1980 PLP 1361 (CLC)

(iii) Whether the present appellants are Muslim Law heirs of Nizam Din deceased entitled to 3/4tb share out of the suit land ?

4. As regards question No. 1, a reference to section 5 of the Dis placed Persons (Land Settlement) Act (XLVII of 1958) as amended up to date will be helpful to arrive at a just conclusion. Section 5 reads as under ;

"Section

5. Compensation pools.-(1) For the purpose of granting compensation to displaced persons whose claims have been verifies one or more compensation pools consisting of the following shall be constituted, that is to say :-- (a) Land which has been acquired under section 4, including the pro ceeds of sale by auction or otherwise of such land ; (b) Sale proceeds of any land lying with the Custodian, compensation paid or payable to the Custodian by the Central or Provincial Government on the acquisition of land under any other law for the time being in force, and consideration money paid or payable to him on confirmation of-the sale of land ; (c) Government land allotted for Rehabilitation purposes and exchang ed with land with the consent of the Government concerned ; (d) rents realized from land ; (e) all profits and income derived from any land lying with the Cus todian, the Central or Provincial Government or any other authority ; (j) Any other amount received or recoverable in respect of land, and (g) Sale proceeds referred to in clause (b) of section 13 provided that land attached to Charitable; Religious or Educational trusts or institutions shall not form part of any pool constituted under this section. (2) If a question arises whether any land is attached to a Charitable, Religious or Educational trust or institution or not, it shall be referred to the Chief Settlement Commissioner whose decision there on shall be final and shall not, except as provided in subsection (3) be questioned in any Court. (3) Any person aggrieved by an order under subsection (2) may, within 30 days of such order, prefer an appeal to the High Court."

5. A careful perusal of section 5 supra shows that the Compensation Pools as envisaged by section 5 were created for the purposes of granting compensation to displaced persons whose claims had been verified. The occupancy rights in dispute were never owned and possessed by the non muslim evacuees but in fact were left by Nizam Din a Muslim, as a legacy to be devolved upon his own hers enumerated in section 59 of the Punjab Tenancy Act. Moreover the rights in suit could not be allotted to the refugee claimants in lieu of their verified claims under the Rehabilitation Settlement Scheme wherein para. 4-A clearly bars the allotment of such land. Para. 4-A of the Rehabilitation Settlement. Scheme reads as under:

"4-A. The following categories of land will not be allotted under the Rehabilitation Settlement Scheme and will remain excluded from the Scheme (i) urban land ; (ii) land mortgaged with possession by evacuees in favour of Muslim mortgagees except where a claimant is prepared to secure an allot ment of such land in its encumbered state without demanding any additional compensation on account of such an encumbrance ; (iii) land attached to evacuee charitable, religious and educational trusts ; (iv) land reserved for expansion of village abadis and other public 'purposes ; (v) deleted ; (vi) deleted ; (vii) deleted ; (viii) evacuee land under Muslim Occupancy tenants ; and (ix) land allotted on temporary basis to Jammu and Kashmir refugees."

6. Moreover para. 7(c) of the Displaced Persons (Land Settlement) Rules, 1959 further lays down that the permanent settlement, i.e. conferment on a displaced person of any permanent rights in, or title to, any land under this Act whether such right or title be proprietary, occupancy tenancy or of any other kind shall be made only to the extent of the rights or interests abandoned by the evacuees and the rights or interests of any non-evacuee in the land shall not be affected. The crux of the whole discussion there fore is that Nazim Din who held the occupancy rights in dispute in the land owned by the non-Muslim evacuees could not have been held by any stretch of imagination to be a part of compensation pool constituted under the evacuee and Settlement Laws. The disputed rights were owned and possessed by a Muslim occupancy tenant and hence were subject to the ordinary jurisdiction of the civil Courts under section 9 of the C. P. C. The learned trial Court was perfectly justified in holding that the jurisdic tion of the civil Court is not barred and effective decree can be passed regarding the Muslim occupancy rights in question. The finding of the learned lower Appellate Court does not represent the correct appraisal of law and fact on the point and in fact suffers from a patent legal error, which is hereby reversed. I therefore hold that civil Court was fully competent to adjudicate upon the matter in dispute. SECOND POINT:

7. It is a common case of the parties that Mst. Resham Bibi inherited the entire suit land on the death of her husband namely Nizam Din exclusively. Nizam Din undisputedly died issueless in 1945 leaving behind his widow and the succession devolved upon Mst. Resham Bibi his widow under section 59(i) (b) of the Punjab Tenancy Act, 1887 with an extremely restricted right of alienation for a term not exceeding one year. The next question which arises for consideration is whether Mst. Resham Bibi the widow succeeding to her husband under unamended section 59 of the Punjab Tenancy Act of 1887, had acquired the full right of ownership in an occupancy holding to the exclusion of other Muslim Lave heirs of her husband. The question came for consideration before the Supreme Court in Rab Nawaz v. Jahana (P L D 1974 S C 210) wherein it was laid down that from the legis lative history of the unamended section 59 of the Punjab Tenancy Act, 1887 coupled with the mandatory provisions contained in subsection (3) against any transfer, whatsoever for a period exceeding one year it would be reasonable to infer that under the amended section 59, the widow and the widowed mother were given what in essence appeared to be an exten sion of their right for maintenance. In other words a special estate was interposed for a limited purpose between her husband and his male collaterals in the absence of his male lineal descendants. In Abdul Aziz and another v. Muhammad Khan and others (P L D 1960 Lah. 427), a Division Bench of this Court in its decision held as under :- "True, there is finding against the appellant on the question of custom, but that too will not establish that Mst. Hussain Bibi was not prescribing for a limited title. She could only have been allowed to succeed on the assumption that parties were governed by custom like their agriculturists neighbours. Her succession could not possibly have been under Muhammadan Law because in that case she could not succeed to the whole of the land which was left by her son."

8. The contention of the learned counsel that Mst. Resham Bibi deceased widow was holding a full estate has no force in the light of the above discussion and I, therefore, hold that she had succeeded to the suit land on usual life tenure as a conduit pipe to pass it on to the heritable heirs of her deceased husband namely Nizam Din on the termination of her limited interest. THIRD POINT

9. This significant point in this case was thoroughly dealt with by the learned Civil Judge in his judgment after considering the documentary evidence produced on the file. He came to the conclusion that the plaintiff and the defendant No. 3 in the original suit have been proved to be the collaterals of Nizam Din deceased original tenant and were entitled to inherit 3/4th share to the suit land but the Learned Additional District Judge sitting in appeal upset the aforesaid finding without assigning any cogent reason. I myself have gone through the entire documentary evidence adduced by the appellants in support of their contention with the assistance of the learned counsel for the parties. A careful perusal of Exh. P. 1, Exh. P. 4 and Exh. P. 11 clearly helps in connecting the appellants with Nizam Din deceased through Fateh Muhammad or Fateh Din common ancestor. The learned counsel for the respondents could not point out any flaw in such connection borne out by entries of these documents which bear a presumption of truth under the Land Revenue Act. Moreover Muhammad Latif D. W. 3, a supporting defendant and Mushtaq Ahmed one of the plaintiffs-appellants fully corroborated the aforesaid entries of documentary evidence. On the other hand the defendants miserably failed to produce any evidence in rebuttal. Even, appearing as his own witness the defendant did not utter a word about the ancestory traced by the plaintiffs-appellants. As the finding of the learned Appellate Court on Issue No. 6 is based upon misleading, non-reading and mis construing the evidence adduced by the appellants in support of their claim, the same does not hold good and is liable to be interfered with in the second appeal. I, therefore, reverse the finding of the learned lower Appellate Court on Issue No. 6 and maintain that of learned trial Court.

10. The upshot of the above discussion is that the appeal is accepted. The judgment and decree of the learned lower Appellate Court is hereby quashed the judgment and decree of the trial Court is maintained. Resultantly the suit of the appellants is decreed to the extent of 3/4th share of the suit land with this clarification that the impugned gift shall be treated void only to the extent of 3/4th share qua the rights of the appel lants but will remain intact in favour of donee respondents Nos. 1 and 2 to the extent of 1/4th of the suit property. The parties are left to bear their own costs. S. Q. Appeal accepted.