1995 PLP 1830 (SCMR)

ZIA MAHMOOD MIRZA, J.‑‑‑This is a petition for leave to appeal against the judgment of the Lahore High Court dated 27‑11‑1993 allowing the second appeal filed by the respondents and dismissing the petitioner's suit.

2. Facts necessary for the disposal of this petition, briefly stated, are that one Allah Ditta made an oral gift of the land measuring 48 Kanals 4 Marlas situate in the Revenue Estate Sangowali Tehsil Wazirabad, District Gujranwala, in favour of the respondents vide mutation attested on 29‑7‑1959. Ghulam Muhammad petitioner instituted a suit for recovery of possession of the suit land against the donees/respondents alleging that the suit land was ancestral in nature; the parties were governed by custom and Allah Ditta was, therefore; not competent to alienate the suit land by means of a gift. The suit was contested by the respondents. Learned trial Court after framing the necessary issues and recording the evidence of the parties decreed the suit on 28‑3‑1966 holding that the parties were governed by custom, the suit land was ancestral in nature and, therefore, Allah Ditta was not competent to gift it away to the respondents. On appeal, the learned District Judge affirmed the findings of the trial Court vide judgment dated 12‑11‑1966. The respondents then brought the matter in the High Court in second appeal which as stated above has been accepted by the learned Single Judge holding that in view of the provisions of section 2‑A inserted in West Pakistan Muslim Personal Law (Shariat) Act (V of 1962) by Amending Ordinance XIII of 1983, Allah Ditta who had undisputedly inherited suit land under custom had become its full owner and was, therefore, competent to gift it to the respondents and that "the judgments and decrees rendered by the two Courts below have become void and in‑operative due to operation of law". Reliance for this view was placed by the learned Single Judge on Tabraiz v. Said Muhammad (PLD 1984 Lah. 456), Khair Din v. Barkat (1986 CLC 1415) and Muhammad Sharif v. Khushi Muhammad (1988 SCMR 8).

3. We have heard the learned counsel for the petitioner. He has not disputed that Allah Ditta, the donor inherited the suit land under custom before 15th March, 1948. That being so, by virtue of clause (a) of section 2‑A of West Pakistan Muslim Personal Law (Shariat) Act, Allah Ditta would be deemed to have become absolute owner of the suit land, "as if such land had devolved on him under the Muslim Personal Law (Shariat)" with the result that he was not subject to any limitation/restriction in the matter of disposition of the suit land. Clause (b) of section 2‑A further provided that any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage to call in question an alienation of the land inherited acquired as aforesaid "shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act." This provision declared the judgment and decrees already obtained by the reversioners as void and of no legal effect. Confronted with this legal position, learned counsel sought to rely upon the proviso to section 2‑A which excluded the application of the substantive provisions of the said section to the transactions past and closed where possession of the land had already been delivered under the decrees obtained by the reversioners under custom and contended that the petitioners having obtained the possession of the suit land under the decree passed by the trial Court, long before section 2‑A was inserted in the West Pakistan Muslim Personal Law (Shariat) Act by amending Ordinance XIII of 1983, the provisions contained therein were not attracted to his case. In the submission of the learned counsel, delivery of possession of the suit land to the petitioner under the decree of the Court rendered the transaction past and closed within the purview of the proviso aforementioned and consequently section 2‑A was not applicable to his case. We are not persuaded to accept this contention. Possession of the suit land is no doubt shown to have been delivered to the petitioner in execution of the trial Court's decree but that decree was not final. It was brought under challenge in an appeal before the District Judge and failing there, the respondents preferred second appeal in the High Court. Thus notwithstanding the execution of the trial Court's decree and delivery of possession to the petitioner, the dispute remained alive throughout until the High Court allowed the respondents' appeal and setting aside the judgments and decrees of the Courts below dismissed the petitioner's suit. Needless to observe that the delivery of possession in execution of the trial Court's decree was subject to the result of appeal before the District Judge and further appeal in the High Court and of course C.P.C. provided for restitution on acceptance of appeal. In the circumstances, mere delivery of possession to the petitioner did not make it a case of past and closed transaction with the result that the petitioner cannot take the benefit of proviso relied upon by his learned counsel.

4. In the aforestated view of the matter, we find no merit in this petition which is accordingly dismissed and the leave sought is refused. A.A./SG-516/S Leave refused.