SHAFI-UR-REHMAN, J.--This appeal by special leave calls in question a decision of the Lahore, High Court, whereby the constitutional petition filed by the appellant was dismissed.
2. One Mst. Sairan, widow of Nathu, was the recorded owner of agri--cultural land in village Karyal, Tehsil Zeera District Ferozepur. On partition she migrated to Pakistan and was allotted and confirmed agricultural land measuring in all 224 kanals at two places. 134 kanals 1 marla was allotted in Chak No. 108/15-L., Tehsil Khanewal and 88 kanals in Village Miran Mohalla, Tehsil Shujabad District Multan. After obtaining permission from the Rehabilitation authorities she alienated land measuring 134 kanals 1 marla in favour of the appellant. A gift deed was executed and registered on 29-4-1957 the consequential mutation was attested in the revenue record.
3. Abdullah respondent No. 2 claiming to be a collateral of Nathu filed an appeal challenging the attestation of the mutation but the Deputy Rehabilitation Commissioner dismissed the same on the ground of being barred by limitation. A revision petition was filed but was consigned to the record.
4. Abdullah then filed a constitutional petition which was disposed of with a direction to the Rehabilitation Authority to decide whether Mst. Sairan was a limited estate holder or not. The Additional Settlement Com--missioner held that Mst. Sairan held a widow's estate in East Punjab and the gift deed executed by her and the consequential mutation should be set aside and land mutated in accordance with section 3 of the Pakistan Rehabi--litation Act read with paras. 46 and 46-A of the Rehabilitation Scheme. The direction with regard to the sanction of the mutation of Mst.
Sairan had to be given by the Additional Settlement Commissioner on 3-8-1962 because Mst.
Sairan had in the meantime died on 23-7-1958.
5. The appellant filed a review petition but the same was dismissed and then he invoked the constitutional jurisdiction of the High Court for chal--lenging that decision. The learned Judge hearing the petition submitted the case to the learned Chief Justice of the High Court for referring the question of law arising in that constitutional petition to a larger Bench. The ques--tion of law framed and referred was as follows :- "Whether a Muslim female who is allotted land under the Rehabilitation and Settlement Scheme in lieu of land held by her on the usual life tenure under custom in India becomes an absolute owner thereof and a fortiori is competent to alienate it."
By its judgment dated 22-7-1967 the Full Bench decided that widow on allotment of the land becomes vested with full proprietary right and she was competent to alienate such land. This decision is reported as Sher Muhammad v. The Additional Rehabilitation Commissioner Multan and 7 others (PLD 1968 Lab. 234). While delivering the judgment the Full Bench directed on 22-7-1967 that "Reference to Full Benchs has been answered let this case be fixed before a Division Bench for disposal". The writ petition in which the ques--tion of law was referred to the Full Bench ultimately came up for disposal before the learned Judge in March, 1972. In the meantime on the same question of law as was referred to the Full Bench, this Court handed down a decision to the contrary in the case of Additional Settlement Commissioner, Sargodha v. Muhammad Shafi (PLD1971SC791). The learned Judge had therefore to decide the question whether he was to follow the decision of the Full Bench or the law declared by the Supreme Court of Pakistan. He followed the latter and holding the estate of Mst. Sairan to be limited dismissed the constitutional petition on 29-5-1972.
5. The leave to appeal was granted to examine the following questions which were found to be arising in the case "(a) That the only legal question arising in the case having been decided in favour of the petitioner by the Full Bench, there was nothing more which required decision by a Division Bench or a Single Bench, and accordingly it should have been held by the High Court that the writ petition stood accepted on the date the Full Bench pronounced its judgment on the reference made to it ;
(b) that in any case, the learned Single Judge was in error in not giving effect to the opinion recorded by the Full Bench, as this was a deci--sion inter partes and was binding on them, irrespective of a contrary opinion taken by the. Supreme Court in other cases of a similar nature, especially because the respondents in this case had not filed an appeal against the decision of the Full Bench on the question of law arising in this case
(c) that apart from the binding effect of the opinion recorded by the Full Bench on the legal question, the revisional order of the Additional Settlement Commissioner was liable to be set aside on the short ground that he had failed to consider the question of limitation in relation to the respondents' appeal, which had been dismissed by the learned Deputy Settlement Commissioner, on 15-9-1968 as being barred by time, and without setting aside this decision on the question of limitation, the merits of the respondents' claim could not be examined in revision ;
(d) that even the High Court failed to advert to this aspect of the case although pointed attention was given to it by means of a written application submitted by the petitioner in this behalf, with the result that the law laid down by the Supreme Court on this question was not applied (see the case of Ahsan Ali and others v. District Judge and others PLD 1969 SC 167), and
(e) that even if all the other points were decided against the petitioner, he would still be entitled to retain, under the gift, property to the 1/4th of the entire allotment made in favour of Mst. Sairan on the ground that she would have inherited this share in the estate of her, husband on the opening of succession under the Shariat Act."
6. The bare recital of the facts shows that while answering the specific question of law referred to the Full Bench, a direction was given that "let this case be fixed before a Division Bench for disposal".
Such express unequivocal words leave no room for contending that with the decision of the law point referred to the Full Bench the constitutional petition stood disposed of or that it should be so deemed.
7. It is true that ordinarily a decision of the Full Bench is binding on a learned Single Judge or a Bench of two Judges seized of the same matter.
This rule is however not absolute and must yield where a more compulsive and supervening constitutional provision like Article 63 of 1962 Constitution, Article 191 of the Interim Constitution or Article 189 of the Constitution of 1973 took over. The language of these provisions has throughout remained intact and reads as follows :- "Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan:"
This provision of the Constitution left no scope for the learned Judge in the High Court to prefer the Full Bench decision over this Court's decision, because the decision was admittedly on a question of law.
8. The objection of the learned counsel to the competency of the appeal of the respondent before the Deputy Settlement Commissioner on the ground that the delay in filing it was never condoned is on the facts of the case, not substantial. The Deputy Settlement Commissioner held the appeal to be time barred. This the Deputy Settlement Commissioner held ignoring altogether that the respondents were parties neither to the alienation nor to proceedings of mutations. Besides, they could agitate the matter of succession under para. 46-A of Rehabilitation Settlement Scheme on the death of Mst. Sairan which took place on 23-7-1958. The appeal against the gift mutation dated 30-7-1957 was filed on 21-7-1958. The High Court had in the earlier cons--titutional petition directed the Rehabilitation Authority to decide the question whether Mst. Sairan was the full owner or in the enjoyment of a limited estate. It was in obedience to this direction that the decision now under examination was given. In this background the objection on the ground of limitation may have some technical merit but in substance it has none.
9. As regards the devolution of property after the death of Mst. Sairan, the order of the Additional Rehabilitation Commissioner dated 13-8-196. Which has been left intact by the High Court directed that "The mutation of this land should be sanctioned in accordance with section 3 of Pakistan Rehabilitation Act read with paras. 46 and 46-A the Rehabilitation Settlement Scheme."
In respect of allotment made to Mst. Sairan who died on 23-7-1958, the rule of decision could be no other.
Hence, none of the grounds taken up in this appeal is tenable. The appeal is dismissed with costs.