' MAULVI ANWARUL HAQ, J.---On 15-1-1994 Mst. Aysha Begum, the deceased mother of respondents Nos. 1 to 3 (hereinafter to be referred to as the plaintiff) filed a suit against the appellants and the remaining respondents. The said plaint was amended from time to time, inter alia, because of the death of the parties thereto. According to the last amended plaint, the plaintiff is the daughter of Abdul Rahim Khan while Abdul Karim Khan, the predecessor-in-interest of the appellants, is the brother of the said Abdul Rahim Khan. In the wake of independence of the country; she migrated to Pakistan as a refugee in the year, 1948. She filed a claim in respect of land abandoned by her in India. She was allotted and confirmed the land described in para.3 of the plaint. The revenue estate was subjected to consolidation as a result whereof she came to acquire the suit-land, mentioned in sub-para. (ii) of para-3 of the plaint. The said Abdul Karim Khan moved an application to the Additional Rehabilitation Commissioner for cancellation of the said land on the plea that her limited right to hold the land terminated under custom on her, marriage in the year, 1945. The application was dismissed by the said officer on 28-12-1951. Abdul Karim Khan then filed a civil suit against the plaintiff for a declaration that he was exclusively entitled to the suit-land on the basis of the custom applicable to the parties. This suit was tried and dismissed by a learned Civil Judge, Gujranwala. A first appeal filed by Abdul Karim Khan was dismissed by District Judge, Gujranwala, holding that under the relevant custom, the plaintiff was entitled to the land to the exclusion of said Abdul Karim Khan. Then, there is a reference to an order passed by AC-II Grade on 17-12-1961 whereby he sanctioned Mutation No,371 mutating the land in favor of Abdul Karim Khan.. Then, it is mentioned that without knowledge of the plaintiff, an appeal was got filed in her name and got dismissed. These orders were stated to be void ab initio The plaintiff was stated to be a Pardahnashin lady who had never appeared before any such Authority or to have made any statement. The appellants are in possession of the said land illegally. It was explained that she is a Pardahnashin lady while her husband died after a long illness in July; 1987. It was then explained that the land in India was not ancestral qua Abdul Karim Khan and under the applicable custom the daughter was to exclude the collateral, the property being self-acquired. The alternate plea raised was that under the Muslim Personal Law, she is entitled to half of the land. With these averments, a decree for possession of the land was prayed for. In the alternate, a decree for joint possession was prayed for along with a decree for mesne profits. The suit was contested only by the appellants who filed a written statement. They objected that the suit is barred by time vis-a-vis the mutation sanctioned on 17-12-1962 and dismissal of appeal filed by the plaintiff on 9-3-1963. It was then stated that both theorders were passed by the Rehabilitation and Settlement Authorities in exercise of their exclusive jurisdiction and the civil Court had no jurisdiction in terms of sections 22 and 25 of the Displaced Persons (Land Settlement) Act, 1958. All the orders passed by the Settlement and Rehabilitation Authorities sanctioning the mutation have become past and closed transactions. In reply to para-3 of the plaint, it was admitted that the land was allotted and confirmed in favor of the plaintiff. However, the allotment was stated to be invalid. The dismissal of the application by the Rehabilitation Authorities, the filing of the suit as also of the appeal and the dismissal thereof was also admitted. However, these judgments and decrees were also stated to be without jurisdiction. Reference was made to order, dated 9-10-1961 passed in R.S.A. No,148/55 filed against the said judgments and decrees to the effect that the matter is to be decided by the Rehabilitation Authorities. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit on 14-4-2001. A first appeal filed by the appellants was dismissed by a learned A.D.J., Gujranwala, on 27-5-2003.
2. Mr. Jari Ullah Khan, Advocate/learned counsel for the appellants contends that the matter pertaining to entitlement of land located in India could have been decided only by the Rehabilitation Authorities and it was so decided and as such the judgments and decrees passed in the, suit and the appeal would be having no effect on the said decisions. He places reliance on the case of Mst. Zainab v. Mst. Raji and others (PLD 1960 SC 229) to urge that the said judgments and decrees would amount to no more than a pious resolution and would be a mere assay in futility vis-a-vis the decisions taken by the Rehabilitation Authorities. Further contends that the matter of limitation has not been correctly dealt with by the learned Courts below. Mr. Ijaz Feroze, Advocate/learned counsel for the contesting respondents, on the other hand, contends that, in the first instance, the ultimate decision was not at all taken by the Rehabilitation or Settlement Authority. It was a Revenue Officer who sanctioned the mutation and dealt with the appeal allegedly filed by the plaintiff. Further contends that, admittedly, the land stood confirmed in the name of the plaintiff-lady and this being so, the said question of entitlement was decided by the learned civil Court and the Court of first appeal in favor of his client in the suit filed by the late Abdul Karim Khan with jurisdiction. He relies on the case of Mst. Ghulam Fatima v. Muhammad Hussain and 5 others (PLD 1976 SC 729). Regarding limitation, his case is that the plea of adverse possession as such was not set up and upon proof of title, the plaintiff is entitled to possession. Further contention is that the orders impugned in the suit being wholly without jurisdiction, such a question would not arise. Generally argues that in view of the latest trend of the judgments of the"Apex Court in disputes qua inheritance, the question of limitation would not arise at all.
3. I have gone through the records of the learned Courts below, with the assistance of the learned counsel for the parties. Although I have reproduced in some details the material contents of the pleadings of the parties above, I deem it appropriate to put the facts as gleaned upon examination of the entire record in chronological order with reference to the relevant pieces of evidence. I have already noted above that there is no dispute that the land was not only allotted but also was confirmed in favor of the deceased-plaintiff. The copy of RL-II has been produced by the appellants themselves as Exh.D.3 and it narrates that the Khatuni of land proposed to be transferred was delivered to the husband of the plaintiff-lady on 13-6-1952. He accepted the proposal and the land was confirmed on 27-6-1952. Abdul Karim Khan, in the first instance, approached the Rehabilitation Authorities claiming that he is the exclusive owner of the land, subject-matter of the claim filed by the plaintiff. However, his plea was rejected. Thereafter, he filed a suit on 1326-1952 seeking similar declaration. The suit was tried on merits and dismissed on 12-10- 1953 vide judgment (Exh.P.13). First appeal filed by Abdul Karim Khan was dismissed by learned District Judge, Gurjranwala, vide judgment, dated 3-1-1995 (Exh.P.17). A copy of the order, dated 9- 10-1961 passed by this Court in R.S.A.No, 148/55 is available at pages 483 to 485 of the trial Court file.
The order narrates that Mr. Muhammad Nasir, Pleader who is one of the appellants and is also general attorney of the other appellants before their Lordships wishes to withdraw the appeal in view of the recent decision of the Supreme Court reported as PLD 1960 SC 229. The appeal was accordingly allowed to be withdrawn and dismissed .With no orders as to costs, with an observation that it will not preclude the said appellants to pursue the remedy before the Rehabilitation Authorities. It appears that thereafter a revision petition was filed against the order, dated 28-12-1951 rejecting his application. This revision was decided by a Settlement and Rehabilitation Commissioner, Lahore, vide order, dated 2-4-1962 (Exh.D.1) he found that succession to the estate of Abdul Rahim Khan opened because of marriage of Mst. Ayesha (plaintiff) and the matter had to be decided afresh in accordance with Para. 46-A of the Rehabilitation Scheme.
Thereafter, he proceeded to observe that the matter will have to be verified and decided by the Revenue Officer after necessary inquiries. In the same breath, he remanded the case to the Officer- on-Special Duty, Central Record Office for fresh decision. The said officer refused to decide the case and directed the parties to approach the Revenue Officer. This order was passed on 1-8-1962 (Exh.D.2). Thereafter, the matter was taken up by the Revenue hierarchy. It was, thus, ultimately an AC-II Grade who decided thismatter and the Mutation No,371 was attested on 17-12-1962 (Eh.P.19).
The appeal statedly filed was also dismissed by an Additional Deputy Commissioner (Consolidation), Gujranwala, exercising the powers of Collector on 9-3-1963 (Exh.D.6).
4. I have already noted above that it has been repeatedly urged in the written statement by the appellants and contended by their learned counsel at the bar that the said matter was decided vide the said mutation by the Rehabilitation Authorities and the appeal was so decided. To my mind, the said statement is wholly incorrect. It is but apparent that somehow or the other ultimately the matter came to be decided by an AC-II *Grade, of course, under the Punjab Land Revenue Act, 1887 (which was then in force) and so is the case with appeal.
5. To my mind, by the time the civil Court gave its decision and the first appeal filed by Abdul Karim was decided vide Ex.P.17, the land stood confirmed in favor of the plaintiff-lady and as observed by the Hon'ble Supreme Court in the said latter judgment in the case of Mst. Ghulam Fatima being relied upon by Mr. Ijaz Feroze. This was a stage where civil Court had all the jurisdiction. The reason being that a confirmed allottee is stated to be vested with certain rights in the land confirmed in her favor. The matter had further been clarified by the Hon'ble Supreme Court in the case of Muhammad Siddiq and 2 others v. Muhammad Sharif and 2 others (1992 SCM R 2260) by making the distinction in the matter with reference to the point of time when the land is confirmed.
According to their Lordships, before the said point of time, it is the exclusive jurisdiction of Rehabilitation Authorities to decide the matter as to entitlement to succeed while after the said period of time it is the civil Court which has to decide this matter and the reasons stated by their.
Lordships are that the effect of permanent settlement of land in favor of the allottee of such land would be that the land absolutely vested in such allottee and would go out of the purview of the Displaced Persons (Land Settlement) Act, 1958 as also the Rehabilitation Scheme except to the extent provided in sections 10 and 11 of the said Act of 1958.
6. Having, thus, examined the records in the light of the said legal position emerging on record, I do find that the matter was never decided by any Rehabilitation Authority and even if it be assumed that it was so decided by Rehabilitation Authorities then the same is without jurisdiction as by that time inter partes judgments passed by civil Court and confirmed by the higher forums were in the field and had a binding effect as the matters were dealt with at a point of time when the land stood confirmed in favor of the plaintiff-lady.
7. So far as the question of inheritance itself is concerned, both, theparties contended that the same is governed by custom each one with the plea that the other stands excluded and in the earlier round it was finally settled that under the applicable custom, the daughter excludes the ollaterals .
8. Coming to the matter of limitation, as stated by me above, the entire written statement is based on the erroneous assumption that the offending orders were passed by Settlement and Rehabilitation Authorities whereas the record does not support the said contention. The plea of adverse possession has not been raised. It is not also the case of the appellants that they dispossessed the deceased-lady. The matter is, therefore, governed by Article 144 of the Limitation Act, 1908 and no plea of adverse possession is there. On this simple ground the plea of limitation is baseless. Even otherwise, in the circumstances of the this case and the history narrated above, the question of limitation hardly arises. The R.S.A. Accordingly is dismissed but without any orders as to costs.
9. The records of the learned Courts below be remitted back immediately.