2005 PLP 1500 (YLR)

The petitioner filed a suit for declaration and permanent injunction with the averment that one Maula Bakhsh son of Nathu a refugee from Jammu and Kashmir got allotment of 136 Kanals and 19 Marlas of land in village Ball Shehjahan Tehsil and District Narowal against Permit No.22961-A. This allotment was for his family consisting of two members. After the repeal of evacuee laws, Maula Bakhsh applied for obtaining proprietary rights. He deposited sale price amounting to Rs.5,890 whereafter Mutation No.50 was attested in his favour on 29-4-1980. The proprietary rights were thus, conferred on the said Maula Bakhsh and he became the full owner of the suit land. Maula Bakhsh died on 9-7-1984. According to the plaintiff/ petitioner, he was survived by Mst. Muhammad Bibi widow and petitioner as his real nephew.

2. In the meanwhile. Mst. Muhammad Bibi (since deceased) filed an application to the Tehsildar with powers of Assistant Collector-II for cancellation of Mutation No.50 on the ground that as the allotment of the suit land was made in favour of two family members of Maula Bakhsh, she as the wife and family member of Maula Bakhsh was entitled to the allotment of the land to the extent of 1/2 share. On 19-1-1985 an order was passed allowing the fresh entry accordingly, whereafter Mutation No.117 was entered and proprietary rights in the land in question were conferred on Maula Bakhsh and Mst. Muhammad Bibi in equal shares vide order, dated 27-4-1985.

3. The petitioner aggrieved of this mutation filed a civil suit for declaration and permanent injunction with the averment that according to the law and the guidelines on the subject Maula Bakhsh shall be recorded as the sole owner and proprietor of the entire land as head of the family and as also having deposited the sale price of Rs.5,890 himself and that the incorporation of the name of Mst. Muhammad Bibi to the extent of 1/2 owner in the suit land was illegal.

4. The suit was contested by Mst. Muhammad Bibi.

5. From the divergent pleadings of the parties, the following issues were framed:-- ISSUES: (1) Whether Mutation No.117, dated 27-4-1985 is illegal, void, ineffective upon the rights of the plaintiff and is liable to be cancelled? OPD. (2) Whether this Court has got no jurisdiction? OPD. (3) Whether the plaintiff has no cause of action or locus standi to bring the suit? OPD. (4) Whether the suit is bad for non-joinder of necessary party? OPD. (4A) Whether the plaintiff is nephew of the deceased Maula Bakhsh? OPP. (5) Relief.

6. In support of his contention, the petitioner produced Malik Hasham Din as P.W.1, Alam Din as P.W.2 and Faqir Muhammad himself appeared as his own witness as P.W.3. Exh. P1 to Exh. P12 were tendered in documentary evidence. On the other hand, the defendant/respondent produced Abdullah as D.W.1 and Mst. Muhammad Bibi defendant appeared as her own witness as D.W.2. She also produced Exh. D1 and Exh. D.2 in her documentary evidence.

7. The learned trial Court in consideration of the aforesaid evidence and as a result of the appraisal of the record, dismissed the suit of the petitioner vide judgment and decree, dated 5-12-1989. Upon issue No.1, it was held that the name of Mst. Muhammad Bibi was included in Fard Taqseem along with Maula Bakhsh and that in this view of the matter, Mutation No.117 was correctly entered showing Mst. Muhammad Bibi to be the owner of 1/2 share in the suit-land. Issue No.2 was found in favour of the plaintiff while Issues Nos.3 and 4 were found against the plaintiff/ petitioner. Upon Issue No.4-A however, the relationship of the plaintiff/petitioner with Maula Bakhsh being real nephew was determined in favour of the petitioner.

8. The petitioner being aggrieved of the said judgment and decree preferred an appeal. The learned appellate Court re-appraised the entire evidence on the record and concurring with the findings of the learned trial Court proceeded to dismiss the appeal vide judgment and decree, dated 21-11-1993. Finding that the petitioner was a real nephew of Maula Bakhsh, he was found entitled to 3/4 share in 1/2 share of Maula Bakhsh in the suit land.

9. The present Civil Revision has been filed to assail the aforesaid concurrent findings of fact recorded by the learned lower Courts.

10. The salient features of the case which are also not controverted by either party are that land measuring 136 Kanals, 19 Marlas in village Ball Shehjahan Tehsil and District Narowal were allotted in the name of Maula Bakhsh son of Nathu against Permit No.22961-A through Parchi Taqseem Arazi Mohajreen Jammu and Kashmir (Exh. P.9). This allotment was made for his family consisting of two members including himself. Ration Card No.3659/453 (Exh.D1) was issued to Maula Bakhsh as head of the family and Mst. Muhammad Bibi as member of his family. It is also not denied that Mst. Muhammad Bibi was a successor-in-interest of Maula Bakhsh aforementioned. It is also apparent from the record viz. Naql Roznamcha Waqiatti (Exh.P1) that the price of the allotted 589 units amounting to Rs.5890 was deposited by Maula Bakhsh alone whereafter through Mutation No.50, dated 19-4-1980 (Exh.P2), Maula Bakhsh son of Nathu was entered as sole owner of the suit property. Maula Bakhsh died on 9-7-1984. Mst. Muhammad Bibi filed an application before the Assistant Collector, Narowal on 23-12-1984 wherein it was claimed that since the temporary allotment was made in the name of Maula Bakhsh and Mst. Muhammad Bibi which was also reflected in the Ration Card concerned, she was entitled to ownership to the extent of 1/2 of the total allotted land and that the incorporation of the sole proprietorship in the name of Maula Bakhsh in Mutation No.50 (Exh.P2) was incorrect and unlawful to that extent. The said application was accepted resulting in the attestation of Mutation No.117 on 27-4-1985 whereby Mst. Muhammad Bibi was shown to be owner of the suit land to the extent of 1/2 share while the other 1/2 share was shown in the ownership of the said Maula Bakhsh. As stated hereinbefore, the petitioner challenged this Mutation No.117, dated 27-4-1985 through a civil suit which was dismissed as was his appeal which are now impugned in this Civil Revision.

11. Learned counsel for the petitioner has assailed the findings of the learned lower Courts on the ground that the provisions of Memordandum No.1270-78/579-R(L), dated 30-4-1978 and Memorandum, dated 24-11-1978 have been misconstrued, misinterpreted and misapplied by both the learned lower Courts in coming to the conclusion that Mst. Muhammad Bibi was entitled to 1/2 share in the suit land. The precise submission of the learned counsel for the petitioner is that the suit land was allotted to a family of two members of Jammu and Kashmir Refugee namely Maula Bakhsh as head of the family and Mst. Muhammad Bibi as member of the family. According to him, a member of the family who is not a successor-in-interest of the head of the family was alone entitled for the grant of proprietary rights if his name was mentioned in the allotment chit. It is submitted that as Mst. Muhammad Bibi was admittedly a successor-in-interest of Maula Bakhsh, the head of the family, she could not derive any benefit from the allotment chit except to the extent of her legal share for the estate left by Maula Bakhsh at the time of his death. According to him, the interpretation put upon the memorandum, dated 24-11-1978 that the proprietary rights of the temporarily allotted land may be granted in the name of all the members and the family included in the allotment chits was erroneous. Learned counsel for the petitioner has placed reliance upon the case of Bashiran Bibi v. Mst. Fatima Jan and 11 others (2000 SCMR 947) in support of his contention.

12. Mr. Taqi Ahmad Khan, Advocate for the respondents on the other hand, raised the following preliminary objections to the competency of the suit as well as the Civil Revision in hand:-- (a) that the suit was not competent as Faqir Muhammad petitioner also had a real sister and without impleading her as a party the suit for declaration was not maintainable. Reliance was placed upon the case of Mst. Razia Begum and other v. Zahoor Ahmad and others (2003 CLC 977) and Haji Ghulam Sarwar v. Syeda Rohi Begum and 19 others (1996 CLC 172); (b) that the declaratory suit was filed against the order of Assistant Collector and non-impleadment of the said official in the suit vitiated the suit itself. He placed reliance for this proposition upon the case of Muhammad Ishaq and 13 others v. Muhammad Iqbal and 3 others (PLD 1975 Lahore 1314); and (c) that the petitioner had not exhausted his remedy on the revenue side of the litigation and thus, his suit in a Civil Court was not competent. Reliance is placed upon the case of Abdul Aziz v. Syed Arif Ali and 6 others (PLD 1978 Lahore 441).

13. Contesting on merits, the learned counsel for the respondents has controverted the right of the petitioner to inherit the suit land and has in this respect placed reliance upon the case of Allah Rakhi v. Sughran Bibi and 2 others (1980 CLC 546) and Mst. Barkat Bibi v. Mst. Skina Bibi and others (1991 CLC 546). It is lastly submitted that Mst. Muhammad Bibi had subsequently alienated the suit land in favour of the other respondents who were bona fide purchasers for value and without notice and thus, had their rights protected under law.

14. Arguments have been heard and record perused.

15. Maula Bakhsh and Mst. Muhammad Bib had migrated to Pakistan from occupied Jammu and Kashmir and the suit land was temporarily allotted to Maula Bakhsh as head of the family comprising of two members including himself. Mst. Muhammad Bibi was the other member of the family. According to Exh.P1, it was Maula Bakhsh who had deposited the entire consideration in respect of 589 units allotted to the family amounting to Rs.5890 on 9-4-1980 whereupon Mutation No.50 (Exh.P2) was attested in his name as the sole proprietor of the land in question. It is not even claimed by Mst. Muhammad Bibi or any person claiming through her that any portion of the price/consideration of the property in question was paid by Mst. Muhammad Bibi herself. The only claim for proprietary rights made by Mst. Muhammad Bibi was on the ground that her name was reflected both in the allotment chit and in the Ration Card and that in this view of the matter, she along with Maula Bakhsh were entitled to 1/2 share each in the suit land. This contention of Mst. Muhammad Bibi found favour with the Assistant Collector Grade-II, Narowal, as a result of which, Mutation No.117 was attested showing both Maula Bakhsh and Mst. Muhammad Bibi to be owners of the suit land in equal share.

16. The only question which would fall for determination in this Civil Revision is correct interpretation of the Memo. issued by the Board of Revenue Punjab. The Memo. in question is reproduced as under:-- "According to the decision taken in the meeting held on 10-3-1978 as conveyed to you vide this office Cir. Memo. No.1270-78/579-R(L), dated 30-4-1978, the proprietary rights are to be transferred in the name of the head of the family. Many representations were received, from the J&K Refugees by the Minister for Kashmir Affairs and Northern Areas, expressing apprehension that with the previous decision to grant proprietary rights in the name of the head of the family, the other family members included in the allotment chits especially those who are not the successor-in-interest may be deprived of their rights. The Minister has desired that the proprietary rights of the temporary allotted land may be granted in the name of all the members of the family indicated in the allotment chits if a request to this effect is received from any member of the family who is not successor-in-interest of the head of family."

17. By Memorandum No.1270-78/579-R(L), dated 30-4-1978, the proprietary rights were to be transferred in the name of the head of the family only. Many disputes arose amongst such family members who were not the successor-in-interest of the head of the family who claimed that if their names were mentioned in the allotment chit and they are also not successor-in-interest of the head of the family, they should also be entitled to the transfer of the proprietary rights pro rata. It was consequent upon these representations received by the Board of Revenue Punjab that the memorandum reproduced hereinbefore was issued. A correct interpretation of this memorandum would show that it was issued to protect the interest of the non successor-in-interest members of the family who would stand excluded if the proprietary rights were to be allotted in the name of the head of the family alone. Not being successor-in-interest of the head of the family, they would not have been entitled to inherit anything upon the death of the head of the family. It was in this context that it was decided that those members of the family who are not the legal heirs of the head of family, the proprietary rights may be granted if a request to this effect is received from any member of the family who is not successor-in-interest of the head of the family.

18. Mst. Muhammad Bibi being a successor-in-interest of Maula Bakhsh would not be entitled to any benefit of the Memorandum quoted above. As the full proprietary rights were settled upon Maula Bakhsh, upon his death, Mst. Muhammad Bibi would only be entitled to her normal Muslim Law share of 1/4, there being no issue from this wed-lock.

19. Reliance placed upon Allah Rakhi's case and Mst. Barkat Bibi's case (supra) by the learned counsel for the respondents is not apt. In both the cited cases, it was held that temporary allotment was not heritable. The present case is clearly distinguishable as proprietary rights had been conferred upon Maula Bakhsh after payment of the total consideration of the land. Being the sole owner, his estate upon his death would devolve upon his legal heirs which included the petitioner as well as Mst. Muhammad Bibi. Both the learned lower Courts upon Issue No.4-A have found that the petitioner is a real nephew of the deceased Maula Bakhsh. This concurrent finding of fact has not been challenged by Mst. Muhammad Bibi or any person claiming through her by way of any proceedings.

20. There is no force in the submission made by the learned counsel for the respondents that the suit was not competent for non-joinder of necessary parties. From a perusal of the evidence on the record, it is not established that there was any surviving sister of Faqir Muhammad petitioner still alive. In any event, the existence of any such interested person could not affect the case of Mst. Muhammad Bibi or her detriment as her own share is circumscribed under the Islamic Law of Inheritance.

21. There is also no force in the submission that the Assistant Collector was not impleaded as a party or that the remedy was not fully exhausted by the petitioner on the revenue side of the litigation. Suffice it to say that the determination of the question involved in this Civil Revision as noted in the civil suit was a correct interpretation of a Memorandum issued by the Board of Revenue Punjab and it was only appropriate that this matter was resolved in the Civil Court of plenary jurisdiction.

22. The question of bona fide purchasers for value and without notice as pressed by the respondents will also not be available to them beyond 1/4 share of Mst. Muhammad Bibi as the subsequent vendees came into picture for the first time after the suit and appeal of the petitioner were dismissed. Being purchasers from Mst. Muhammad Bibi the right of subsequent vendees shall be subject to the final determination of the lis between the parties to the suit.

23. The upshot of the above discussion is that both the impugned judgments and decrees of the learned trial Court, dated 5-12-1989 and of the learned appellate Court, dated 21-11-1993 are not sustainable at law. Both the judgments and decrees are reversed and the suit of the petitioner is decreed in his favour to the extent of 3/4 share in the suit property leaving the remaining 1/4 share in favour of Mst. Muhammad Bibi. Resultantly, the Civil Revision is allowed, leaving the parties to bear their own costs. M.H./F-84/L Revision allowed.