' Muhammad Rashid, the petitioner, through the filing of the present Constitutional petition, has called in question judgment dated 1&-12-2003, whereby the learned Additional District Judge dismissed petitioner's appeal being incompetent on the ground that the order impugned therein is an interlocutory order passed during the ejectment proceedings.
2. Precisely stated the facts of the case are that the petitioner and respondent No,1 filed two separate ejectment petitions, against the respondent No,2, in respect of the same premises. The petitioner claiming to be the co-owner in the questioned property, also instituted a suit for declaration and permanent injunction against the respondent No,1 and Mst. Nighat Sarwar etc. Thereby challenging the sale-deed executed in favour of respondent No,
1. The petitioner filed an application, under Order I, rule 10, C.P.C. For his impleadment as respondent in the ejectment petition, filed by respondent No,1, titled Muhammad Javed Butt v. Mehar Muhammad Nawaz, which was dismissed by the learned Rent Controller vide order dated 3-9-2003. Petitioner's appeal, against the said order, was dismissed by the learned Additional District Judge vide impugned judgment dated 18-12-2003 on the ground that the order, rejecting petitioner's application, is an interlocutory order, therefore, the appeal is incompetent, hence the present petition.
3. The learned counsel for the petitioner has contended that the order passed by the learned Rent Controller, thereby rejecting petitioner's application under Order I, rule 10, C.P.C. Is a final order, hence the first appeal was competent under section 15 of the Punjab Urban Rent Restriction Ordinance, 1959, therefore, the impugned judgment is not sustainable. He has relied upon Muhammad Mobin Siddiqui v. Mst. Shahzadi Begum and 2 othes 1982 SCM R 233; Syed Sarfraz Ali v.
Shah Jehan Begum and another 1996 CLC 1034 and Habibullah v. Zahir Ali and another PLD 2000 Kar.
238. Conversely, the learned counsel for the respondent, while relying upon Muhammad Irfan v.
Muhammad Bashir and others 2000 PSC 910, has submitted that the order, rejecting the application under Order I, rule 10, C.P.C. Is all interlocutory order and therefore, is not appealable.
4. After hearing the learned counsel for the parties and having examined the case-law on the subject, as cited by both the learned counsel, to my mind, the only question which requires determination by this Court is as to whether the order, rejecting application under Order I, rule 10, C.P.C., filed in the rent proceedings, is an interlocutory or a final order. After the dismissal of the application, filed by an intervener, for his impleadment as party in the rent proceedings, so far as the intervener is concerned, he is out of the Court and his chapter qua the litigation stands closed and thus, the said order cannot be termed as an interlocutory order. Such type of order may be treated as interlocutory order qua the original parties to the lis are concerned.
5. Now coming to the case-law relied upon by both the learned counsel. The principle laid down in the case of Muhammad Mubin Siddiqui (ibid) is that the decision of the Court holding that he was not a tenant was not an interlocutory order and a petitioner should have filed an appeal against the said order of the learned Rent Controller, because, as far as he is concerned, that was the final order in the case. As regards the cases of Syed Sarfraz Ali and Habibullah (supra), although the same were decided in view of the provisions of Sindh Rented Premises Ordinance, 1979, yet the principle laid down in both the judgments is that the order of dismissal of application under Order I, rule 10, C.P.C. Was not an interim order.
' Turning to the case of Muhammad Irfan (ibid), relied upon by the learned counsel for the respondent as well as by the learned Additional District Judge. It has not been specifically held in the said case that the order passed under Order I, rule 10, C.P.C. Is an interim order, however the tenor of the judgment suggests that the order, rejecting application under Order I, rule 10, C.P.C.
Was assailed before this Court through filing Constitutional petition and in that context, it was held by the Honourable Supreme Court of Pakistan in the afore-noted case of Muhammad Irfan that "the High Court also rightly observed that the writ petition against the interlocutory orders could not be entertained in exercise of the Constitutional jurisdiction". In the case of Muhammad Mubin Siddiqui (ibid) the Honourable Supreme Court of Pakistan has specifically held that such types of orders, passed by the learned Rent Controller, are final order and thus, appealable. Additionally, the judgment of Muhammad Mubin Siddiqui was rendered by a larger Bench of the Honourable Supreme Court of Pakistan. In view whereof, the judgment of Muhammad Irfan, relied upon by the learned counsel for the respondent, is of no avail to the respondent.
6. In the above perspective and being guided by the law declared in the case of Muhammad Mubin Siddiqui, I am of the considered view that the order rejecting petitioner's application under Order I, rule 10, C.P.C. Was not all interim order and as regards the petitioner, for all intents and purposes, such an order was a final order and thus, appealable. In the above backdrop, I have examined the impugned judgment and find that the same is not sustainable and reliance of the- learned Additional District Judge on the case of Muhammad Irfan (supra), was not appropriate, as the said judgment as held above, is of no avail to the respondent. As the learned Appellate Authority has non-suited the petitioner only on the ground of incompetency of the appeal and did not render its findings of the merits of the case, therefore, I am inclined to remand the case to the learned Additional District Judge for the decision of petitioner's appeal, afresh, on merits.
7. Upshot of the above discussion is that the present petition is allowed and the impugned judgment dated 18-12-2003 is set aside with no order as to costs. Resultantly, petitioner's appeal, titled Muhammad Rashid v. Muhammad Javed Butt shall deem to be pending before the learned Additional District Judge, who shall decide the same, afresh, on the merits of the case, after hearing the parties and of course in accordance with law.
Petition allowed.
2005 CLC 1156 [Lahore] before Maulvi Anwarul Haq, J ABDUL AZIZ and another---Petitioners versus BASHIR AHMAD and 6 others---Respondents Civil Revision No,963-D of 2001, heard on 1st March, 2005.
West Pakistan Muslim Personal Law (Shariat Application) Act (V of 1962)---. ----S. 2-A---Succession---Last male owner and his wife (belonging to Baloch Tribe) died in year 1934 and 1944 respectively leaving behind a son (defendant) and a daughter--Inheritance mutation was attested in favour of son (defendant)---Daughter died in year 1945, and her son (plaintiff) claimed to be entitled to 1/3rd share in suit-land---Riwaj-eAam of Baloch Tribe prepared during Settlement of 1921-22 was produced in evidence without any objection from plaintiff--- According to such Riwaj-e-Aam, daughter, in presence of son of deceased, would not inherit--- Plaintiff did not rebut such Riwaj-e-Aam---Held: Last male owner and his widow had died much before 15-3-1948---Last male owner was governed by custom in matter of inheritance-Suit-land would devolve upon defendant as under S.2-A of West Pakistan Muslim Personal Law (Shariat Application) Act, 1962, he was the last male holder having inherited suit-land under custom--- Defendant would be deemed to have become full owner of suit-land and inherited land under Muslim Personal Law---Plaintiff's suit was dismissed in circumstances. [pp. 1158, 1159, 1160] A, B & C Mst. Shahzadan Bibi and others v. Amir Hussain Shah PLD 1956 SC 227 and Ghulam Farid and 2 others v. Muhammad Nawaz and 12 others 2000 CLC 1216 ref. Sahibzada Mahboob Ali Khan for Petitioners.
Sardar Manzoor Ahmad Khan for Respondents.
Date of hearing: 1st March, 2005.
' On 23-11-1992 the respondent No,1 filed a suit against the petitioners and the remaining respondents. In the plaint, it was stated that the suit-land was owned by Mahmood son of Karim Bakhsh and Mst. Hayat Khatoon daughter of Esa, Caste Baloch Sohrani. Mahmood died in the year 1934 while Mst. Hayat Khatoon died in the year 1944. They were survived by a son Abdul Aziz i,e, petitioner No,1 and a daughter, namely Mst. Ghulam Zahuran, mother of the respondent No,
1. Mst.
Ghulam Zauhran died in the year 1945. She was entitled to 1/3 share in the estate of her parents.
However, the mutation of inheritance was attested only in favour of petitioner No,1 being the son of the said couple. He sought a declaration that he is entitled to 1/3 share in the suit-land i,e, estate of said Mahmood. The petitioners in their written statement took the plea that the estate of Mahmood devolved upon him. Under Custom. He was a minor at the time of death of his father and the mutation was got entered by Ghulam Rasool the father-in-law of Mst. Zauhran (paternal- grandfather of the respondent/plaintiff). The precise plea was that Mahmood having died before 15-3-1948 and the land having been inherited by the petitioner No,1 he will be deemed to be the exclusive owner of the same. The transferees from petitioner No,1 also filed written statement on the same lines. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit on 17-9-1998. A first appeal filed by the petitioners was dismissed by a learned Additional District Judge, Muzaffargarh, on 27-9-2001.
2. Learned counsel for the petitioners contends that the evidence on record has been misread by the learned Courts below while recording the finding that Mahmood was governed by Muslim Personal Law at the time of his death in the matter of succession. He refers to the evidence led by the respondent-plaintiff himself in this matter. He particularly contends that the Riwaj-i-Aam Exh.D.9/1-2 and Exh.D.10/1-2 had been brushed aside by the learned Additional District Judge illegally. Learned counsel for the respondents, on the other hand, contends that the effect of section 2-A of the Muslim Personal Law (Shariat) Application Act, 1962, is that the estate of Mahmood was to devolve under the Muslim Personal Law. He further supports the impugned judgments and decrees with reference to the evidence on record.
3. I have gone through the copies of the records. It will be seen that the precise question to be decided in this case was as. To whether Mahmood was governed by Custom or Muslim Personal Law in the matter of succession. Bashir Ahmad respondent/plaintiff appeared as P.W.1. He stated his age to be 50 years on 27-3-1995. His evidence on the. Point hardly matters as he was not even born when Mahmood Khan died. P.W.2 is Ghulam Nabi son of Khair Muhammad Caste Baloch Sohrani. He was aged 95 years when his statement was recorded on 27-3-1995. He proceeded to state in the very examination-in-chief that the parties are his old relatives and earlier they followed Custom but now are following Shariat. He was further made to state in his examination-inchief that he cannot say as to whether the daughters get share or not. He also stated that his mother and aunt got a share in inheritance but the reason stated by him was that it was so because they did not have any brother. Now certified copies of the extract from Riwaj-i-Aam of Baloch Tribes were produced as Exh.D.9 and Exh.D.10 and the documents were exhibited without any objection from the plaintiff-respondent. Exh.D.9 was prepared during the settlement of 1921-22. The question posed is if a man dies and he is survived by widow or widows, son or sons, daughter or daughters or other relatives, how the estate devolves. Regarding Jats, it is written that in the presence of sons, they are only entitled to inherit. If there are no sons but there are widows then the widows inherit and if there are no sons and widows then daughters inherit. The answer in respect of the Baloch is the same as the Jats. Instances are also quoted. Exh.D.10 is the answer to a question formulated as to whether or not in the presence of sons, the daughters get the share. The answer is recorded in the same manner i,e, amongst the Jats the daughters do not inherit in the presence of sons and same is the case with the Balochs. Instances are quoted.
4. Now I find that the learned trial Court has not at all referred to this document in its judgment, dated 17-9-1998. The learned Additional District Judge while noting the contention of the learned counsel for contesting parties has referred to the said documents respectively in paras.6 and 7 but while discussing the matter in para.9 of his judgment, he has completely ignored the same.
5. Now as to the evidentiary value of the said Riwaj-i-Aam, I may refer here to the following observations of the Honourable Supreme Court of Pakistan in the case of Mst. Shahzadan Bibi and others v. Amir Hussain Shah PLD 1956 SC 227 appearing, at page 232 of the report:-- "Where a tribe was consulted at the time of the preparation of the Riwaj-i-Aam, an initial presumption arises that a member of that tribe is governed by custom and not by the personal law, and the onus to show that he has ceased to be governed by custom lies on those alleging the same. This is the ratio decidendi of a long string of authorities e.g. Mst. Parvin Kumari v. Gokal Chand Rala Ram AIR 1949 EP 35, Muhammad Yusuf v. Muhammad Abdullah AIR 1944 Lah. 117 and Ata Muhammad v. Muhammad Shafi AIR 1944 Lah.
121.
' The value that has to be attached to the entries in the Riwaj-i-Aam is now no longer in doubt. In Beg v. Allah Ditta 45 PR 1917, it was held that statements in. Riwaj-iAam, which is a public record prepared by a public officer in the discharge of his duties and under Government rules are a strong pieces of evidence even without instances, that their contents are true and must be accepted unless rebutted. Here again, to start with, a presumption would arise that the custom of a tribe is what is described in the. Riwaj-i-Aam. This dictum was reaffirmed in Vaishno Ditt v. Rameshri ILR Lah. 86 (PC)."
There is no rebuttal by the plaintiff-respondent of the said documents further note with some concern that the evidence of the P.W.2 has beeniB misread and misquoted in the impugned judgment. So far as the documents relied upon by the learned Additional District Judge are concerned, these are not relevant at all. He himself noted that these pertained to some other tribes but he has proceeded to rely upon the same by holding that notwithstanding the fact that the documents pertained to some other tribe, area is the same.
6. Now once it is held that Mahmood was governed by custom in the matter of inheritance and in view of the admitted facts that he as well as his widow died before 15-3-1948, the land devolved upon the petitioner No,1 and under section 2-A of the said Act, he is the person who is last male holder having inherited land under custom but by virtue of the said provision of law it shall be deemed that he became a full owner and shall be deemed to have inherited the land under the Muslim Personal Law. Reference be made to the case of Ghulam Farid and 2 others v. Muhammad Nawaz and 12 others 2000 CLC 1216.
7. For all that has been discussed above, the civil revision is allowed. Both the impugned judgments and decrees of the learned Courts below are set aside and the suit filed by the plaintiff-respondent is dismissed without any orders as to costs.