P L D 1995 Supreme Court 620 (PLP)

Date of hearing: 29th May; 1995. . JUDGMENT . - MUKHTAR AHMED JUNEJO, J.--This is an appeal filed with permission of this Court against the judgment dated 1-4-1990 delivered by the Lahore High Court in R.S.A. No. 870/71. Admittedly the suit property mentioned in Suit No. 397/1 of 1970 filed by uhulam Haider, predecessor of the appellants, was owned by Mst. Rehmat Bibi, who had migrated from India where her husband, namely, Ali Ahmed died. Mst. Rehmat Bibi got the suit land in lieu of the land left by her in India. Mst. Rehat Bibi died in 9957, Ghulam Haider, predecessor of the appellants, was real brother of Ali Ahmed, who was husband of Mst. Rehmat Bibi. On 29-6-1969 mutation in respect of the suit property was sanctioned in favour of Niaz Muhammad, predecessor of the respondent, and his brother Muhammad Ali, who died issueless. Both, Niaz Muhammad and MuhamymlO~ad Ali, were said to be heirs of real brother of father of Mst. Rehmat Bibi'On knowing about the mutation dated 29-0-1969, Ghulam Haider filed in vain an appeal before a Collector and then filed Suit No.397/1 of 1970 in Civil Court at Lyallpur for a declaration that he was owner and occupier of the suit property. He also sought issue of injunction restraining Niaz Muhammad and Muhammad Ali from claiming the suit property as owners or from interfering with possession of Ghulam Haider. While contesting the said suit, Niaz Muhammad and Muhammad Ali in their written statement took stand that Ghulam Haider had- no locus standi to file the suit which was incompetent. It was averred that st. Rehmat Bibi was a migrant from India and she had herself filed claim form and the suit land was given to her person as by the Government. Niaz Muhamad and Muhammad Ali, defendants in the suit, claimed to be exclusive heirs of Mst. Rehmat Bibi, who, according to them, had no relationship with Ghulam Haider. Niaz Muhammad and Muhammad Ali admitted that earlier in 1960 mutation in respect of the suit property was sanctioned in favour of Ghulam Haider. The same was challenged to be void, illegal and unjustified on the ground that it was sanctioned in absence of Niaz Muhammad and Muhammad Ali by the Revenue Officers who had no jurisdiction in the matter. After settlement of issues and recording of the evidence the trial Court dismissed the suit on 1-7-1971 after finding that Ghulam Haider was not a blood relation of Mst. Rehmat Bibi who was cousin of Niaz Muhammad and Muhammad Ali, that Ghulam Haider had no locus standi to file the suit, that Niaz Muhammad and Muhammad Ali were legal heirs of Mst. Rehrnat Bibi and mutation in their favour was not proved to be unjust, or illegal. The suit was found to, be maintainable but rest of the issues went against Ghulam Haider. Civil Appeal No.202/14 of 1971 filed by Ghulam Haider against the judgment and the decree of the trial Court, was dismissed in limine on 29-9-1971 by an Additional District Judge before whom it was argued for the restriction on the rights if the displaced persons allotted lands as full oven The Additional District Judge agreed with the trial Court that Ghulam Ha having no blood relationship with Mst. Rehmat Bibi, was not her heir and no title in the suit land. Ghulam Haider took the matter to the High Court R.SA. No.870 of 1971 which was dismissed under the impugned judgment Hence this appeal. Leave to appeal was granted by this Court on 5-9-1990 to exam, whether Mst. Rehmat Bibi held her property in India in no other caps except as a limited owner and whether her heirs would get only 1/4th shay the property allotted to her and whether remaining 3/4th share of the s would go to the appellants who are legal heirs of Ghulam Haider brother Ali Ahmed husband of Mst. Rchmat Bibi. Chaudhry Nadir Bakhsh learned counsel for the appellants reiter, his arguments made before the leave granting Bench of this Court that 1 Rehmat Bibi got the property of her husband in India as a limited owner that in Pakistan her position, in respect of the landed property allotted to in lieu of the landed property left in India, was that of a limited owner, with result that on her death her heirs can get only 1/4th share of the Ian `4,:'k,;., property allotted to her in Pakistan in lieu of the landed property left by husband in India. Reference was made in this respect to the West Paki _+ Muslim Personal Law (hariat) Application Act, 1962, as amended from to time, and to the case of Additional Settlement Commissioner (La Sargodha v. Muhammad Shafi and others (PLD 1971 SC 791). The lea3 counsel for the appellants next argued that on coming into force of Pakistan Muslim Personal Law (Shariat) Application (Amendm Ordinance, 1963, st. Rehmat Bibi became entitled to succeed as widow, the death of her husband, his estate. That this includes the proper litigation allotted to her in Pakistan and that the respondents, even if heirs of said Mst. Rehat Bibi, cannot claim ownership in respect of the landed property allotted to her. The learned counsel for the appell conceded that in his suit filed on 16-3-19'70 Ghulam Haider, predecessor of appellants, did not plead that Mst. Rchmat Bibi was limited owner of the property till her life or she was owner of a part of the same. The leas counsel explained that said suit was filed by Ghulam Haider at a time when, case of Sher Muhammad v. Additional Settlement and Rehabilita Commissioner (PLD 1968 Lah 234) held the field providing that the prof received in Pakistan by a female recorded in the Indian Jamabandi as lim owner under custom, was her absolute property, devolving on her heirs in of her death and not devolving on the heirs of the last male owner. It argued that said view was overruled by this Court in the case of Muham Shafi (PLD 1971 SC 791) where it was held that a limited owner in the abandoned in India does not become a full owner of the land allottePakistan in lieu of such land. It was also argued that after termination limited estates in respect of immovable property held by Muslim females, by West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Ordinance, 1963, Mst. Rehmat Bibi ceased to be limited owner of the property allotted to her in Pakistan and hence the respondents even if they were lineal descendents/legal heirs of Rehmatullah, are not entitled to claim ownership in respect of the entire suit property. Chaudhry Muhammad Hassan, learned counsel for the respondents argued that in his plaint of Suit No. 397/1 of 1970 deceased Ghulam Haider, predecessor of the appellants, did not take stand that Mst. Rehmat Bibi held the disputed property as a limited owner or as a life estate. It was further argued that Mst. Rehmat Bibi had died in December 1957 before promulgation of the law terminating limited estates in respect of immovable property held by Muslim widows, and her estate had already devolved upon the respondents--sons of her uncle. It was also argued that even after decision by this Court in the case of Muhammad Shari (PLD 1971 SC 791) on 3-5-1971, Ghulaw Haider did not move for amendment of his plaint. Relying un the case of Mst. Jannat Bibi v. Shc:r Muhammad and others (19$8 SCMR 1696), the learned counsel for the respondents argued that a party cannot deviate, from the pleadings. '1 he appeal was also challenged to be time-barred, The law in respect of evacuee property obtained in Pakistan by widow in lieu of the property held by her as life estate in India, is now well settled after pronouncement of leading judgment by this Court in case of Muhammad Shafi (PLD 1971 Supreme Court 791). In said judgment there is reference to the Memorandum No. 4539-65/1964-R(L) issued on 14-4-1966 by the Chief Settlement and Rehabilitation Commissioner which was considered to be a departmental constitution of the provisions of the Rehabilitation Settlement Scheme, 1957, clearly indicating that a limited owner in the land abandoned in India does not become a full owner of the land allotted in Pakistan in satisfaction of such a claim,, and that on the termination of such limited estate the reversioner of the last male owner will become the- allottee of such land. Such interpretation, as held in the said judgment, is not contrary to the intendment conveyed by the provisions of sections 15 and 16 of the Displaced Persons (Land Settlement) Act. In the case of Mst. Jannat Bibi v. Sher Muhammad (1988 SCMR 1696) it was held that until the enforcement of the W.P. Muslim Personal Law (Shariat) Application Act, 1962 (hereinafter mentioned as the Act of 1962) the contesting party could prescribe only to the extent of widow's right of enjoyment of a life estate and not for title as full owner which right she did not possess at that time. In said case reference was made to section 3 of the Act of 1962 whereby limited estates of Muslim females under the customary law were determined. Reference was also made to section 5 of the Act of 1962 by which females whose limited estates were terminated by section 3 were entitled to their Muslim Law share as heirs of the last full owner. Commenting on sections 3 and 5 of the Act of 1962, Zaffar Hussain Mirza, J. (as he then was) observed in the case of Mst. Jannat Bibi that a legal fiction, has been created by the combined effect of sections 3 and 5 of the Act of 1962. so that although the last full owner may have died long back in the past, he is deemed to have died on the date of the enforcement of the Act and succession would be deemed to have opened to his estate on such date. The case of Muhammad Shafi was followed in the case of Muhammad Aslam v. Abdul Hamid (1991 SCMR 552) and Hashmat Ali v. Mst. Jantan (1993 SCMK 9.)0) In the present case it was obligatory on Ghulam Haider, predecessor of the appellants, to establish on record that the land transferred to Mst. Rehmat Bibi in Pakistan was' in lieu of the land which she held in India as limited owner under the custom of that area. This was not even alleged by Ghulam Haider in his plaint. - Niaz Muhammad and Muhammad All; predecessors of the respondents, in their written statement took stand that Mst. Rehmat Bibi was. full owner of the land given to her by the Government as "Attia". Ghulam Haider examined in the trial Court Atta Muhammad P.W.1 and Muhammad Arshad P.W.2. None of these witnesses stated if Mst. Rehmat Bibi held the land in India as a limited owner. Muhammad Arshad is son and attorney of Ghulam Haider and he deposed that the property. left by Mst. Rehmat Bibi at the time of her death was mutated in favour of Ghulam Haider, who also occupied the disputed land. Atta Muhammad P.W.1 simply stated that Ghulam Haider was brother of husband of Mst. Rehmat Bibi, who was sister of uncle of Niaz Muhammad and Muhammad ammad Ali. Mere mention of Mst.Rehmat Bibi in plaint of Ghulam Haider as widow of Ali Ahmed, by itself did not mean that she held the land in India as limited owner. There is not an iota of evidence, as to, what was the custom in India. On the other hand, Niaz Muhammad examined himself as D.W.3 and he and-Muhammad Ali examined Mukhtar Ahmed, D.W.1 Naib Patwari and Abdul Latif D.W.2 an Advocate. Niaz Muhammad D.W.3 deposed that his father Rehman Khan was brother of Ghulam Ghous father of Mst. Rehmat Bibi, who was brother's wife of Ghulam Haider. Niaz Muhammad admitted that the disputed property was given against claim in lieu of the property left in India. It was not suggested to Niaz Muhammad in cross-examination if the property left in India was held by Mst. Rehmat Bibi as a life estate. In absence of any evidence on record, it could not have been held by any Court that Mst. Rehmat Bibi was a limited owner of the property in lieu of which the disputed property was transferred to her. Consequently the appellants are not entitled to the, benefits of the case of Muhammad Shafi and other cases discussed above. Dealing with this case the Lahore High Court observed in the impugned judgment as below:-- "... In the plaint as noticed above, no case was made out that Mst. Rehmat Bibi was holding limited estate in India, and that the land was owned by her husband. No case was made out in the plaint that the appellant was heir of her husband whereas in the plaint he claimed to be sole heir of Mst.Rehmat Bibi who was entitled to the entire land to the exclusion of the respondents who were stated to be not related to Mst. Rehmat Bibi. No evidence was led that Mst. Rehmat Bibi was holding limited estate in India and that she was wrongly treated to be full owner by the authorities when the land was allotted to her." The High Court appears to have taken correct view on the basis of material on record and no case has been made out if there is misreading or p non-reading of the material on record. Consequently this appeal stands dismissed with no order as to costs. AA./M-3128/S Appeal dismissed.