1982 PLP 22 (SCMR)

Date of hearing : 27th October, 1981. MUHAMMAD AFZAL ZULLAH, J.‑ This appeal through special leave is directed against the judgment of the Lahore High Court dated 6‑6‑1967 where by a regular second appeal arising out of a land inheritance case, was dismissed. The respondents had instituted a suit for declaration on to the effect that they were the heirs of Mst. Fatima and thus were the owners of the land in dispute on account of succession. In the alternative, they had also sought a decree as heirs of Faqir Muhammad, father‑in‑law of Mst. Fatima, who was their maternal uncle. They had alleged that the land in dispute which was owned by evacuees, was allotted to Mst. Fatima in lieu of the land left by her in India. She died in March, 1963, and the plaintiffs being heirs, a mutation was sanctioned in their favour. However, on challenge by the defendants, the mutation was decided in their favour by the Revenue Authorities who held that the defendants were the collaterals of Faqir Muhammad, the last male -holder and thus being residuaries of Faqir Muhammad, were entitled to inherit the land. The plaintiffs asserted that the defendants were not the collaterals of Faqir Muhammad and that they (plaintiffs) were the only heirs of Faqir Muhammad. The present appellants (defendants) raised some preliminary objection. Their main plea, on merits, was that Mst. Fatima was no doubt allotted the land in dispute in lieu of the land left by her in India but she was only a limited owner. They asserted that she did not hold the land as daughter -in‑law of Faqir Muhammad but not as heir of Muhammad Ibrahim who was the predeceased son of Faqir Muhammad, and that they were the only collaterals and Muslim Law heirs of the real owner, therefore, they would ex clude the plaintiffs. It was also asserted that the plaintiffs had no relationship with him (Faqir Muhammad) and were not entitled to inherit the land in dispute. The plaintiffs at a later stage of the trial amended their pleadings by urging that they were entitled to the land in suit as heirs of Mst. Fatima as then asserted by them, she was the full owner. In reply to this plea raised in the amended plaint, the defendants reiterated their position as noted above. The following issues were framed:‑ (1) Whether the late Mst. Fatima Begum was full owner of the land in suit ? (2) If Mst. Fatima Begum was limited owner of the land in suit, are the plaintiffs her heirs (3) Are the plaintiffs heirs of the late Faqir Muhammad ? (4) Are the defendants heirs of the late Faqir Muhammad ? (5) Relief . As a result of the trial, the learned Court held that Mst. Fatima Begum was limited owner and further that neither she nor the plaintiffs (respon dents) were not the heirs of the last male-holder (Faqir Muhammad). Accordingly, the respondents' suit was dismissed. On first appeal, the learned Additional District Judge treated Mst. Fatima Begum as full owner of the property allotted to her in Pakistan on the ground that she was holding the land as an equitable grant and not on the basis of devolution of an estate. That being so, notwithstanding the limited character of her holding in India, she would be treated as the full owner of the land allotted to her in Pakistan, therefore, her own heirs would inherit the land. Accordingly, the plaintiffs' suit was decreed. The defendants, viz. the present appellant then filed a second appeal in the High Court which was dismissed as the law laid down by a Full Bench of that Court in Sher Muhammad v. The Additional Rehabilitation Commissioner, Multan and others (P L D 1968 Lah. 234), was against them. They then sought leave to appeal which was granted to consider whether the decision by this Court in Civil Appeal No. 303 of 1969 Inayat etc. v. Mst. Sabi and others (P L D 1971 S C 791), would not cover the present case. The learned counsel for the appellant has, in support of this appeal, cited the afore‑referred judgment. He has also relied on Muhammad Yaqoob v. Member, Board of Revenue, Lahore and 3 others (P L D 1973 S C 304). It was held in the former case and reiterated in the later that land held in Pakistan by a female in lieu of her limited estate abandoned in India shall devolve on termination of limited estate on persons who would have succeeded to the last full owner under the Muslim Law. This appeal was heard on 25‑10‑1981. The learned counsel appearing for the respondents did not dispute the legal position as settled by the afore- noted judgments of this Court. He, however, wanted to challenge the decision of the leaned trial Court on questions of fact. The case was adjourned for today. None has appeared from the respondent's side to oppose the appeal being accepted on consideration of legal question; to examine which only, leave was granted by this Court, we accordingly, in view of the law already laid down by this Court, allow this appeal with costs, set aside the judgment and decrees in first and second appeals and restore the judgment and decree of the learned trial Court. Appeal allowed.