenue, Lahore and 3 others (PLD 1973 SC 304). Case as regards the validity of Mutation No.737 was remanded to be re-examined by the Settlement Commissioner. It appears that in view of the acceptance of L.P.A. 22 of 1971, the other Appeal (L.P.A. 207/71) was withdrawn and the same was accordingly dismissed. Resultantly, the matters relating to both the mutations viz. Mutation wo.737 and Mutations Nos.738/741 were remanded by the learned Judges of L.P.A. Bench for fresh decision by the Notified Officer/Settlement and Rehabilitation Commissioner, Sargodha.

6. Petitioners challenged the aforementioned order of the Settlement Commissioner in two Constitutional Petitions (W.P. 63-R of 1994 and W.P. 64-R of 1994) which, as stated above, have been dismissed vide the impugned judgment. The learned Judge in Chambers repelling the argument raised on behalf of the petitioners that in the post-remand proceedings- the Notified officer did not hold proper inquiry as he did not record the statement of the Patwari nor gave an opportunity to the petitioners to cross-examine him and to produce further evidence, observed that the Notified Officer was not required "to follow the procedure for recording of evidence as provided under the Code of Civil Procedure and the Evidence Act". The learned Judge proceeded to hold that keeping in view the nature of the dispute to resolve which the case was remanded to the Notified Officer, the latter was right in deciding the matter on the basis of the entries in the pedigree-table original whereof was produced by the Patwari. It has also been observed by the learned Judge that as the Patwari had only produced the record, "there was no occasion to have provided an opportunity to cross-examine him or to record his statement. Even otherwise, the petitioners also did not claim opportunity to cross-examine him or to get his statement recorded or to produce any other evidence in support of their case as is clear from the impugned order. No such prayer or application was made before the Notified Officer, therefore, at this stage they cannot be heard in support of the plea that while holding of the inquiry, the Notified Officer did not allow them an opportunity to cross-examide the Patwari or to produce witnesses in support of their case".

7. Learned counsel appearing in support of these petitions reiterated the contention pressed before the learned Judge in the High Court which contention, in our view, has been repelled rightly and for good reasons. It was not denied by the learned counsel that the Patwari had produced the original pedigree-table but he questioned its correctness and contended that its entries were tampered with. Learned counsel was unable to refer to anything on the record to substantiate his allegation. We find from the order of the learned Settlement Commissioner dated 27-1-1994 that the validity of the pedigree-table was also challenged before him but the officer found and found rightly that the petitioners could not substantiate their contention. It was observed by the learned Settlement Commissioner that an oral assertion was not sufficient to discredit the authenticity of a document which was officially prepared long time ago and was produced by the official of the Central Record Room. It was noted by the officer that the pedigree-table in question "was prepared in India and was transferred to Central Record Room, Lahore, after 1947 and has been kept there since then in safe custody". The officer further proceeded to hold that the document in question was admissible in evidence and it carried the presumption of truth "until and unless it is proved to be forged or fabricated one. It may be mentioned that this pedigree-table was produced even before the lower Courts but this was summarily ignored. The High Court took a due notice of this pedigree-table and it was on this account that the case was remanded for fresh decision. I agree with the learned counsel for the petitioners that in the instant case where petitioners had to prove their link with the deceased husbands of Mst. Noor Bibi through their common great grandfather, they could not have produced any other evidence except the pedigree-table which alone should be deemed a sufficient evidence for proving this fact". The reasoning of the learned Settlement Commissioner for relying upon the pedigree-table produced before him is very sound and unexceptionable. Learned counsel was also unable to show that the document in question was misread or misconstrued by the learned Settlement Commissioner. That being so, the findings recorded by the learned Settlement Commissioner were not open to any exception.

8. Upshot of the above discussion is that the impugned judgment of the High Court does not call for any interference by this Court. Both the petitions are accordingly dismissed. A.A./N-2/S Petitions dismissed.