' The facts giving rise to this regular second appeal are that one Mubarik Ali Khan owned some land in the District of Hoshiarpur (India). He had a son named Imdad Ali Khan, who was married to Mst.
Rashidan. Imdad Khan died during the life time of his father and thus Mst. Rashidan Ali became a widow. Mubarik Ali Khan expired in the year 1934 and thereupon the land left by him devolved upon his widowed daughter-in-law, Mst. Rashidan. After Independence, she migrated to Pakistan and filed a claim in the district of Jhelum. Consequently, land measuring 36 kanals and 13 marlas was transferred to her in the revenue estate of Chatta, District Jhelum. This land was sold by her in favour of the respondents, Lal and three others, on 30th December 1963, by means of an oral sale which was followed by a mutation. Mst. Rashidan died on 29th January 1964 and thereupon the appellant, Feroze Din, filed a suit challenging the said sale. It was urged by him that Mst. Rashidan had got the land left by her father-in-law, Mubarik Ali Khan in Hoshiarpur District as a limited owner, under custom, and, therefore, she was a limited owner of the disputed land also and could not transfer it in favour of the respondents. As regards his own entitlement, it was asserted by the appellant that he was the son of Fateh Din who, according to him, was the younger brother of Mubarik Ali Khan and, therefore, he was entitled to get the whole of the disputed land. It was contended by him that Mst. Rashidan had no share in the land in question under custom or under Muslim Law. With these allegations, the appellant prayed for possession of the entire, land in dispute.
2. The respondents resisted the suit on various grounds which are reflected in the following issues framed in the suit:-
(1) Whether the land in dispute belonged to Mubarik Ali Khan?
(2) Whether Mst. Rashidan got the land in dispute as a limited owner under custom?
(3) Whether the land in dispute is ancestral qua the plaintiff and Mubarik Ali Khan?
(4) Whether the plaintiff is a reversioner of Mubarik Ali Khan within the 5th degree?
(5) What is the share of the plaintiff in the land in suit?
(6) Whether sale of the suit land in favour of the defendants is illegal and fictitious?
(7) Whether the defendants are bona fide purchasers of the suit land and are entitled to compensation in the event of a decree passed in favour of the plaintiff?
(7-A) Whether the suit is not maintainable because the suit property is evacuee?
(8) Whether the suit is barred under Shariat Act of 1962 ?
(9) Relief.
3. The Senior Civil Judge, Jhelum, who decided the suit, answered the first two issues in favour of the appellant (plaintiff). He disposed of Issue No, 3 of suit with the observation that if the appellant was a legal heir of Mubarik Ali Khan' he could challenge the alienation of Mst. Rashidan without establishing that the land in dispute was ancestral qua him and Mubarik Ali Khan. Issue No, 4 was also answered in the affirmative. While deciding Issue No, 5 it was held by the learned Senior Civil Judge that being the sole heir of Mubarik Ali Khan the appellant was entitled to inherit his property after the death of Mst. Rashidan. The remaining issues were also answered in favour of the appellant and his suit was decreed.
4. Feeling aggrieved by the judgment and decree of the trial Court the respondents went in appeal before the Additional District Judge, Jhelum. The view taken by the learned Additional District Judge was that since the Rehabilitation Authorities had transferred the land in dispute to Mst.
Rashidan without any restraint on her right to alienate the said land the Senior Civil Judge had no jurisdiction to hear the suit. He. Therefore, without deciding the other issues involved in the case, accepted the appeal and dismissed the suit which had been decreed by the learned trial Court.
5. Being not satisfied with the judgment and decree of the learned Additional District Judge, the appellant has come up in second appeal to this Court.
6. Learned counsel for the appellant submitted that the appellant had not challenged the order by which the Rehabilitation Authorities had transferred the land In dispute in favour of Mst. Rashidan and had simply questioned the validity of the alienation of the land made by her on the ground that she was a limited owner of the land and, therefore, his suit could be heard by the trial Court. It was also contended by him that the controversy, if any, regarding the jurisdiction of the Civil Courts in regard to the matters like the one involved in the present case has since been settled by the enactment of the Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Act, 1975, hereinafter referred to as the said Act, where under the alienation made by Mst. Rashidan could be challenged before a Civil Court.
7. In reply, it was urged by the learned counsel for the respondents that if the appellant wanted to take the benefit of the said Act, he should have made an application for review of the order of the Rehabilitation Authorities, transferring the disputed land to Mst. Rashidan, or should have filed a suit challenging the alienation made by her in favour of the respondents, within one year of the coming into force of the said Act and since the (appellant) had not taken either of the two steps within the stipulated period, the said Act was of no avail to him.
8. The law embodied in the said Act was framed with a view to give effect to the judgment of the Supreme Court in Hadayat and others v. Mst. Mehtab Bibi and another (1). In that judgment it was ruled by their Lordships of the Supreme Court that where any land is transferred to a female in lieu of the land left by her in India as a limited owner she would be treated as a limited owner qua the land transferred to her and not a full owner thereof. The said Act was to take effect notwithstanding anything to the contrary contained in any decree, judgment or order passed in any suit, appeal or other proceedings by any Court or authority. It was also given retrospective effect from 15th day of March 1948. Its relevant provisions are contained in sections 2 and 3 which read as follows :- "2. Removal of difficulties.-Notwithstanding anything to the contrary contained in any other law for the time being in force, all decrees, judgments or orders passed in any suit, appeal or other proceedings by any Court or other authority treating a refugee female allottee as full owner of the property allotted to her in lieu of the property abandoned by her in India or to which she was otherwise entitled; as a limited owner, shall be of no legal effect and such suit, appeal or other proceedings shall, on an application made by an affected person within one year of the commencement of this Act be decided afresh.
3. Permission to file fresh suits, etc.-Any person aggrieved by an alienation or an order of succession with regard to any property allotted to a refugee female in lieu of the property abandoned by her in India or to which she was otherwise entitled as a limited owner under custom, and who could not challenge such alienation or succession, may call it in question in a Court or before any other authority within one year of the commencement of this Act."
9. As indicated above, it was contended by the learned counsel for the respondents that since no application or suit was filed by the appellant within one year of the coming into force of the said Act he could not take the benefit of it. I am unable to agree with him. He was required to make an application under section 2 of the said Act, if there had been any decree, judgment or order passed in any suit or appeal or in any other proceedings by an Court or any other authority declaring Mst.
Rashidan as a "full owner" of the disputed land. There was no such decree, judgment or order in respect of the disputed land when the said Act came into force. The order of the Rehabilitation Authorities transferring the disputed land to her cannot be treated as an order within the meaning of section 2 because it was no expressly stated in that order that the land in dispute was being given to her as "full owner". Section 2 is, therefore, not applicable to the present case. On the other hand, it eminently attracts the provisions of section 3 of the said Act because the appellant was aggrieved by the alienation made by Mst. Rashidan in favour of the respondents. Under section 3, he could file a suit within one year of the commencement of the said Act. It was on 31st March 1975 that the said Act had come into force. The suit given rise to the instant appeal was filed by the appellants in the year 1964. It had been decreed by the trial Court on 29th March 1966. The respondents' appeal against the judgment and decree of the trial Court was accepted on 16th May, 1966 with the result that the suit was dismissed. The appellant filed this second appeal on 31st July, 1966 to challenge the decree of the first appellate Court. It was still pending when the said Act came into force on 31st March, 1975. As ruled in F. A. Khan v. The Government of Pakistan (2) original and appellate proceedings are steps in one proceeding. {{FOOT NOTE}}
(1) 1972 SC M R 243 (2) PLD 1964 SC 520 {{FOOT NOTE}} In view of the pendency of this appeal, therefore, it was not necessary for the appellant to file a fresh suit within one year of the coming into fore of the said Act and he can press into service the provisions of section 3 for the purpose of seeking relief asked for in the appeal in hand.
10. Section 3 empowers the civil Courts to adjudicate upon the validity or otherwise of an alienation made by a female refugee of the land transferred to her in lieu of the land held by her in India. It would, therefore, follow that the civil Courts have jurisdiction to go into the question relating to the validity of the alienation of the disputed land made by Mst. Rashidan in favour of the respondents.
In the existing state of law, therefore, 1 am unable to uphold the finding of the learned Additional District Judge that the civil Court had no jurisdiction to decide the matter in dispute.
11. As indicated above, the learned Additional District Judge had not decided the issues other than Issue No, 3, relating to the question of jurisdiction. His relevant observations read thus:- "The upshot of the above discussion is that the learned Senior Civil Judge, had no jurisdiction to hold that Mst. Rashidan was a limited owner under custom over a piece of land which was allotted to her by Rehabilitation Authorities. As I have exhaustively dealt with issue No, 3, and while so discussing have also made passing reference to the other issues, so I do not feel the necessity to touch those issues for discussing again."
' The case will, therefore, have to be sent back to him for fresh decision after recording findings on issues other than issue No, 3.
12. In result, 1 accept the second appeal, set aside the judgment and decree of the learned Additional District Judge and remand the case to him with the direction that he shall, after rehearing the case on issues other than Issue No, 3, record clear and independent findings on those issues and then decide the first appeal again in the light of the above observations and according to law. There shall be no order as to costs.