1988 PLP 1015 (MLD)

This Civil Revision calls in question the judgment/decree dated the 18th of March, 1986 of the learned Addl. District Judge, Sialkot, whereby he affirmed the decision of the trial Court holding that the petitioners‑plaintiffs were not the sous of Qutub Din, a refugee from the State of Jammu and Kashmir.

2. Under the relevant scheme he alongwith his family members, namely, wife Mst. Hussain Bibi and the two petitioners as sons, was allotted the land m question vide Fard Taqseem Exh. PA dated the 16th of May, 1959. He died thirteen years ago whereupon the land was mutated in favour of the widow and the petitioners according to Shariat, but allegedly the two respondents made an application to the Collector for correction of the Revenue entries claiming themselves to be his daughters and denying the petitioners to be his sons. The Collector accepted their contention by his order dated the 17th of October, 1981, and the necessary correction was given effect to by Mutation No.78 of the 3rd of December, 1981, whereby the petitioners were totally excluded from inheritance and instead the respondents were allowed the same as his daughters. Aggrieved by it the petitioners brought the present suit for declaration that since the deceased himself included their names in the permit as his own sons, they could not now be denied that status 12‑13 years after his death. They categorically disclaimed the respondents to be his daughters pointing out that if they were really so, they should have challenged the devolution of his inheritance with promptitude rather than waited for 12‑13 years to get it corrected through a miscellaneous application made before the Collector. They maintained that in any event, the land granted as "Guzara" to the deceased as head of a family would on his demise go only to other members of the family whether or not they were his legal heirs. Lastly, they urged that the Collector had no power after the repeal of Laws to pass the order dated the 17th of October, 1981, to upset the order of a Rehabilitation Authority passed 22 years earlier, that is on the 16th of May, 1959.

3. Serious objections were raised on these pleas pointing out that the petitioners‑plaintiffs were 'pichhlag' sons of their mother Mst. Hussain Bibi who having become widow on the demise of their father Muhammad Din had married Qutab Din deceased and thus did not hold any heritable relationship with him. Fard Taqseem relied upon by the petitioners was said to be fictitious contending that, in fact, the land in question had been granted to Qutub Din in his claim.

4. Appropriate issues were framed on these pleadings and the concurrent finding was that the petitioners were not the sons of the deceased whereas the respondents were his daughters. It appears that the objection to the jurisdiction of the Collector was waived and the suit was decreed.

5. Ch. Mushtaq Ahmad Khan for the petitioners resuscitated the objection as to absence of jurisdiction with the Collector in passing the impugned order asserting that even if it was abandoned at lower level, it could still be reiterated. He relied upon Sultan Ali v. Khushi Muhammad P L D 1983 S C 243(251), Hakim Muhammad Buta and another v. Habib Ahmad and others P L D 1985 S C 153 and Muhammad Sulaiman and another v. Javed Iqbal and others P L D 1982 S C (A J & K) 64 for this view, and the dicta of these cases really affirm the plea that there could be no estoppel, acquiescence or waiver in regard to ` absence of jurisdiction of a forum. He stressed that even if a counsel waived such an objection at one time by making a specific statement, the same had no adverse effect on the right of the party. Reference in this behalf was made to Muhammad Yasin and 9 others v. Mst. Begum Noor and 9 others P L D 1978 S C (A J & K) A 112 where a counsel's statement on a point of law was held ineffective.

6. The contention was quite formidable. No provision of law or authority was cited to the contrary. No doubt the objection was not pressed before the lower Courts, yet by applying the above mentioned rule, the petitioners could not be estopped from raising at before this Court. It has a fundamental character and since goes to the root of the action complained of, it cannot be avoided on any plane.

7. Next, it will be seen if really the Collector was competent in 1981 to re open what was settled in 1959 by a Rehabilitation Authority. In Mst. Umar Bibi and another v. Officer on Special Duty, Central Record Office, Lahore and 3 others P L D 1986 Lah. 109 it was held that any order passed by Rehabilitation Authorities in their exclusive jurisdiction could not be re‑opened by the Collector after repeal of laws. The settlement of the land had become a past and closed transaction. Section 22 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, barred all Courts etc. including the Collector to upset it.

8. Learned counsel for the respondents drew attention to their application dated the 18th of February, 1975 (Exh.D.8 page 62) to show that it was made to a Rehabilitation Authority and related to a pending matter. I am afraid if this were fell correct. Although it was addressed to a "Settlement Officer" yet it did not relate to any pending matter. The Parchi Taqseem was issued on the 16th of May, g 1959; the deceased died 12‑13 years later, presumably in '1971‑72 when the petitioners were allowed the land as his sons; the laws were repealed in 1974; but the respondents made their application on the 18th of February, 1975, when fait accompli of the matter could be pleaded with impunity. There was nothing pending to fall under section 4 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.

9. The above‑quoted case supports the plea that the Collector could not assume jurisdiction either on the 18th of February, 1975, when the application was made to him, or on the 17th of October, 1981, when he passed the order complained of. The old dispensation, as made by means of the Parchi Taqseem dated the 16th of May, 1959, showing the petitioners to be the deceased's sons, would prevail.

10. However, notwithstanding the correctness of the above proposition, subsequent death of Qutub Din left it open to see who else his heir was. The Parchi Taqseem did not consider, nor hold if the respondents were not his daughters. In fact, this aspect did not come up for determination so as to preclude them from agitating it now. The deceased did not disown them, and as a matter of fact any such overture even on his part, but without notice to them, would not estope them from asserting their status as his daughters. May be that being married they were not dependent upon the deceased at the time he obtained the Parchi which essentially was meant to support the family and dependants. Cause of action for them arose on the demise of Qutub Din and it was obviously open to them to prove themselves to be his daughters. After his demise normal law would apply and the respondents could establish their right to inherit as daughters of the propositus. The petitioners tried to save their own status and did not lead evidence to prove that the respondents were not the deceased's daughters. The concurrent finding of the Courts below on this point of fact will remain decisive.

11. The revision petition is partly allowed. The two petitioners, treated as sons, will each get 2/6 while the two respondents as daughters will each get 1/6. The impugned decree of the lower appellate Court is accordingly modified. No order as to costs. AA./M ,54/L Revision partly allowed.