' SARMAD JALAL OSMANY, J.---This Civil Review Petition seeks review of this Court's Order dated 22- 10-2009 whereby Civil Appeal No, 1244 of 2003 was dismissed and the impugned Judgment of the Learned High Court was upheld.
2. Briefly stated the facts of the case are that the property in dispute was leased to one Aroura who had four sons namely Fazal, Barkat, Gulla and Labha. Aroura died in the year 1933 and the property devolved upon Fazal, Barkat and Gulla i,e, 100 kanals each whereas Labha did not get anything as apparently he had already received his share from Aroura. Fazal died in the year 1935 and his share of the properiy devolved upon his widow Karima Bibi and after her death, the property was inherited by her daughter Mst. Margaret who obtained proprietary rights in the year 1945. Mst.
Margaret was constrained to file a civil suit against Labha to protect her share of the property which was partially decreed to the extent of a life estate per section 30-A of the Colonization of Government Lands (Punjab) Act, 1912. The Appeal filed by Mst. Margaret was dismissed and so also the Revision before the learned Multan Bench of the Lahore High Court. However it was observed that as in the parallel litigation launched by Labha which had concluded before this Court his claim of inheritance from his father Fazal was accepted i,e, he would get 75 kanals of the disputed property, therefore the claim of Mst. Margaret was reduced to 75 kanals and it was held that the legal heirs of Labha would get 25 kanals each from the other brothers viz Gulla and Barkat. It was again observed in the said Judgment that such claim would be subject to the provisions of section 30-A of the Act 1912. Both parties filed Petitions before this Court which were dismissed and the observations of the learned High Court as to the applicability of section 30-A of the Act 1912 as also the right of Mst. Margaret to hold 75 kanals and that of the legal heirs of Labha to hold another 25 kanals each of the disputed property from Gulla and Barkat was upheld.
3. Thereafter the appellants, being the legal heirs of Mst. Margaret, filed an execution application before the learned Civil Judge for execution of the decree as modified by this Court viz. To the extent of 75 kanals of land which was dismissed by the executing Court on the ground that there was no Order in the field which would give any right to the appellants to execute the decree. Upon Appeal the learned District Judge directed that the matter should be disposed of upon a deeper appreciation after taking evidence and hence remanded. The respondents filed Writ Petition No, 1189 of 2001 against such Order of the learned Appellate Court which was allowed on the ground that the property had reverted to the legal heirs of the last male tenant under section 30-A of the Act, 1912 upon the death of Mst. Margaret and hence the learned executing Court had rightly come to, the conclusion that no lis remained in the matter as there was nothing to execute. As observed above, this Court vide Judgment under review upheld the views of the learned High Court.
4. Malik Noor Muhammad Awan, learned Advocate Supreme Court appearing for the petitioners has firstly submitted that provisions of section 30-A of the Act, 1912 reflect customary law and this has been done away by virtue of section 29 read with section 37 of the Succession Act, 1925 in the case of Christians whereby in intestate succession, the property of the Deceased would be inherited by the surviving child and if more than one, it shall be equally divided amongst all the surviving children. In this regard he has relied upon Samual and others v. Pyara Masih and others (1996 CLC 562) and Mst. Inayat Bibi through Legal heirs v. Issac Nazir Ullah and 2 others (PLD 1992 SC 385). Per learned Advocate Supreme Court the customary law insofar as Muslims are concerned has also been done away under the West Pakistan Muslim Personal Law (Shariat) Act, 1962 for which submission he relied upon Mst. Began v. Mst. Bai (1983 SCM R 80) wherein it has been held that the estate held by females under section 30-A(1) of the Act, 1912 was really a limited estate held under custom which were terminated by the Act 1962 and a widow was entitled to hold only her share as determined under Muhammadan Law. Consequently per learned Advocate Supreme Court the observation of the learned Lahore High Court in Writ Petition No,1189 of 2001 that upon the death of Mst. Margaret on 15-10-1996 her property would revert back to the legal heirs of the last male tenant under section 30-A of the Act, 1912 was incorrect. Consequently this Court also fell into error while relying upon the observation of the learned High Court which was in fact also held by this Court in Civil Petitions Nos. 506-L, 258-L and 1-L of 1994 wherein the dispute between the parties had been finally adjudicated regarding the share of Mst. Margaret. His next submission is that even if section 30-A of the Act, 1912 was to be applied to the case then, Mst. Margaret could not be non-suited as she had prior to her death acquired property rights in the land in question and consequently her case would be covered under subsection (2) of section 30-A of the Act, 1912.
For this proposition learned Advocate Supreme Court has relied upon Mst. Bakhtawar by her Legal heirs v. Sanatta and another (1993 SCM R 1094). Finally his submission is that a bare reading of section 30-A(1) of the Act, 1912 would adequately establish that after the termination of Mst.
Margaret's life estate the property again would come to the appellants if Fazal is considered to be the last male tenant as they are the legal heirs of Fazal.
5. On the other hand Mr. Mian Mohammad Hanif, learned Advocate Supreme Court for the respondents has fully supported the Judgment under review.
6. We have heard the learned Advocate Supreme Court and perused the record very carefully along with his assistance.
7. It would be seen that the dispute regarding the share of Mst. Margaret was finally decided by this Court in Civil Petitions Nos.506-L, 258-L and 1-L of 1994 whereby it was held that:-- "That being so, the High Court has rightly held that she could continue to occupy the suit land and enjoy its usufruct during her life time and on her death, it would devolve upon the legal heirs of the last male tenant under section 30-A of the Colonization of Government Lands (Punjab) Act 1912. As regards other petition filed by Mst. Margaret suffice it to observe that she having willingly agreed before the learned judge in the High Court to accept 75 kanals of land instead of 100 kanals which cannot be permitted to wriggle out of her willing stance. Even otherwise in view of the decision of the parallel litigation whereby the sons of Labha were held entitled to 1/4th share in the estate of Arora they can legitimately claim their share proportionate from Mst. Margaret and the sons of their other two uncles. In the circumstances the direction of the learned judge in the High Court allowing the heirs of Labha got 25 kanals of land from Mst. Margaret and 50 kanals from the heirs of Barkat and Gulla is quite just and fair."
A bare reading of the findings of this Court, reproduced above, would more than adequately establish that Mst. Margaret was held to be entitled to 75 kanals of the disputed property instead of 100 kanals as a life estate and on her death it would revert to the legal heirs of the last male tenant per section 30-A(1) of the Act 1912. As Fazal was indeed the last male tenant and his legal heir was his widow Mst. Karima Bibi and upon her death, his daughter Mst. Margaret and ultimately the petitioners, therefore the property would devolve upon them in equal shares as per sections 29 and 37 of the Succession Act, 1925. In this regard it would also be seen that as held by this. Court in the case of Mst. Inayat Bibi through Legal heirs v. Issac Nazir Ullah and 2 others (PLD 1992 SC 385), customary succession, so far as Christians are concerned, was altered by section 29 of the Succession Act, 1925 whereby same was abolished in the Punjab.
8. For the foregoing reasons, I would allow this review Petition thereby setting aside the Judgment under review with the result that Civil Appeal No, 1244 of 2003 stands allowed. The matter is remanded to the concerned Deputy Commissioner who would determine the legal heirs of Mst.
Margaret and thereafter proceed to mutate the property in their names in equal shares in accordance with the provisions of section 37 of the Succession Act, 1925, Order accordingly.
Sd/- ' Sarmad Jalal Osmany, J.
Sd/- ' Ijaz Ahmed Chaudhry, J.
' I have appended by separate note of disagreement. Sd/- ' Anwar Zaheer Jamali, J.
' ANWAR ZAHEER JAMALL J.---I have the benefit of carefully going through the order proposed to be delivered in this review petition, authored by my learned brother Sarmad Jalal Osmany, J., for whom I have great reverence. For multiple reasons, as recorded hereafter, I am unable to concur with his view, contained in it, therefore, I venture to write following order of my own in this petition.
2. This case has a checkered history, consisting of multiple rounds of litigation between the parties, spreading over more than forty five years. Therefore, for a better understanding of the limited scope of this review petition vis-a-vis the legal and factual contentions involved/raised in it, it will be in the fitness of the things to recapitulate all these facts in the, first place.
3. One Arora, paternal grandfather of Mst. Margaret, who was predecessor-in-interest of the present petitioners, Irshad Masih and others, held tenancy rights in 300 kanals, 1 marla of the State land in Chak No,190/9-AL, Tehsil and District Sahiwal under the Colonization of Government Lands Act, 1912 (the Act of 1912). He was Christian by faith and died in the year 1933, leaving behind four sons Gulla, Fazal, Barkat and Labha to inherit his estate. Labha having been initially deprived of his share in the said land onthe plea that he got some other State land granted in his name, filed a suit for declaration that he was owner in possession of 1/4th of the land left behind by his father Arora at the time of his death. The other side resisted his claim on the ground that Arora during his life time had filed an application on 7-9-1931 before the Collector seeking permission to gift 11 acres of land in favour of one Sohan Lal, while the remaining land, which was not under any dispute was transferred in favour of his remaining three sons Gulla, Fazal and Barkat, as Labha was excluded for the reason that he later got some other State land. The requisite permission for this gift was granted by the Collector during the life time of Arora on 16-1-1932. However, when mutation No,20 was sanctioned the gift in favour of Sohan Lal was again disallowed, who later filed an appeal before the Commission, which was accepted and accordingly the Collector, vide order of the appellate authority dated 12-5-1934, was directed to implement the order dated 16-1-1932. In these circumstances, heirs of Arora, excluding Labha became entitled to the land they were in possession, while Labha was left with no share from the State land granted to Arora. This first round of litigation ended vide judgment of the apex Court dated 10-12-1991, upholding the gift of some land by Arora in favour of Sohan Lal.
4. On the other hand, upon the demise of Fazal (paternal grandfather of the petitioners), having no male issue, his widow Mst. Karam Bibi, acquired his share in land under the custom as limited owner, which thereafter upon her second marriage devolved upon her only daughter Mst. Margret, as limited owner. It is pertinent to mention here that it is this piece of land, which is now the subject matter of present proceedings. In the years 1945 to 1949, Mst. Margret by depositing zar-e-malkiat also obtained proprietary rights, in 100 kanal of the land devolving upon her through her paternal grandfather Fazal via Mst. Karam Bibi as limited owner. In this scenario on 25-5-1968, Mst. Margret, due to threat of her illegal dispossession from the disputed land by her uncle Labha filed a suit for declaration and permanent injunction, which was disposed of by the Court of Civil Judge Sahiwal, vide its judgment dated 20-1-1969, with clear observation that the declaration prayed for as full owner was not granted, however, she was held entitled to enjoy the possession of suit land during her life time as limited owner. Thus her right of alienation and succession were to be governed under section 30-A of the Act. Simultaneously, by the same judgment the other suit instituted by Labha for claiming his share in the estate of Arora was also dismissed. Against this judgment Mst.
Margret as well as Labha filed their separate appeals before the Court of Additional District Judge, Sahiwal, which were dismissed vide common judgment dated 23-5-1969.
5. Aggrieved by the judgments of the two Courts both Mst. Margret and Labha separately filed second appeals before the Lahore High Court, being R.S.A. No,737 of 1969 sand 849 of 1969, which were disposed of, vide its common judgment dated 8-12-1993 with the observation that Mst.
Margret was entitled to 75 kanals of land during her life time as limited owner instead of 100 kanals, while Labha was entitled to 25 kanals land from Mst. Margret and rest of the 50 kanals from the two other sons of Arora i,e, Gulla and Barkat. Still dissatisfied, the judgment of the appellate Court/Lahore High Court was challenged by both the parties before the honourable Supreme Court of Pakistan, vide C.P.L.As. Nos.506 of 1994 and 258 of 1994, respectively filed by Labha and Margret's successors. This round of litigation came to an end when the Supreme Court, vide its judgment dated 18-6-1995 dismissed both the appeals with the observation that High Court has rightly held that she (Mst. Margret) could continue to occupy the suit land and enjoy its usufruct during her life time, and on her death, it would devolve upon the legal heirs of the last male tenant under section 30-A of the Colonization of Government Lands (Punjab) Act, 1912. (underlining supplied for emphasis)
6. The matter did not end here, as despite successive failure of Mst. Margret to acquire full ownership rights in the disputed land,. On 15-6-1998, the present petitioners as her legal heirs filed an execution application before the Court of Civil Judge 1st Class, Sahiwal for seeking execution of judgment dated 20-1-1969. The relevant contents and the prayer made in the said execution application read as under:--{{URDU TEXT}} ' Based on the above referred decree and prayer the mode of assistance sought from the executing Court was as under--{{URDU TEXT}} ' Thus, it is crystal clear from the record that at no point in time, even before the executing Court, the review petitioners had ever claimed any ownership rights in the disputed land, but only restoration of possession for which, after the death of Mst. Margret in the year 1996, they had already lost their claim for the execution of such decree to retain the possession.
' This execution application was dismissed by the Court of Civil Judge Ist Class, Sahiwal, vide its order dated 16-11-1999, which reads as under:- "The present execution petition has been filed with this submission that the court decree dated 20- 1-1969 has not been operated upon and the present petition has been filed on the basis of observation of the Hon'ble supreme Court of Pakistan in an application for contempt of court in which it was said that the execution petition be filed.
' I have heard the learned counsel for the parties at length who has not only brought on record their written arguments but also opted to satisfy themselves through their oral submission. Without discussing the history of the case between the parties it is submitted that it is worth mentioning here that this execution petition is silent in this regard that what the petitioner, wants to execute through this court, neither any of the orders produced by them in connection with the case gives weight to file execution and I. Have no option, but to dismiss this petition, hence, the same is hereby dismissed." (underlining supplied for emphasis).
' The above order of the Executing court was challenged by the present petitioners before the Court of Additional District Judge, Sahiwal, through a civil revision, which was allowed and case was remanded to the executing Court with the following observations:-- "Therefore, the impugned order dated 16-11-1999 seems to have been passed in slipshod manner, without proper appreciation of evidence on record, therefore, illegal and not sustainable in the eyes of law. Therefore, I have no hesitation to accept the revision petition in hand. Consequently, the impugned order dated 16-11-1999 is hereby set aside. The case is hereby remanded to the learned trial court to reappraise the matter after framing of proper issue, in view of controversies as raised by the parties and to decide the petition a fresh, in view of evidence as adduced by the parties on the issue framed in accordance with law. The file of this court be consigned to record after completion.. The parties are directed to appear before the learned trial Court on 27-1-2001".
7. The above said order of the Revisional Court was then challenged by the present respondents in Writ Petition No,1189 of 2001, which was allowed by the learned Single Judge in the Lahore High Court, Multan Bench, vide his judgment dated 11-11-2002, inter alia, for the reasons, which read as under:- "(7) The relevant portion of the judgment of Hon'ble Supreme Court, which will govern the fate of the instant petition is as follows:-- "Mst. Margret acquired proprietary rights in the suit land before her marriage. That being so, the High Court has rightly held that she could continue to occupy the suit land and enjoy its usufruct during her life time and on her death, it would devolve upon the legal heirs of the last male tenant under section 30-A of the Colonization of Government Lands (Punjab) Act, 1912.".
' Accordingly to the above referred paragraph of the Hon'ble Supreme Court, Mst. Margret, the predecessor-in-interest of respondents was held to be entitled to retain and enjoy the possession during her life time and on her death, the property was to devolve upon the legal heirs of last male tenant under section 30-A of the Colonization of Government Land (Punjab) Act, 1912. Admittedly, Mst. Margret died on 15-10-1996. The moment Mst. Margret died, the property would revert back to the legal heirs of Aroura under section 30-A of the Colonization of Govt. Lands (Punjab) Act, 1912.
Respondents being sons of Mst. Margret were thus left with no locus standi to file the disputed execution petition on 19-6-1998 after the death of Mst. Margret.
(8) No doubt, ordinarily a remand order passed in a revision should not be interfered by this Court as the parties can adequately contest their. Claim before the original court. But if the very proceedings before the original court are filed without locus standi, this court cannot keep its eyes shut, such case has to be interfered in constitutional jurisdiction. Resultantly, instant petition is allowed, order passed by the learned Additional District Judge dated 25-1-2001, is declared to be illegal and without lawful authority. No order as to costs."
8. Against the above order, civil petition for leave to appeal No,4011-L of 2002 was preferred by the present petitioners wherein leave was granted in terms of the order dated 2-5-2003, inter alia, on the following grounds:- "(7) The import of the revisional order which was set aside by the impugned order of the Lahore High Court was that issues were to be framed and evidence was to be examined to find out as to what was to devolve, if at all, on the four sons of AROORA and what was the extent of which the successors of all the said four sons were entitled in the land in question left behind by the said AROORA. The question whether such was not a just and proper order passed by the learned Additional District Judge to deal with the inheritance of AROORA requires consideration."
9. When the appeal arising out of this petition came up for hearing before a three Member Bench of this Court, it was heard and dismissed by order dated 22-10-2009, which reads as under:- "(2) The learned Single Judge in the Lahore High Court, while passing the impugned judgment dated 11-11-2001 in W.P. No,1189 of 2001 has found the appellants, all sons of Mst. Margret daughter of Fazal, disentitled to any claim from the land measuring 300 kanals situated in Chak No,190/9-AL Tehsil and District Sahiwal, originally held by their great grandfather "Aroura" as government tenant, and thereafter their maternal grandfather Fazal, inter alia, for the following reasons: "The moment Mst. Margret died, the property would revert back to the legal heirs of Aroura under section 30-A of the Colonization of Govt. Lands (Punjab) Act, 1912. Respondents being sons of Mst.
Margret were thus left with no locus standi to file the disputed execution petition on 19-6-1998 after the death of Mst. Margret."
' The above noted factual aspect of the case has not been controverted by the appellants thus there seems to be no justification for us to interfere in the impugned judgment.".
' It is against this final order that this civil review petition has been filed, in which notices were issued by the Court on 13-5-2010.
10. I have heard the arguments of both the learned ASCs, which need not be reproduced here, as already been recorded in the order proposed to be delivered in this review petition by my learned brother Sarmad Jalal Osmany, J. Some important legal points involved in this petition, which need detailed discussion, are as under:--
(a) What is the scope of this review petition filed before the apex Court in terms of Article 188 of the Constitution of Islamic Republic of Pakistan 1973?
(b) What is the scope of exercise of jurisdiction by an Executing Court? Whether it can go beyond the decree, which has already attained finality up to the level of apex Court?
(c) Whether this Court in its earlier judgment dated 18-6-1995 in Civil Petitions Nos.506-L, 258-L and 1-L of 1994 has not finally adjudicated the claim of the predecessor-in-interest of the petitioners in terms of its paragraph No,9, or this Court while exercising its review jurisdiction can again embark upon to examine the merits of such earlier judgment, which has attained finality more than 18 years ago and is not subject matter of the instant review in the present proceedings?
11. Taking up the first legal point (scope of review) qua facts of the present case, it will be useful to refer here a well articulated judgment on this point in the case of M. Naeem-ur-Rehman v. State Bank of Pakistan (PLD 2010 SC 949), which, inter alia, lays down as under:-- "There is no cavil to the proposition that reversal of conclusion earlier reached by this Court, after full consideration of the question is not possible in the exercise of review jurisdiction as a review cannot be granted for merely re-examination of the same arguments. It is to be noted that re- arguing a case on merits as well as additional grounds is beyond the scope of review petition.
Besides that a mere desire of re-hearing of the matter cannot constitute sufficient ground for the grant of review. (Manzoor Hussain v. Zohra Bibi PLD 1990 SC 924, Muhammad Sarwar v. Asad Hakim 1983 SCM R 177, Jalal v. Nazir Ahmad 1980 SCM R 320, Abdul Hamid Saqfi v. Service Tribunal of Pak 1988 SCM R 1318, Ali Khan v. Shehzaman 1980 SCM R 332, Abdul Majeed v. Chief Settlement Commissioner 1980 SCM R 504; Maqbool Ahmad Tabassam v. State 1980 SCM R 907, Zulfiqar Ali Bhutto v. State PLD 1979 SC 741, Nawab Bibi v. Hamida Begum 1968 SCM R 104, Mohd Hayat v.
Government of West Pakistan 1968 SCM R 107, Muhammad Najeebullah v. Government of Pakistan 1968 SCM R 768, Muhammad Ghaffar v. State 1969 SCM R 12, Ghulam Fatima v. Settlement Commissioner 1969 SCM R 5,Ghulam Fatima v. Settlement Commissioner 1969 SCM R 247, Feroz Din v. Allah Ditta 1969 SCM R 10, Dewan Jairamadass and others v. Syed Niamat Ali and others 1983 SCM R 330). It is well settled by now that "where petitioner took up all material grounds taken by him during the course of hearing of appeal and dealt with and decided in judgment under review and thus sought rehearing of arguments addressed by him at time of hearing and disposal of appeal and wished a different decision from one already given without satisfying jurisdictional requirement necessary for maintaining review petition. The petition was dismissed". (Akbar Ali Bukhari v. State Bank of Pakistan 1981 SCM R 518. The re-hearing of the case in garb of review petition cannot be allowed as held in case titled Zulfiqar Ali Bhutto v. The State PLD 1979 SC 941) and more so review cannot be granted on the ground that certain facts require re-appraisement by Supreme Court, (Basharat Khan v. The State 1984 SCMR 1033 (1), Muhammad Nazir v. State 1979 SCM R 89, Kalal Khan v. Misri Khan, 1979 SCM R 347 and Saghir Ali v. Mehar Din 1968 SCM R 729)."
' Reverting to the facts of the present case, as summarized above in paragraphs Nos.3 to 10, it will be seen that no fresh ground for review is urged in the application, and in reality grant of instant review petition will tantamount to reviewing the earlier judgment of apex Court dated 18-6-1995, passed in Civil Petitions Nos. 506-L, 258-L and 1-L of 1994, as this Court in its order dated 22-10- 2009, has neither added nor subtracted anything from the original verdict, except that its reference has been made, with reproduction of relevant passage from the earlier judgment of Lahore High Court, that was maintained by the apex Court, and its application to the facts of the instant case, to show that the Executing Court cannot embark upon the exercise of setting aside the ratio of said judgment under any cannon of law. This being the position, I am of the considered view that scope of hearing of the instant review petition cannot be stretched to a request for review of the judgment dated 18-6-1995, which had attained finality for all intent and purposes, and on this ground alone this review petition is incompetent and liable to be dismissed.
12. Besides, the above narration of facts about the previous litigations makes it abundantly clear that order dated 22-10-2009 dismissing the appeal, regarding which now review is being sought is an order passed in the second round of litigation emanating from the execution proceedings, in the backdrop of orders dated 16-11-1999, 25-1-2001 and 11-11-2002, passed by the Courts of Civil Judge Ist Class, Sahiwal, Additional District Judge, Sahiwal and the Lahore High Court, Multan Bench, respectively. Thus, before commenting upon its merits or otherwise, it is important to first examine the limited scope of exercise of jurisdiction by the executing Court. For this purpose, there is plethora of case-law on the legal point that the executing Court, under no circumstances can go beyond the decree. In the instant case, as discussed above, the execution application was filed by the petitioners on 15-6-1998 in terms of the prayer reproduced above, in respect of the judgment dated 20-1-1969, wherein the claim of the petitioners predecessor was firstly turned down by the Civil Court and finally maintained by this Court in terms of paragraph No,9 of its judgment dated 18-6-1995, and their appeal was accordingly dismissed, being devoid of merits. Earlier to it, in the judgment dated 8-12-1993, passed in R.S.A. No,737 of 1969, this aspect of the matter was dilated upon by the Lahore High Court in the following manner:-- "11. The learned Additional District Judge had with reference to PLD 1961 BJ 52 rightly replied the contention of Labha's counsel that Mst. Margret respondent had on contracting marriage, forfeited her right to occupy the disputed land and enjoy its usufructs till her death. She had admittedly acquired proprietary rights of the land in dispute before her marriage. However, the same were subject to the provisions of section 30-A of the Colonization of Government Land (Punjab) Act 1912.
No fault can be found with his findings. The appeals are therefore, rejected but subject to the modification that Mst. Margret respondent shall be entitled to retain possession of 75 kanals instead of 100 kanals of the disputed land and her opponents shall not interfere in her possession.
To avoid any possible confusion and controversy, it is directed that the heirs of Labha appellant shall get possession of 25 kanals from her through the revenue officer concerned and rest of their share of 50 kanals shall be made up equally by the set of heirs of Barkat and Gulla each of whom is in possession of 100 kanals. Parties shall bear their own costs throughout."
13. Thus, whatever was the entitlement of Mst. Margret, the predecessor-in-interest of the petitioners, it is for all intents and purposes now a past and closed transaction. It is for this reason that in the order under review dated 22-10-2009 this Court has endorsed the view of the High Court contained in the judgment dated 11-11-2002 by merely making reference to the observations that "the moment Mst. Margret died, the property would revert back to the legal heirs of Arora under section 30-A of the Colonization of Government Lands (Punjab) Act 1912. Respondents being sons of Mst. Margret were thus left with no locus standi to file execution petition on 19-6-1998, after the death of. Mst. Margret". This being the undisputed factual position in the present case, as rightly held by the High Court in its judgment dated 11-11-2002, the order of remand passed by the learned Additional District Judge Sahiwal dated 25-1-2001 was not sustainable in law, as the executing Court cannot go beyond the mandate of the said judgment and thus the present petitioners had no locus standi to seek execution of either the judgments dated 20-1-1969, whereby their predecessor's suit was disposed of without grant of relief prayed for, or the other judgment of the Supreme Court dated 18-6-1995, dismissing their petition and confirming the judgment of the Lahore High Court dated 8-12-1993. Rather, after the death of Mst. Margret in the year 1996, there was nothing in the said judgments which was executable at the request of the present petitioners.
If any case-law is needed to fortify the view regarding limited jurisdiction of the executing Court, reference can be made to the following cases:--
(i) Muhammad Ali and others v. Ghulam. Sarwar and others (1989 SCM R 640)
(ii) Mst. Naseem Akhtar v. Shalimar General Insurance Company Limited (1994 SCM R 22)
(iii) Province of Punjab through Secretary Industries v. Burewala Textile Mills Limited (2001 SCM R 396)
(iv) Tuqeer Ahmad Qureshi v. Additional District Judge, Lahore (PLD 2009 SC 760) ' which, respectively lays down as under:- ' In the case of Muhammad All (supra), the Court recognized that it was well-settled principle of law that unless the judgment and decree was patently a nullity, the executing Court could not go behind the decree and was bound to execute the same as it stands.
' In the case of Mst. Naseem Akhtar (supra) it was held that it was an established principle of law that the Court in execution proceedings could not be allowed to embark on an inquiry to determine whether the Court passing the decree had the jurisdiction to do so. The Court emphasized that if such broad discretion was given to executing courts there could be no finality attached to any judgment and decree ' In the case of Province of Punjab v. Burewla (supra) this Court reiterated the above principle by stating that the Executing Court could not travel behind the terms of the decree, nor could it alter the terms or examine its correctness or proprietary.
' In the last case of Tauqeer Ahmed (supra), apex Court affirmed that there could be no cavil with the proposition that the executing Court could not go behind the decree and would only be allowed to do so to examine whether the decree or part thereof was executable or in-executable. It was held that only in such a situation was the Court empowered to refuse execution but that only to the extent of the in-executable part of the decree and was bound to proceed with the execution for the rest.
14. Having discussed the above two legal points involved in this review petition, when we revert to the facts of the case we find that not once, but twice the litigation in respect of the disputed land granted to deceased Arora before his death in the year 1933 had gone up to the level of apex Court and was finally decided in terms of the two judgments of the apex Court dated 10-12-1991 and 18- 6-1995. In such circumstances, the order of this Court dated 22-10-2009, regarding which now review has been sought is nothing but a reiteration of the conclusions in the earlier two rounds of litigation. Thus, any request for review in substance will not be a simplicitor request for review of such order, but for the earlier judgments too, which have been squarely made basis by the Court in its order dated 22-10-2009, as the only ground for dismissal of the appeal. It is important to reiterate that the Court dealing with a review petition and re-examining the order passed during execution proceedings, is constrained not only by the limited scope of exercise of jurisdiction of review, but also by the settled principle of law that the executing court cannot go behind the decree.
15. While denying Margaret's legal heirs from any share in the lands originally granted to Arora under the Act of 1912, may seem to be somewhat unpalatable, but a lack of restraint in this regard, obliquely or otherwise, has the potential to become a dangerous precedent, whereby in future litigations parties may be able to avoid the implication of such established and imperative legal principles to gain undue benefit and to defeat the concept of finality of judgments. The earlier judgment of this Court dated 18-6-1995 in C.P. No,1-L of 1994, was judgment in personam and in respect of the same dispute relating to the suit land, subject matter of present proceedings, through which the inter-se rights of the parties, including that of Mst. Margret, predecessor-in- interest of the present petitioners, were finally determined. In such circumstances, any reference to the provisions of West Pakistan Muslim Personal Law (Shariat) Act 1962, which was in force at the relevant time also, or reference to the earlier judgment of this Court in the case of Inayat Bibi through legal heirs v. Issac Nazir Ullah and 2 others (PLD 1992 SC 385) is of no consequence, as this Court while exercising its limited jurisdiction of review, neither can declare the earlier judgments, being per incuriam nor can dilute the effect of such pronouncement, which is now a past and closed transaction for all intents and purposes.
16. In so far as the question of application of section 30-A of the Act of 1912 is concerned, this aspect has also not only been addressed in the judgment dated 18-6-1995, but from the plain reading of this section too it is evident that original land of three hundred kanals and one marla granted to Arora, the ancestor of the parties, upon his death in the year 1933, had ultimately devolved upon his four sons i,e, Gulla, Fazal, Barkat and Labha in equal share i,e, 75 kanals each, as Labha, who was initially not granted his share, succeeded to get it in terms of the judgment of the High Court dated 8-12-1993, passed in Second Civil Appeal No,737 of 1969, whereby the entitlement of Mst. Margret as successor of Fazal deceased was also reduced from 100 kanals to 75 kanals. Moreover, the contention that Margaret's rights of alienation would not fall under S.30-A of the of Act 1912, but would be governed by the Succession Act 1925 seems to be on weak footings as it ignores subsection (2) of the section 30-A which states that: Nothing herein contained shall be construed to alter the law of succession applicable to any female tenant, in respect of such proprietary rights in land acquired by her, if the tenancy in such lands was acquired by or accrued to her in circumstances other than those specified in subsection (1). However, Margaret's case falls squarely within subsection (1(a)) of section 30-A, as she "succeeded to the tenancy directly or indirectly from a male tenant, as if the proprietary rights had been acquired by the last male tenant, and she had succeeded to such rights as his heir" and thus did E not acquire tenancy in the disputed land in a manner other than what has been specified in subsection (1(a)) of section 30-A of the Act of 1912.
Therefore, the argument that her rights of alienation would be governed by the Succession Act 1925 do not hold any force, and the disputed land would revert back to the heirs of the last male tenant (Aroora) as per section 30-A of the Act 1912. Apart from it, what is more important for our purposes is that now holding that Margaret's right of alienation was to be governed by the Succession Act seems to be challenging the very validity of the decree of the Supreme Court itself, which as discussed above, will be completely contrary to the principle that the executing court cannot creatively interpret a decree which has attained finality F before the apex Court to nullify its effect.
17. The claim of ownership subsequently set up by Mst. Margret's legal heirs was rejected in the second round of litigation and it was categorically observed that under the personal law, she held only limited ownership rights in the land and thus on her death the said land would revert to other male legal heirs of Arora in terms of section 30-A (ibid). It is a matter of record that the disputed land had devolved upon Mst. Margret as limited owner/life estate on the demise of her father Fazal and then after her mother's second marriage, and despite payment of "zara-e-malkiat" her claim of full ownership was rejected, vide judgment dated 20-1-1969, as upheld by the apex Court in its judgment dated 18-6-1995. Thus by application of section 30-A after her death in the year 1996, land reverted to the male legal heirs of Arora i,e, his remaining three sons Gulla, Barkat and Labha or their successors, as the case may be, who got back the whole land from Mst. Margret to the exclusion of her own legal heirs, the present review petitioners. Similar legal aspect has been dilated upon in the case of Illam Din v. Muhammad Din (PLD 1964 SC 842), which is a judgment of honourable Five Members Bench (majority view authored by Cornelius C.J) and clinch and authoritatively decided this issue as under:- "That was that eventually the Legislature of the Punjab passed a law determining, the succession to female proprietors of several categories including that in which Mst. Zainab Bibi was, and at the same time placing a restraint upon their power of alienation. This was section 30-A of the Colonization of Government Lands Act, which was enacted in 1944, and had the effect of enforcing succession under custom. In other words, rights of alienation of the land were to be the same as if the proprietary rights had been acquired by the last male tenant and she had succeeded to such rights as his heir, and the case would be the same where the tenancy was allotted to her or to another female on account of the services of some male person, in which case her rights would be the same as if she had succeeded to the said male person as his heir. Succession was to follow the same principle, namely, that upon the death of the female proprietor, the heirs of the last male tenant or of the male person on whose account the tenancy was first granted would succeed."
' The above discussion makes it more clear that the stance that the last male tenant of the disputed property was Fazal, on which basis, Mst. Margret and subsequently her legal heirs were entitled to her share in the land cannot be upheld. The last male tenant in the present case is clearly Aurora or his surviving male issues or their descendants, which means that after Margaret's death, the property would devolve to them as last male tenants, who happen to be Fazal's brothers, Gulla, Barkat and Labha or their predecessor-in-interest.
18. Another added ground for disagreement with the order proposed in the review petition, authored by my learned brother Sarmad Jalal Osmany, J, is the fact that how after impliedly conceding to the lack jurisdiction of the execution Court and to the position that there is nothing in the judgment dated 18-6-1995 in favour of deceased Margret or her successors, which could have been executed/implemented through the executing Court in exercise of its limited jurisdiction, this Court when exercising its limited jurisdiction of review, can confer such authority to the Deputy Commissioner or any other forum to sit over the two judgments of the apex Court dated 10-12-1991 and 1876-1995 to settle the entitlement of the petitioners qua the suit land afresh, which in terms of such judgments had reverted and devolved upon the male heirs of original allottee Arora, as mandated under section 30-A of the Act of 1912; or to dilute the effect of previous 45 years of litigation between the parties and put them back to square one.
19. Thus, looking at the maintainability and the merits of the instant review petition from all angles, I am of the opinion that it is misconceived and not maintainable in law. Accordingly, the same is dismissed. Sd/- Anwar Zaheer Jamali, J.
' With majority of two to one (Justice Anwar Zaheer Jamali disagreeing with the majority view), this review petition is allowed, so also the Civil appeal No,1244 of 2003.
Sd/- Anwar Zaheer Jamali, J.