1998 PLP 388 (SCMR)

NASIR ASLAM ZAHID, J.

This petition has been filed seeking leave to appeal against the impugned judgment dated 6-2-1997 of the Lahore High Court whereby the civil revision filed by the petitioner/defendant has been dismissed. We have heard Mr. Hassan Ahmad Khan Kanwar, learned Advocate Supreme Court for the petitioner and, with his assistance, referred to the relevant record.

2. The dispute relates to land allotted to deceased Muhammad Bakhsh son of Zangi in Chak No.32/W.B. Tehsil and District Vehari under the Cooperative Farming Scheme. Muhammad Bakhsh died in 1953 and the suit land was allotted to his son Abdul Razzaq who was enlisted as member of the Society on 19-3-1954. Plaintiff Mst. Salaman Bibi is the daughter of the deceased and real sister of Abdul Razzaq. Abdul Razzaq died issueless on 14-12-1958. The Cooperative Farming Society, after the death of Abdul Razzaq, allotted the land to Sher Muhammad who was one of the defendants but who also expired and was finally succeeded by petitioner Manzoor Ahmad son of Sher Muhammad. Respondent Mst. Salaman Bibi moved the Revenue Authorities for the attestation of the mutation of inheritance in favour of the legal heirs, which had wrongly been allotted to predecessor of the petitioner. The District Collector, Vehan, accepted her application. Predecessor of the petitioner filed an appeal which was accepted by the Commissioner and the entire suit land was mutated again in his favour. Plaintiff/respondent filed a revision against the order of the Commissioner but the Board of Revenue rejected the revision. She then filed a suit challenging the orders of the Revenue Authorities claiming that the allotment could not go to Sher Muhammad predecessor of the petitioner but the land should have been mutated in favour of the legal heirs of the deceased allottees according to Sharia. The suit was decreed as prayed. The appellate Court dismissed the appeal of the petitioner. The revision filed by the petitioner has also been dismissed in limine by the impugned judgment of the High Court.

3. In support of the present petition, Mr. Hassan Ahmad Khan Kanwar, learned counsel for the petitioner/defendant, has submitted that all the three Courts seriously erred in not considering the rules of the Cooperative Societies. According to learned counsel, on the death of a member, the allotment of the land stands cancelled and the land reverts to the society and this is what had happened and the land was allotted afresh to Slier Muhammad predecessor-in- interest to the petitioner and Mst. Salaman Bibi or any other legal heir of deceased Muhammad Bakhsh and his son Abdul Razzaq could not claim any right or title in the disputed land on the basis of the law of inheritance, which did not apply to the case. It may be mentioned here that the deceased allottee had nominated Sher Muhammad as his nominee. Reference was also made to Rule S (1) and Rule 8 ( ) of the Rules of Cooperative Societies according to which in case the allottee dies issueless and had nominated certain person then the said person would become member of the Society and that in case the deceased allottee had nominated a person then the nominee can be made a member within three months of the death of the original allottee and the land would be given to him. It was further argued that there was a major defect in the suit filed by the plaintiff/respondent inasmuch as the Cooperative Society was not made party to the suit and no notice was served upon the Society under section 70 of the Cooperative Societies Act, 1925.

4. We find no merit in the contentions advanced on behalf of the petitioner by the learned counsel. The High Court has very ably dealt with the case and reference may be made to the following relevant part of the impugned judgment:-- "the respondent-plaintiff produced Exh.P.5 a copy of the Register of the members of the Cooperative Farming Society concerned which is indicative of the fact that one Sher Muhammad was a nominee of Muhammad Bakhsh, the original allottee. After the death of the original allottee Abdul Razzaq is shown to be the allottee/member, which is manifest from Exh.P.6 and Fateh Muhammad as his nominee. Exh.P.7 on which much stress have been laid by the learned counsel for the petitioner reflects that Sher Muhammad son of Hassana is member whereas Shakoor son of Sher Muhammad is a nominee. It is surprising as to how Sher Muhammad became the owner and allottee of the suit land. No allotment proceedings have been placed on record to vouchsafe for the bona fides of the entries made in the relevant register of the Cooperative Farming Society. Even otherwise mere nomination or membership of the Cooperative Farming Society cannot defeat the law of succession. Admittedly the land is a State grant and is governed by The Colonization of Government Lands (Punjab) Act, 1912 wherein section 19-A stipulates as under: "When after the coming into force of Colonization of Governments is Lands (Punjab) Amendment Act, 1951, any Muslim Tenant dies, succession to the tenancy shall devolve on his heirs in accordance with the Muslim Personal Law (Shariat), and nothing contained in sections 20 to 30 of this Act shall be applicable to his case;" In Mst. Amtul Habib and others v. Mst.. Musarrat Perveen and others (PLD 1974 Supreme Court 185) at page 192 it was observed as under- We are of the opinion, however that the correct view has been taken in the cases referred to earlier, namely, that the nomination merely confers a right to collect the money or to "receive the money". It does not operate either as a gift or as a will and, therefore, cannot deprive the other heirs of the nominator who may be entitled thereto under the law of succession applicable to the deceased." Reiterating the aforereferred dictum, the Hon'ble Supreme Court in Fazal Shah v. Muhammad Din and others (1990 SCMR 868 at page 871) it was held as under:-- "As regards the status of the. Member of the Society vis-a-vis the Government and the grant, it has to be noted that the proprietary interest had been conferred on Fazal Shah not by the Cooperative Society but by the State under the Colonization of Government Lands Act. Therefore, notwithstanding his Membership of the Society, it was ultimately to devolve as a State grant on a Member. Membership of the Society is a matter altogether different from succeeding to the estate of the deceased Daulat Shah. So far as the question of succession is concerned that stands resolved by the decision of this Court in Mst. Amtul Habib's case which has been followed by all the three Courts dealing with this case."

8. In view of the aforereferred dictum laid down by the Hon'ble Supreme Court the import of law of succession cannot be frustrated by the act or omission of a functionary of the State and the so-called allotment made in favour of Sher Muhammad predecessor-in-interest of the petitioner-defendant was void ab initio and cannot stand the test of judicial scrutiny. There is no mis-reading or non-reading of evidence to merit indulgence. The two concurrent findings of the learned Courts below do not reflect any jurisdictional defect to warrant interference in the revisional jurisdictional of this Court. There being no merit in this civil revision, the same fails and is dismissed in limine. The High Court has taken a very correct view in the light of section 19-A of the Colonization of Government Lands (Punjab) Act 1912 and the two judgments of this Court reported in PLD 1974 SC 185 and 1990 SCMR

868. In the facts and circumstances of the case, where Sher Muhammad had no right to the allotment of the land in preference to the deceased legal heirs of Muhammad Bukhsh and Abdul Razzaq, non-joinder of the Cooperative Society was not a defect to deny the legal heirs the right to which they were entitled under the law of inheritance. This petition is accordingly dismissed and leave is refused. A.A./M-48/S Leave refused.