2002 PLP 1694 (YLR)

____________________________________________________________________ | | | | Shahid Najeeb Saeed Masud Iqbal Iqbal Iqbal Iqbal,

2. Upon the death of Mst. Janat Khatoon, she was represented by petitioners Nos. 1 to 11.

3. The plaintiffs in their suit contended that the above mentioned predecessor‑in -interest of the parties was owner of agricultural land and residential property in District Jhullunder, (India). Claim No.5425 was accepted from the Central Record Office, Lahore on 24‑10‑1959. Meher Ahmed Bux had earlier died in 1952 and Abdul Rehman, Ghulam Ali and Ghulam Nabi sons of Ahmed Bux got themselves registered as the only legal heirs of the said predecessor‑in‑interest to the exclusion of the petitioners who were the daughters of the said Ahmed Bux. It was thus contended that the act of defendants/respondents in having got transferred the agricultural land and the residential property mentioned in the plaint exclusively in their favour was illegal and that the petitioners were entitled to 2/9 shares in the land as well as the residential property. Hence the suit for separate possession to the above extent. The original suit was also tiled by Mst. Marium Bibi another daughter of Meher Ahmed Bux. However, the said plaintiff was later deleted by the order of the trial Court and was transposed as defendant.

4. The defendants contested the suit on the ground that the Civil Court had no jurisdiction; that the suit was barred by time; that the plaintiffs were estopped by conduct to bring the suit and that the suit property was not properly described in the plaint. On merits it was denied that the plaintiffs were entitled to any share in the property transferred in favour of the defendants.

5. From the pleadings of the parties, following issues were framed:‑‑ (1) Whether this Court has no jurisdiction to try the suit? OPD. (2) Whether the suit is barred by time? OPD. (3) Whether the plaintiffs are estopped by conduct from bringing the suit? OPD. (4) Whether plaintiffs have locus standi and cause of action to bring the suit? OPP. (5) Whether suit is not correctly valued for court‑fee and jurisdiction, if so, its correct valuation for the both? OPD. (6) Whether suit land is not properly described if so, its correct description? OPD (7) Whether suit is bad for misjoinder of parties? (8) Whether defendants are entitled to special costs, if so to what extent? OPD (9) Whether plaintiffs are legal heirs of Ahmad Bakhsh deceased and entitled to inherit 2/9 share of the property left by the deceased? OPD. (10) Whether plaintiffs are entitled to possession of property falling in their shares? OPP. (11) Relief.

6. After recording evidence the learned trial Court found that the civil Court had no jurisdiction; that the suit was barred by time and that the plaintiffs are estopped to file the suit. On merits although it was acknowledged that the plaintiffs were the daughters of Meher Ahmed Bux, it was nonetheless found that they were not entitled to any share in the suit property as the suit property was transferred to the defendants against the claim filed by the defendants. It was held that the plaintiffs themselves did not file any claim and therefore, they had no right to the property in the suit. Resultantly, vide judgment and decree dated 24‑1‑1988 the suit of the plaintiffs was dismissed by the learned trial Court.

7. The petitioners preferred an appeal. The respondents also filed cross‑objections before the learned appellate Court. The appeal and the cross‑objections were heard by a learned Additional District Judge, Rahimyar Khan and vide judgment and decree, dated 11‑7‑1991, the appeal of the petitioners was dismissed while the cross‑objections were partly accepted. The learned appellate Court also found that although Meher Ahmed Bux was the owner of the property which he left behind in Jhullunder in respect of which the petitioners were also entitled to file independent claim, but as they failed to do so they were not entitled to any share in the property, which was transferred to the respondents for which the respondents have filed their claim, albeit in lieu of the property left by their deceased father in India.

8. Ch. Masud Ahmed Bajwa, Advocate for petitioners has challenged the findings of the learned lower Courts on the ground that admittedly the petitioners are the legal heirs of Ahmed Bux. He submitted that the original claim was settled in the name of Ahmed Bux and the petitioners being his descendants were entitled to their share in accordance with law and the mere fact that the respondents had deliberately omitted their names would not exclude the petitioners from claiming their rightful share in the suit property. He further stated that the petitioners were ladies who have been deliberately excluded from the list of descendants of Meher Ahmed Bux by the respondents and thus were deliberately deprived of their share.

9. On the other hand, Mr. Habib‑ur- Rehman Ansari, Advocate for the respondents contended that a claim by itself is not a heritable property to which the petitioners could succeed in accordance with law of inheritance. Referring to section 5 of the Registration of Claims (Displaced Persons) Act, 1956, he contended that a displaced persons may within such time and in such form and manner as may be prescribed submit his claim to a Registering or an Additional Registering Officer. According to the learned counsel the said claim is processed by a Claims Officer or a Deputy Claims Commissioner who after taking such evidence as he may deem necessary, pass such orders as he thinks fit in relation to‑the verification of the claim and its valuation.

10. The learned counsel for the respondents to support his contention that a claim is not heritable has placed reliance on the case of Syed Abdul Rashid v. Pakistan and others (A.P.R. 1962 SC 13) and also on the case of Mst. Zainab, v. Mst. Raji and others (PLD 1960 SC (Pak.) 229).

11. It was also contended by him that as the suit property has been permanently transferred in favour of the respondents under the provisions of Displaced Persons (Compensation arid Rehabilitation) Act, 1958 and the Displaced Persons (Land Settlement) Act, 1958, the civil Court shall have no jurisdiction in the matter. For this proposition, reliance has been placed upon the case of Ahmed Din v. Muhammad Shafi and others (PLD 1971 SC 762), Sher Bahadar Khan v, Qazi Islamuddin and others (1984 SCMR 213) and Muhammad Yaqoob and others v. Nazar Khan and others (1983 SCMR 1252).

12. Arguments have been heard and record perused.

13. Certain important facts are admitted between the parties. It is not seriously disputed and is also established on the record that Mst. Janat Khatoon, Mst. Rasheedan Bibi and Mst. Marium Bibi are daughters of Ahmed Bux. This Ahmed Bux had abandoned property owned by him in Jhullunder (India) as given in detail in the order of the Claims Officer (Land) Central Record Office, Lahore dated 24‑10‑1959. Abdul Rehman, Ghulam Ali and Ghulam Nabi tiled claim (Exh.P.15) under section 5 of the Registration of Claims (Displaced Persons) Act, 1956. The claim was registered at serial No.5425. Reverting to the order of Claims Officer dated 24‑10‑1959, Exh.P.3, it is important to note that the claims was accepted in the following terms:‑‑ "I accept the claim and verify the area mentioned above in the name of the claimant's father.".

14. Reference is also made to Exh.P.16 which is an order of the Deputy Claims Officer, Lyallpur dated 18‑9‑1958. Regarding the status of the respondents, it was held therein that they (respondents) have succeeded in proving their, claims as descendants of Ahmed Bux. Before proceedings further, it is necessary to elucidate the purpose of Act III/1956. The said Act was promulgated to provide for the registration and verification of claims' of displaced persons in respect of their property in India for the purpose of permanent settlement of displaced persons by transferring to them, the available evacuee property as far as possible pro rata in relation to the properties they had been obliged to abandon in India. After the promulgation of the Registration of Claims (Displaced Persons) Act, 1956, the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and Displaced Persons (Land Settlement) Act, 1958 were promulgated. These statutes contemplated two different phases in a single process of Permanent Settlement of Displaced Persons. As very aptly ruled in the case of Sheikh Ahmed Sadiq v. Chief Settlement Commissioner and others (PLD 1974 SC 368) the jurisdiction under these two Acts is complementary to each other but not overlapping. Whereas, the purpose of Act III of 1956 is to create machinery to evaluate and classify the claims or claimant under appropriate schedule, Displaced Persons (Compensation and Rehabilitation) Act, 1958 deals with the IInd phase in the actual process of settlement of displaced persons.

15. It would thus be seen that the process contemplated by the earlier Act cannot be isolated from the stage or phase envisaged in the later Act as the permanent settlement is directly dependent upon the verification and evaluation of claims determined under the former Act. The facts of the instant case can be properly appreciated in the back drop of this rationale of the Evacuee and Rehabilitation Legislation. The property abandoned in India admittedly belonged to Meher Ahmed Bux. But for this confirmation, it would not have been possible for the relevant authority under the Act III of 1956 to verify and evaluate claim in the name of Ahmed Bux. The fundamental grievance of the petitioners is that the respondents who are the sons, of Meher Ahmed Bux filed the claims against their own names to the exclusion of the petitioners as is apparent from Exh.P.15 and Exh.P.16. The claims filed by the respondents was accepted as descendants of Ahmed Bux, it was upon the basis of this verified claims that the evacuee property subject‑matter of the suit was transferred/permanently settled upon the respondents. The petitioners being ladies were completely ignored by the respondents. In this context, the conduct of the respondents also leaves much to be desired. While in their written statement, they accepted the petitioners as the daughters of Ahmed Bux, they attempted to, deny the same half heartedly later on. Both the lower Courts, however, have found that the said relationship has been established.

16. This shall now take us to the submissions of the learned counsel for the respondents whereby it was contended that a claim is only an assertion of right to ownership or to interest in property in India and that it is not a right or interest in property itself which could be heritable in nature. To support his contention, he has placed reliance upon the case of Syed Abdul Rasheed v. Pakistan and others (P.P.R. 1962 SC 13). It is contended that the assertion of this right and its inquiry culminating in verification and valuation under Act II of 1956, is only the first step towards framing of scheme of Allotment of Evacuee Property under a latter. Act i.e. the Displaced Persons (Compensation and Rehabilitation) Act; 1958, and thus, even a verified claims was not heritable.

17. The contention of the learned counsel for the respondents, in the context or the present circumstances, is misconceived. As stated hereinbefore the process of verification of a claim under Act III of 19561 is intricately connected with the next phase of' the process by virtue of which evacuee property is permanently settled/transferred under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The claim of the petitioners precisely is that all or any property, transferred in favour of the respondents, on the strength of claims verified in respect of the property belonging to Ahmed Bux would be liable devolve on the petitioners as well in accordance with law of inheritance. In such situation, the verification of the claim under the former Act had merged into the Act of Permanent Settlement under the later Act, as both the transactions would be two stages in the same process.

18. The contentions of the learned counsel for the respondents that after the issuance of a Permanent Transfer Deed or the issuance of RL.II the Civil Court has no jurisdiction in the matter is devoid of force as the petitioners who claim a share in the suit property could lawfully agitate the same before the Civil Court upon the strength of their basic entitlement.

19. In view of what has been held above, the petitioners being co‑sharers in the property in question, their suit shall not be hit by limitation.

20. For all that has been discussed above, both the lower Courts have misconstrued and misapplied the relevant provisions of law and have erred in dismissing the suit of the petitioners. In these circumstances, the civil revision is accepted and the judgment and decree dated 11‑7‑1991 of the appellate Court and judgment and decree dated 24‑1‑1988 of the trial Court are set aside and the petitioners are held entitled to 2/9th share in the suit' property. The trial Court shall proceed to determine the mode and manner of partition of the properties in accordance with law so that a final decree for possession can be passed. Parties to bear own costs. M.A.R./A‑526/L Revision allowed