1976 PLP 15 (SCMR)

MUHAMMAD AFZAL CHEEMA, J.

The petitioners and respondents 2 to 4 are descendants of a common ancestor Jhanday Khan, a resident or' Hissar District in India. Jhandey Khan was the original grantee of Sukh Lambri grant, which was a special type of grant of land made to troopers and Officers of a Rdgt. of irregular cavalry who had rendered service during the pindari campaign 'in 1818‑19 to Hissar District. From a perusal of the conditions of the grant placed on the record, it appears that the grant was for three lives and not three generations and after its lapse under Condition No. 4, proprietary rights had to vest in all the heirs of the original grantee and not only those of the last holder. The heirs were to be determined in accordance with the law applicable at the time of lapse of the grant. Although apparently, the expressions lapse of grant and the subsequent vesting of proprietary rights as used in Condition 4 are mutually contradictory, it appears that the word "lapse" was used in the context of the expiry of the rent‑free tenure for three lives after which proprietary rights were to vest in the heirs of the original grantee subject to payment of land revenue.

2. For a proper appreciation of the precise time of the expiry of the grant which extended to three lives and the determination of the terminusa quo of the conferment of proprietary rights and the heirs entitled thereto, one has to inevitably fall back upon the undisputed pedigree‑table of the parties which is as follows :‑‑ Jhanday Khan ??????????????????????????????????????????????????????????????????????? | ??????????????????????????????????????????????????????????????????????? | Khuda Bakhsh ??????????????????????????????????????????????????????????????????????? | ??????????????????????????????????????????????????????????????????????? | ?????????????????????????????????? _________________________________ ??????????????????????????????????? |????????????????????????????????????????????????????????????? |???????? ??????????????????????? Imam Din???????????????????????????????????????????????????????? Bholu ??????????????????????????????????? |????????????? ????????????????????????????????????????????????| ??????????????????????????????????? |????????????????????????????????????????????????????????? Muhammad Shafi ????????? _______________________??????????????????????????????????????? alias Leelu ????????? |???????????????????? |????????????? ???????|????????????????????????????????????????????? | Shahabuddin???? Zakauddin??????? Azizuddin???????????????????????????????? ??? |? ???? Respdt. 4???????? Respdt. 3???????? Respdt. 2???????????????????? Muhammad Siddiq ??????????? Petitioner.

3. The dispute in the case relates to the devolution of the land allotted in lieu of the grant which is claimed by the petitioner to the exclu?sion of the respondents. The first round of litigation between the parties ended with a remand order made by a learned Judge of the Lahore High Court in Writ Petition No. 181‑R of 1961 filed by the respondents. The Settlement Authorities set aside the original allotment order exclusively made in favour of the petitioner and allotted a portion of the land in favour of the respondents to accordance with their share of inheritance. The petitioner unsuccessfully challenged this order in writ jurisdiction in first instance and then filed an L. P. A., which too was dismissed vide order dated 1‑11‑1974, from which leave to appeal is sought in this petition.

4. A perusal of the L. P. A. order shows that the petitioner claimed the entire land solely on the basis of his possession adverse to the Govern?ment which could mature into ownership‑rights only after the lapse of 60 years subject of course to the fulfilment of other essential legal require?ments. On his own showing the petitioner's possession was not more than a period of 25 years immediately preceding the establishment of Pakistan and as such the grounds of adverse possession against the Government was not available to him. Consequently, his L.P.A. was dismissed vide order dated 1-11-1974.

5. In support of the petition, learned counsel contended before us that the learned Judges in the High Court had over‑simplified the matter when they referred to the ground of adverse possession as the sole basis of the petitioner's claim. Learned counsel further contended that even if the respondents 2 to 4 were also found to be entitled to a share in the grant a heirs of the original grantee, the petitioner having been exclusively in possession of the entire land since 25 years immediately preceding the' establishment of Pakistan was entitled to claim allotment of land in lieu of the entire grant, to the exclusion of the respondents on the basis of his adverse possession. This contention is obviously misconceived inasmuch as possession of one co‑sharer will be deemed to be the possession on behalf of all the co‑Sharers.

6. However, we find that in its judgment, the High Court has not referred to Condition No. 4 of the Conditions of Grant which alone is relevant for the determination of the rights of the parties in the land in question Accordingly, we grant leave to examine as to whether the final order of the Settlement Authorities upheld by the High Court in writ jurisdiction and L. P. A. proceeds on a correct interpretation of Condition No. 4 referred to earlier. Security Rs. 1,000 as costs. Stay order to continue on the same conditions. Leave granted.