1982 PLP 841 (SCMR)

KARAM ELAHEE CHAUHAN, J.‑The land in dispute belonged to one Muslim owner Samanda who sold the same by means of two sale transactions to one Chanda Singh evacuee. As Samanda was governed by agricultural custom whereunder an ancestral property could not be sold except for legal necessity and consideration therefore a collateral of Samanda, namely, Hussain Muhammad, by name filed two suits for a declaration, claiming that the afore said sales were in violation of the relevant customary law on the subject and would not affect his revisionary rights after the death of the alienor. Both the suits were decreed on 4th May, 1910. Samanda alienor died on 7th March, 1961 whereafter his legal representatives on 21‑10‑1963 filed an application under section 22 of the Pakistan Administration of Evacuee Property Act (XII of 1957) for a declaration that the alienor having died, they were now his representative heirs and were entitled to inherit the land aforesaid.

2. The aforesaid application was dismissed by the learned Additional Custodian on 7‑3‑1964. The heirs of Samanda filed an appeal which‑(to ignore the lengthy details of litigation) was ultimately accepted by the learned Custodian of Evacuee Property on 22‑7‑1978 who reversed the order of the learned Additional Custodian and granted the declaration prayed for. This order was passed, it may be mentioned by the learned Custodian after hearing, the allottees to whom the land in the meantime had been allotted under Rehabilitation/Settlement Laws. The said allottees/petitioners then filed a constitutional petition being W. P. No. 953‑R/78 which was dismissed by a learned Division Bench of the Lahore High Court on 23‑4‑1979.

3. The petitioners have come up in a petition for special leave to appeal against the same to this Court.

4. It has been argued by the learned counsel that no doubt respondent 4 to 12 are the heirs of Samanda‑(respondents 4 to 10 being his daughters, respondent No. 11 being his son and respondent No. 12 being his widow)--but they (or some of them) are Muslim Law heirs and all of them could not reap the benefit of the decree which had been obtained by Hussain Muhamma collateral of Samanda on 4‑5‑1910, for the reason that under custom the could not have filed a declaratory suit of the kind as was filed by the collateral above‑mentioned. The contention has no merit. It is laid down in Said v. Faiz (P L D 1959 S C (Pak.) 356) that even Muslim Law heirs are entitled to impeach an alienation which may have been made by a customary owner of any ancestral agricultural land. The finding of the Civil Court in the decree, dated 4‑5‑1910 that the alienation was without necessity has not been challenged before us. In that view of the matter the learned Custodian was justified m giving 'effect to the aforesaid decree and also ignoring the sales to the evacuee after the death of the vendor, and thus acknowledging the title of his heirs. The High Court in the circumstances rightly dismissed the writ petition of the allottees.

5. The result is that this petition has no merit and is dismissed. Petition dismissed.