P L D 1964 (W (PLP)

ANWAR‑UL‑HAQ, J.‑This appeal is by the defendants and arises out of a suit for possession of certain land which has been decreed in favour of the plaintiff respondent, Mst. Khurshid Begum. The land in dispute was granted by the Government on Horse Breeding conditions to Ahmad Khan, the grandfather of the plaintiff. On Ahmad Khan's death in the year 1904, the tenancy rights were inherited by his son Jalal. Jalal died on the 25th of September 1944, and the property was mutated in favour of the present appellants who are the sons and daughters of two brothers of Ahmad Khan, the original tenant. Jalal's wife had pre‑deceased him and his only child Mst. Khurshid Begum, the plaintiff‑respondent, was married at that time, and her name is not at all mentioned as an heir in the mutation of inheritance (Exh. P. 3). The appellants thereafter deposited the zar‑i- malikana and acquired proprietary rights in the year 1945. The plaintiff‑respondent filed the present suit for possession on the 4th of October 1955, alleging that under section 21(b) of the Coloni zation of Government Lands (Punjab) Act, 1912, she was entitled to inherit the property, as the parties were governed by the custom of the Gujrat District in matters of succession, and with regard to self‑acquired property, she was preferential heir as compared to the collaterals. She stated that she was prepared to pay to the defendants the zar‑i‑malikana which they had paid to the Government.

2. The defendant‑appellants resisted the suit by asserting that it was barred by limitation as well as by the provisions of section 36 of the Colonization of Government Lands (Punjab) Act, that they were preferential heirs of the property in dispute and the suit was also liable to be dismissed for the reason that the defendants had paid the zar‑i‑malikana and acquired proprietary rights in the land. Finally, they alleged that the plaintiff was estopped from suing as she had waived her rights.

3. The suit was tried by Sh. Noor Muhammad, Senior Civil Judge, Sargodha, on the following issues :‑ (1) Whether the plaintiff is entitled to any share in the disputed grant, and if so, to what extent? (2) Whether the plaintiff is estopped by her conduct or other wise from suing? (3) Whether section 36 of the Colonization of Government Lands (Punjab) Act operates as a bar to the present suit? (4) Whether the suit is beyond time? (5) Whether before the enforcement of the Shariat Act No. IX of 1948, the parties to the suit were governed by Zamindara Custom of Gujrat, and if so, what that custom was and with what effect? (6) To what relief and on what terms is the plaintiff entitled?

4. The learned Judge found that although the parties now reside in Sargodha District, they were originally the residents of Gujrat District and were governed by custom prevailing in that district. He came to the conclusion that according to that custom, the daughter is to be preferred to collaterals in the matter of inheritance of the acquired property of her father. As regards the question of estoppel, he expressed the view that there was no evidence whatsoever on this point and accordingly he decided this issue also against the defendants. On the question of limitation, he observed that the suit being one for possession was within time as it had been filed within twelve years of the death of Jalal on the 25th of September 1944. He also stated that this issue was conceded by the learned counsel for the defendants. Finally, as regards the application of section 36 of the Colonization of Government Lands (Punjab) Act, he observed: "The sanctioning of the mutation by the Collector after the death of Jalal was not a valid act within the four corners of the Colonization of Government Lands (Punjab) Act. Under the circumstances, the Civil Court has got jurisdiction to try this suit." On these findings, he decreed the plaintiff‑respondent's suit on the condition that she should pay to the defendants a sum of Rs. 1,740 which they had deposited with the Government as zar‑i‑malikana.

5. In the present appeal, Raja Said Akbar Khan, the learned counsel for the appellants, has raised the following contentions: (1) In view of the grant of proprietary rights to the appellants, the suit was not competent as the occupancy tenancy had been extinguished. (2) The plaintiff could succeed only if she got the order of the Collector, granting proprietary rights to the defendants, set aside, and for that purpose the period of limitation is one year as prescribed by Article 14 of the Schedule to the Limita tion Act. In the alternative Article 120 might apply, but even then the suit was filed after the expiry of six years. (3) The relevant rule of custom has been wrongly interpreted by the trial Court, as the property was ancestral in the hands of Jalal, having been inherited by him from his father Ahmad Khan. (4) That the suit was barred under section 36 of the Coloni zation of Government Lands (Punjab) Act.

6. The first two contentions can be conveniently taken up together. The argument of the learned counsel is that the zar‑i -malikana having been paid by the defendant‑appellants, they have acquired proprietary rights, with the result that there is no longer in existence any tenancy to be inherited. It is submitted that under clause (e) of section 20 of the Colonization of Govern ment Lands (Punjab) Act the Collector was competent to nominate a successor from among the persons enumerated in clause (d) of the section, and even if the defendants be not considered as the rightful heirs of Jalal, they are persons who have been nominated by the Collector, and as such they were competent to acquire proprietary rights by the payment of zar‑i‑malikana, and as long as the order of the Collector granting proprietary rights to the defendants is not set aside, the suit for possession would not lie. It was argued by the learned counsel that at best a suit for mere declaration could lie, but that would be of no avail to the plaintiff‑respondent as she would still not be able to get possession from the defendants who have become proprietors of the land. In support of his contention that it is necessary for the plaintiff to get the Collector's order set aside, Raja Said Akbar Khan relied on several authorities, namely, Bala Tripura Sundaramma v. Secretary of State (A I R 1928 Mad. 282), Gangu v. Mahanraj Chand (A I R 1934 Lah. 334). Province of Sind v. Balomal Narsinghdas (A I R, 1944 Sind 44) and Parbati Nath Dutt v. Rajmohun Dutt (I L R 29 Cal. 367).

7. We do not see any substance in these contentions. In the first place, we find that although in the written statement it was mentioned by the defendants that they had acquired proprietary rights, yet no issue was framed on the question whether the suit was not maintainable for this reason. We also find that at the trial the learned counsel for the defendants conceded that the suit was within time. An obvious implication of this concession made by the learned counsel for the defendants at the trial was that he did not consider that it was essential for the plaintiff to have the order of the Collector set aside before she should ask for posses sion. For these reasons we would be justified in not permitting this question to be raised before us. However, we find that even otherwise the contention cannot prevail, for the reason that the suit of the plaintiff relates to the determination of rights of inheritance which accrued at the time of Jalal's death, and at that stage the question was only regarding the tenancy rights. The mutation of inheritance was sanctioned by the Revenue Officer and not by the Collector, and in this document there is no indication that the Collector acted under clause (e) of section 20 of the Colonization of Government Lands (Punjab) Act. The result, there fore, is that it was solely a question of inheritance with regard to the tenancy rights held by Jalal, and the subsequent acquisition of proprietary rights has proceeded simply on the basis of that mutation of inheritance. The defendants were able to acquire proprietary rights only for the reason that they were deemed to be tenants as heirs of Jalal. A perusal of sections 15 and 30 of tile Colonization of Government Lands (Punjab) Act makes it clear that it is only a tenant who can acquire proprietary rights. Thu is if it is held that the rightful heir of the deceased Jalal was the plaintiff, then it is clear that she would be the person entitled to inherit the tenancy as well as the subsequent proprietary rights. To put it differently, the question for determination in the suit is confined to a point of time when the proprietary rights were not in existence and, therefore, subsequent acquisition by the defendants is irrelevant to the determination of the question of inheritances which opened at the time of Jalal's death. The plaintiff is not suing to deprive the defendants of the proprietary rights acquired by them. In fact in paragraph 7 of the plaint, her case is clearly to the effect that she being the rightful heir of Jalal was the only person competent to acquire proprietary rights and that the proprietary rights acquired by the defendants must enure her to benefit and she is prepared to pay them the zar‑i‑malikana. This assertion in paragraph 7 of the plaint appears to be based on the principle contained in section 94 of the Trusts Act of 1882, which contemplates that:‑ "In any case not coming within the scope of any of the preceding sections, where there is no trust, but the person having possession of property has not the whole beneficial interest therein, he must hold the property for the benefit of the persons having such interest, or the residue thereof (as the case may be), to the extent necessary to satisfy their just demands." This principle appears to us to be applicable in the present case. If it is found that the plaintiff Mst. Khurshid Begum is the right ful heir of Jalal, then any improvements made subsequently by the defendants as ostensible heirs must enure to the benefit of the rightful heirs. For these reasons, we are of the view that it was not necessary for the plaintiff to sue for setting aside the Collector's order granting proprietary rights to the defendants, nor the acquisition in any way stands in the way her bringing the present suit for possession. She is, on the other‑hand, entitled to appropriate the benefit of these proprietary rights if she is found to be the rightful heir. On this view of the matter, the authorities cited by Raja Said Akbar Khan have no application in the present case and the period of limitation will be twelve years from the death of Jalal, the suit being one for possession of immov able property. The result is that the suit has been rightly held to be within time.

8. We may now taken up the third point raised by the learned counsel for the appellants, namely, that the relevant custom has been wrongly interpreted by the trial Court. It is conceded by Raja Said Akbar Khan that the case is governed by clause (b) of section 21 of the Colonization of Government Lands (Punjab) Act. For facility of reference, the whole section may be reproduced here: "When, after the commencement of this Act, any male tenant, who is not an original tenant, dies, or any female tenant dies, marries or re‑marries, the succession to the tenancy shall devolve‑ (a) in the case of a female, to whom the tenancy has been first allotted, on the successor nominated by the Collector from the issue of such female tenant, or from the male agnates of the person, on account of whose services the tenancy was allotted to her ; (b) in all other cases, on the person or persons, who would succeed if the tenancy were agricultural land acquired by the original tenant." It will be seen that according to clause (b) above, the question oft inheritance is to be determined on the assumption that the tenancy was the self‑acquired property of the original tenant Ahmad Khan,) the father of Jalal and grandfather of the plaintiff‑respondent. It is riot disputed that the male of custom applicable in the case is contained in the answer to question 60 of the C Customary Law of Gujrat District by H. S. Williamson Settle ment Officer (1922 Edition). This rule is in the following terms :‑ "As regards ancestral immovable property, daughters inherit in the absence of male lineal descendants through males, the widow and the collaterals of the 5th degree. As regards acquired property they exclude collaterals however near."

9. It is contended by Raja Said Akbar Khan that as the property was not acquired by Jalal, but by his father Ahmad Khan, it has to be treated as ancestral for the purposes of inheritance, and if that is done, then Jalal's daughter would stand excluded. This argument of the learned counsel, however, overlooks the meaning which has all along been assigned to the word "ancestral" as used in rules of Customary Law. On page 664 of Rattigan's Digest of Customary Law, the following definition of ancestral property is given :‑ "Ancestral property means, as regards sons, property inheri ted from a direct male lineal ancestor, and, as regards collate rals, property inherited from a common ancestor. Property which has never been held by the common ancestor cannot be regarded as ancestral in any sense . . . . . . . Under the Customary Law the word `ancestral' carries a peculiar signification and even if the land be ancestral of the last male‑holder it cannot be held to be ancestral qua the party unless it is proved that the common ancestor of the parties had ever held it. Land to be ancestral must have been held by the common ancestor of the parties."

10. From the definition of the term "ancestral" reproduced above, which is based on leading authorities on the subject, it would be seen that in order to succeed in their claim the E present appellants have to show that the property was ancestral qua them, i.e., it was held by a common ancestor of themselves and the plaintiff. That certainly is not the case here as Ahmad Khan was not the common ancestor of the parties. The lowest common ancestor of the parties was Ahmad Khan's father Fateh Din who, however, never held this property. It is clear, therefore, that the property cannot be treated as ancestral qua the defendants and for that reason the daughter will have a preferential right to succeed as compared with the defendants.

11. We now come to the last contention raised on behalf of the appellants, namely, that the plaintiff's suit was hit by section 36 of the Colonization of Government Lands (Punjab) Act. This section lays down that‑ "A Civil Court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the manner in which the Provincial Government or Collector or any other Revenue Officer exercises any power vested in it or in him by or under this Act."

12. It is contended that the question of cancelling the sale in favour of the defendants or their ejectment could clearly be dealt with by the Collector under section 32 of the Act and for that reason the jurisdiction of the Civil Court was barred. We do not see any merit in this contention for the reason that section 32 of the Act is intended clearly for a different purpose. The marginal heading of the section is; "Power of re‑entry in case of squatters and trespassers." The body of this section is to the effect that "When the Collector is satisfied that any person has taken or is in possession of land in a colony to which he has no right or title; the Collector may, in addition to any other powers he may possess, forthwith re‑enter upon the land and resume possession of it and take possession of all crops, trees and buildings thereon on behalf of the Crown without payment of any compensation whatsoever." The language employed in this section clearly shows that the power vested in the Collector is to safeguard the interests of the State and to save State land from illegal occupation by squatters and tres passers. The section is not intended to be operated for the benefit of one private party contending against another. In other words, any dispute regarding title between two private parties cannot be adjudicated upon under section 32 referred to above. That question is one which can only be dealt with by a Civil Court. As authority for this view, one may refer to Ali Muhammad v. Hakim (A I R 1928 Lah. 121) and Jiwana v. Mst. Sahbi (P L D 1954 Lah. 253).

13. For the reasons given above, we see no force in the present appeal which is dismissed with costs. K. B. A. Appeal dismissed.