' ABDUS SATTAR ASGHAR, J.---Petitioners have invoked the constitutional jurisdiction of this Court under Article 199 to impugn the order dated 21-4-2010 passed by learned Additional District Judge, Sargodha whereby civil revision lodged by respondents Nos.2 to 8 was accepted and plaint of the suit for declaration etc. Lodged by the petitioners was rejected under Order VII, Rule 11, C.P.C.
2. Brief facts leading to this petition are that parties' grandfather namely Majeed Ullah Khan died in the year 1938 leaving behind a widow namely GuI Jan and two sons namely Shah Jahan Khan and Lal Badshah. Petitioners are legal heirs of Lal Badshah whereas respondents are legal heirs of Shah Jahan Khan. Majeed Ullah Khan was allottee of the agricultural land under the Horse-Breading Scheme. Consequent upon the demise of Majeed Ullah Khan the said land was transferred in the name of Shah Jahan Khan Father of respondents Nos.2 to 7 and husband of respondent No,8 vide Mutation No,40 dated 23-5-1938. After the demise of Shah Jahan Khan, the land further devolved upon respondents Nos.2 to 8 vide Mutation No,204 dated 26-1-1979. Respondents Nos.6 and 7 also mutated a part of the said land in favour of respondents Nos.2 to 5 vide Mutation No,483 dated 11- 8-2006. Respondent No,8 also transferred a part of the said land in favour of respondents Nos.9 and 10 vide registered deed No,35 dated 27-1-2007 and Mutation No,492 dated 5-3-2007. The petitioners being legal heirs of Lal Badshah son of Majeed Ullah Khan lodged a suit for declaration etc. In the year 2009 challenging the aforementioned transactions on the ground that their predecessor in interest namely Lal Badshah was unlawfully deprived of his legal share in inheritance as son of Majeed Ullah Khan violative to the Muslim Laws of Inheritance, therefore, petitioners being co-sharers be declared lawful owner to the extent of their respective shares in the suit land and the above cited transactions be declared illegal, void abinitio and of, no legal effect as against their rights.
3. Respondents Nos.2 to 8 lodged an application under Order VII Rule 11 C.P.C. On 24-4-2009 for rejection of the plaint in the said suit. The said application was resisted by the petitioneRs, The learned trial Court dismissed the same vide order dated 5-11-2009. Being aggrieved respondents Nos.2 to 8 assailed the said order through revision petition before the learned Additional District Judge Sargodha which was allowed and the plaint was rejected vide impugned order dated 21-4- 2010.
4. It is argued by learned counsel for the petitioners that the learned Additional District Judge Sargodha has passed the impugned order on wrong premises of law and facts without application of judicious mind as well as without taking into consideration the facts and material available in the contents of the plaint necessitating a full dressed trial; that if benefit of the section 19-IA of the ColonizatiOn of Government Lands (Punjab) Act (V of 1912) is not available to the petitioners then they become eligible for 1/2 share in the land under section 20 of the Act ibid and that Rule of Primogeniture was not applicable to the tenancy granted to their predecessor Majeed Ullah Khan under the Horse-Breeding Scheme; that learned Additional District. Judge while passing the impugned order misinterpreted the provision of section 20 of the Colonization of Government Lands (Punjab) Act (V of 1912) while accepting the revision petition lodged by respondents Nos.2 to 8; that the learned Additional District Judge through the impugned order although held that the succession of Majeed Ullah Khan was governed by section 20 of the Act but failed to appreciate that the said Section maintains that if original tenant dies the succession of tenancy will devolve in the following order:--
(a) the male lineal descendants of the tenant in the male line of descent (the term lineal descendant's shall include an adopted son whose adaptation has been ratified by a registered deed);
(b) the widow of the tenant until she dies, or remarries, or loses her rights under the provisions of this Act;
(c) the unmarried daughters of that tenant until they die or marry, lose their rights under the provisions of this Act;
(d) the successor or successors nominated by the tenant by registered deed from among the following persons, that is to say, his mother, [his pre--deceased son's widow, his pre-deceased grand-son's widow] his married daughter, his daughter's son, his sister, his sister's son, and tie male agnate members of his family;
(e) the successor or successors nominated by the Collector from among the persons enumerated in clause (b) of this section.
' That in the light of the expression 'male lineal descendant' used in clause (A) of the above quoted provision of Section 20 of the Act petitioners' father Lal Badshah being one of the male lineal descendants was also entitled to the tenancy along with his elder brother Shah Jahan Khan but unlawfully deprived. He has also taken reliance upon Mst.Ghulam Bano alias Gulab Bano and others v. Mst.Noor Jehan and others (2005 SCM R 658).
5 . It is resisted by learned counsel for the respondents with the contentions that petitioners have no locus standi or cause of action, therefore, learned Additional District Judge has rightly accepted the revision petition to reject the petitioners plaint in the suit for declaration etc.; that the impugned order does not suffer from any factual or legal infirmity; that the petitioners have no case to invoke the constitutional jurisdiction of this Court; that admittedly land was allotted to the predecessor in interest of the parties under the Horse-Breeding Scheme, therefore, in terms of section 4 of the Colonization of Government Land (Punjab) Act, 1912 read with Schedule-I the provisions of section 20 of the Act are not applicable to this case; that as per terms and conditions of the Horse-Breeding Scheme 1904-1905 under which the land was allotted to the parties' predecessor in interest Rule of Primogeniture was applicable in case of death of the original allottee and for this reason the impugned Mutation No,40 dated 23-5-1938 although bearing the name of Lal Badshah as son of Majeed Ullah Khan was not allotted any land being younger brother of Shah Jahan Khan; that the learned Additional District Judge although misquoted the provisions of sections 19-A and 20 of the Act however rightly rejected the plaint under Order VII, Rule 11, C.P.C.
6. Arguments heard. Record perused.
7. Admittedly petitioner was allotted of the land under the Horse-Breeding Scheme; it is so revealed through Paragraph No,1 of the plaint. He died in the year 1938. The impugned Mutation No,40 was attested on 23-5-1938. Copy of the said mutation is available on the record which contains pedigree table showing Shah Jahan and Lal Badshah as his sons. It also transpires that the land adopted in the name of Majeed Ullah Khan under the Horse-Breeding Scheme was transferred in the name of his elder son namely Shah Jahan Khan.
8. At this stage, it would be expedient to reproduce hereunder section 4 of the Colonization of Government Land (Punjab) Act, 1912 along with relevant extract of Schedule-I attached thereto for ready reference:-- "Application of the Act. This Act shall, unless the [Provincial Government] otherwise directs, apply to land to which the provisions of the Government Tenants (Punjab) Act, 1893, have been applied and to any other land to which the [Provincial Government] may by notification in the official Gazette apply it and which at the time of the notification was the [Property of the Provincial Government].
Provided that [unless the [Provincial Government] by general or special order otherwise directs] nothing in sections 20, 21, 22 and or in the proviso to section 14 of this Act shall apply to tenancies specified in Schedule I of this Act, or to any class of tenancies created hereafter which the [Provincial Government] may declare to be Scheduled tenancies.
SCHEDULE-I ' List of excepted tenancies referred to in section 4.
' A -- In the Lower Chenab Colony the tenancies of tenants holding on the conditions applicable to
(I) ----
(2) --
(3) ---
(4) - (5)
(6) ....
' B -- In the Lower Jhelum Colony the tenancy of tenants holding on the conditions applicable to.
(1) Horse-breedings tenants."
Admittedly the land pertaining to tenancy in question falls within the Lower Jhelum Colony Area.
Bare reading of the afore quoted proviso of section 4 of the Act read with relevant extract of the Schedule-I makes it crystal clear that section 20 of the Act is not applicable to the Tenancies granted under the Horse-Breeding Scheme in the Lower Jhelum Colony Area.
9. Section 19-A of the Act was introduced in the year 1951 since the parties' predecessor in interest Majeed Ullah Khan died before promulgation of the Colonization of Government Lands (Punjab)
(Amendment) Act, 1951 therefore provisions of section 19-A of the Colonization of Government Lands (Punjab) Act, 1912 are also not applicable to this case.
10. Besides promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 being general law on the subject would also have no derogatory effect on the terms and conditions of the tenancy granted to the parties' predecessor in interest under the Horse-Breeding Scheme pertaining to the lands maintained under the Punjab Tenancy Act (Punjab) Act, 1893 a special law on the subject.
11. Learned counsel for the respondents have furnished a copy of terms and conditions regarding tenancies under the Horse-Breeding Scheme 1904-1906 Tehsil Sargodha along with Schedule issued by Revenue Department Government of India. Relevant extract whereof reads below for ready reference:-- {{URDU TEXT }}
12. Afore quoted terms and conditions of the Horse-Breeding Tenancy Scheme makes it crystal clear that in the year, 1938 when Majeed Ullah Khan died the Rule of Primogeniture was applicable.
Learned counsel for the petitioner has also annexed a copy of letter issued by Deputy Secretary Government of the Punjab Development Department.
An extract whereof reads below:-- "From ' W.F.G.Lo &illy, Esquire,
1. C. S. '
' Deputy Secretary to Government, Punjab; Development Department.
' To, ' The Commissioner, Rawalpindi Division.
'Subject:- Abrogation of horse breeding conditions in the Lower Jhelum Colony, Shahpur District.
' Sir, ' I am directed to forwarded herewith a copy of Punjab Government Notifications Nos.4396-C, 4397-C, 4398-C and 4399-C dated the 14th October, 1940 abrogating the special conditions of horse breeding and succession by primogeniture, applicable to horse breeding peasants an Nazrana-paying horse breeding tenants, in the Lower Jhelum (Colony Shahpur district). I am also to enclose for wide publicity a copy of the announcement made by the Hon'ble Minister of Revenue, at Sargodha, on 14th October, 1940, on this subject. It is to be noted that the primogeniture conditions will be abrogated from the date of Hon'ble Minister of Revenue's announcement while horse breeding conditions will continue until 1st January 1941.
(2) I am further to convey the orders of Government of the Punjab that on the abrogation of the conditions referred to above malikana shall be charged from the grantees concerned at the rate of -/6/- (six anas in the rupee of land revenue with effect from kharif 1941m instead of 12/- anas (annas two only) per allotted acre per harvest for formal charged.
(3) The Governor of the Punjab is also pleased to permit these grantees to acquire proprietary rights in following manner:-- (a)
(b)
(c)
(4) --------------------------
(5) --------------------------
(6) -------------------------- ' Sd/ ' I have the honour to bow ' Sir, ' Your most obedient servant, ' Sd/- ' H.F.C.Le Bailly, ' Deputy Secretary, Development.
' No,4402-C.
' A copy, with a copy of this enclosures, is forwarded for information and guidance, to the Deputy Commissioner, Shahpur.
' By order, Sd/- Deputy Secretary, Development ' No,4403-C.
' A copy, with a copy of this enclosures, is forwarded for information and guidance, to the Chief Engineer, Irrigation Works, Punjab.
' By order, Sd/- ' Deputy Secretary, Development"
13. Contents of the above letter of the Government of the Punjab makes it crystal clear that special condition of succession under the rule of Primogeniture was abrogated w,e,f, 14-10-1940. The impugned Mutation No,40 dated 23-5-1938 whereby succession of tenancy devolved upon Shah Jahan Khan Predecessor in interest of respondents Nos.2 to 8 therefore was passed in accordance with law under the rule of Primogeniture. Petitioners lack any locus standi and cause of action to question the validity of the said mutation and the subsequent transactions on the basis thereof.
The plaint challenging the vires of said mutations was therefore rightly rejected by the learned Additional District Judge Sargodha. Needless to say that G mere misquoting of any provision of law does not render the impugned order illegal. I do not find any legal infirmity in the impugned order passed by learned Additional District Judge, Sargodha.
14. I have carefully gone through the above cited case of Mst.Ghullam BaNo, Facts of the cited case are altogether distinct and distinguishable from the facts of this case. The dictum laid clown in the cited case therefore cannot be siphoned on to the facts of this case and thus is of no avail to the petitioners,
15. Besides it is pertinent to mention that the allotment of tenancy under the horse breeding scheme by the Competent Authority in accordance with law and rues does not call for interference by this Court in exercise of constitutional jurisdiction. Reliance is made upon Noor Muhammad v.
Member, Board of Revenue and others (2006 SCM R 769) and Sub. Muhammad Asghar v. Mst. Safia Begum and another (PLD 1976 Supreme Court 435).
16. For the above discussion and reasons, this constitutional petition having no merit is dismissed.