1990 PLP 1635 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted to the predecessor‑in‑interest of the appellants to examine whether the High Court had justifiably denied the appellants 1/3rd share of the Ihata in a Colony Chak which stood allotted to their predecessor‑in‑interest in 1988.

2. Admittedly Ihata No.59 in Chak No.278 G.B. District Toba Tek Singh was allotted to Ali Bakhsh the predecessor‑in‑interest of the appellants. In the year 1963 after Ali Bakhsh died leaving behind three sons, Atta Muhammad (predecessor‑in‑interest of the appellants) paid the price and obtained the proprietary rights of only 1/3rd portion of this Ihata No.59. The 1/3rd portion was at that stage separated and given No.59/2 measuring 9 Kanals 5 Sarsahis and it continued to be shown in illegal occupation of Atta Muhammad. Shah Muhammad, the respondent applied for its allotment and was preferred over Atta Muhammad. He also got proprietary deed registered on payment of the price paid for it. Not interest of the appellants (Atta Muhammad) instituted a civil suit challenging the allotment of a portion of Ihata No.59 to Shah Muhammad in preference to the appellants' predecessor. This suit was contested and was dismissed by the trial Court which found no illegality in the Order of allotment in favour of the respondent and in his acquiring full title in the same. On appeal the judgment was reversed on the ground that the appellant's predecessor having not violated any terms and conditions of the allotment, he could not be deprived of a portion of the Ihata which was allotted to his predecessor‑in‑interest. The claim was decreed by the Additional District Judge. In Revision the High Court restored the decision of the Civil Judge observing as hereunder:‑-- "

7. It is clear from the judgment of the learned Additional District Judge that he has not taken into consideration the circumstances that after the death of his father the respondent was entitled only to 1/3rd of the Ihata and no more. According to his own showing he has been transferred 2/3rd portion of the Ihata. In these circumstances, he had no locus standi to claim the other 1 /3rd. In fact learned Court below has not at all referred to this aspect of the case nor considered or discussed the oral evidence. He has thus exercised his jurisdiction illegally and with material irregularity.

8. It is clear from the oral evidence produced by the respondent himself that though originally the entire Ihata was allotted to his father but as was stated by P.W.2, it was split up into two portions 59/1 and 59/2 though the reasons for such apportionment were not given by the witness. P.W.3 stated in examination‑in‑chief that Ali Bakhsh had three sons out of whom Nur Elahi and Ali Sher have left after abandoning their possession and after that the petitioner took over possession of the Ihata. In cross‑examination, he stated that Ali Sher had left a year before his statement was recorded and he had gone to Sindh. He has received the amount of his share of the Ihata from the plaintiff‑respondent. He further admitted that Ihata No.57 was also in possession of the respondent jointly with the sons of his brother Nur Elahi. P.W.4 also stated that Ali Sher had given up the residence of the village. He stated that the sons of Nur Elahi had taken Ihata No.57 while Ihata No.59 remained with the respondent. P.W.5 stated that the application of Ali Sher for the allotment of the disputed Ihata No.59/2, submitted on the 27th March, 1967, was pending before the Authorities. This witness was an Ihata Clerk and was produced to make a statement on the basis of the record. Atta Muhammad respondent appearing as P.W. 6 stated that he was in possession of the Ihata for the last 50 years and had paid 2/3rd price for it. He then applied for permission to pay the balance 1/3rd but the disputed portion of the Ihata was given to the defendant‑petitioner without any notice to him. In cross‑examination he denied that out of the price already paid for a portion of the Ihata, the amount contributed by him was according to his own share in that property. He also denied that there was a separate door for the disputed Ihata which has been closed."

3. Syed Iftikhar Ahmad, Advocate, the learned counsel for the appellants contended that the claim of the appellants was ancestral and fully entrenched as no violation had taken place so far as the conditions of the grant were concerned. The appellants could not be denied a portion of the Ihata which was in their possession and was otherwise within their entitlement. There was no occasion to prefer respondent in the matter of a portion of this property.

4. It is clear from the recital of the facts that Ali Bakhsh had obtained two Ihatas in the same Chak. What had the sons of Ali Bakhsh done was that Ihata No.57 had been jointly acquired by all three of them. In this manner Atta Muhammad (the predecessor‑ in‑interest of the appellants) had 1/3rd share in Ihata No.57 and 2/3rd in Ihata No.59. His interest as an heir of Ali Bakhsh extended to only l/3rd portion. He, however, claimed that one brother had surrendered his share in his favour and it was on the strength of that surrender that he claimed and obtained the proprietary rights of 2/3rd share of Ihata No.59, his own act and not of the authorities which led to this division and separation of the property. At that stage the share, of which he became proprietor was identified as 59/1. The other which was left out by them was given Ihata No.59/2. Having not claimed any interest at the appropriate time in that portion, he cannot turn round to lay a claim at a later stage. By dividing the property, by paying the price for only 2/3rd share of the property, by separating the property in the process, the appellant by his own act confined his claim to 2/3rd share only. In the end while possessed of 1/3rd share in Ihata 57, full share in Ihata No.59/1, he could not claim as a matter of right or equity another portion of Ihata, that is 59/2 also. He ceased to be grantee of Ihata No.59/2 after its separation. Hence no question of violation of terms of the grant could arise. There is, therefore, no merit in the appeal and the same is dismissed with no order as to costs. AA./A‑758/S Appeal dismissed.