1988 PLP 1024 (SCMR)

NASIM HASAN SHAH, J.‑‑The facts forming the background of this case and the circumstances in which leave to appeal has been granted in this case have been set out succinctly in the order, dated 23‑5‑1975 of this Court, which may usefully be referred .to. The appellant and respondents Nos.2 to 4 are descendants of a common ancestor Jhandey Khan, a resident of Hissar District in India. Jhandey Khan was the original grantee of Sukh Lambri grant, which was a special type of grant of land made to troopers and officers of a Regiment of irregular cavalry who had rendered service during the Pindhari campaign in 1818‑19 in Hissar District. The conditions of the said grant are mentioned in the Gazetteer of Hissar 1892 and were as follows:‑‑ (i) The period of the grant is taken to be three lives and not three generations. (ii) The oldest surviving male descendant in the eldest male branch of the original grantee's issue in existence succeeds until the grant has been held for three lives. (iii) During the currency of the grant the person in whose name the grant is recorded under the above rules enjoys the revenue free thereof. (iv) After the lapse .of the grant, the proprietary right vests in all those who are heirs of the original grantee according to the law applicable and not only‑ in those of the last holder, and they are all responsible for the land revenue assessed after resumption." It appears; therefore, that the grant was for three lives and not three generations and after its lapse under Condition No.4, proprietary rights had to vest in all heirs of the original grantee and not only in those of the last holder and the heirs were to be determined in accordance with the law applicable at the time of lapse of the grant. Although apparently, the expressions lapse of rant and the subsequent vesting of proprietary rights as use in Condition No.4 are mutually contradictory, it appears that the word 'lapse' was used in the context of the expiry of the rent‑free tenure for three lives after which proprietary rights were to vest in the heirs of the original grantee subject to payment of land revenue. For a proper appreciation of the precise time of the expiry of the grant which extended to three lives and the determination of the terminus-a-quo of the conferment of the proprietary rights and the heirs entitled thereto, one must fall back upon the undisputed pedigree‑table of the parties which is as follows:‑‑ Jhandey Khan Khuda Baksh

I I Imam Din Bholu I I I Muhammad Shafi I alias Leelu

I Shahabuddin I Azizuddin Muhammad Rafiq Respdt. 4 I Respdt.2 (appellant) Zakauddin Respdt.3 The question is as to how is the land allotted in lieu of the grant which is claimed by the appellant to the exclusion of the respondents to devolve? The first round of the litigation between the parties ended with a remand order made by a learned Judge of the Lahore High Court in Writ Petition No.181‑R of 1961 filed by the respondents. After the remand, the Settlement authorities set aside the original allotment order exclusively made in favour of the appellant and allotted a portion of the land in favour of the respondents in accordance with their share of inheritance according to Shariat. The appellant unsuccessfully challenged this order in writ jurisdiction in the first instance and then filed an L.P.A., which too was dismissed vide order dated 1‑11‑1974 from which leave to appeal was sought and granted by this Court on 23‑5‑1975. This Court, while dealing with the petition for leave, observed that the order passed by the L.P.A. Bench showed that the appellant claimed the entire land solely on the basis of his possession adverse to the Government which could mature into ownership‑rights only after the lapse of 60 years subject of course to the fulfilment of other essential legal requirements. Since the appellant's possession was not more than a period of 25 years immediately preceding the establishment of Pakistan and as such the ground of adverse possession against the Government was not available to him; consequently, the appellant could not succeed on this ground. However, the learned Judges of the High Court had not taken note of the fact that there was another aspect which required consideration, namely, Condition No.4 of the Conditions of Grant which was relevant for the determination of the rights of the parties in the land in question. Leave was, accordingly, granted to examine as to whether the final order of the Settlement authorities upheld by the High Court in writ jurisdiction and L.P.A. on Inter‑Court Appeal proceeded on a correct interpretation of Condition No.4 referred to earlier. We have heard the learned counsel for the parties. Learned counsel for the respondents Nos.2 and 3 pointed out that in the written statement filed on their behalf, as long ago as 23‑9‑1963 it was pointed out that Bholu had died during the lifetime of Khuda Bakhsh and that on the death of Khuda Bakhsh the land was mutated in favour of Bholu's son, Muhammad Shafi alias Leelu, in accordance with Condition No.2 of the Conditions. Accordingly, the assertion made on behalf of the appellant that after the death Khuda Bakhsh the grant fell to the share of Bholu, grandfather of A the appellant, was not correct. The learned counsel for the respondents further pointed out that this factual averment was not controverted and has never been controverted so far. Therefore, the Additional Settlement Commissioner was right in mutating the land in favour oil all the heirs according to Shariat, in the proceedings on remand. , We agree with the view taken by the learned Additions.` Settlement Commissioner and upheld by the High Court and may also add that the learned Judges of the Letters Patent Bench, while dismissing the appeal of the respondents, also based their decision B on the further ground that the High Court in the exercise of its discretionary writ jurisdiction was justified in not interfering with the just and equitable order of the Settlement authorities. We whole heartedly agree and consider that this appeal is liable to fail on this sole ground. This appeal, accordingly, is dismissed hereby. No order as to costs.