SHAHID MUBEEN, Respondents Nos, 1 and 2(i) to (vii) have already been proceeded against ex parte.
2. Through this civil revision filed under Section 115 of the Civil Procedure Code, 1908 the petitioners have assailed the judgment and decree dated 19.06.2014 passed by learned Additional District Judge, Faisalabad as well as judgment and decree dated 31.10.2011 passed by learned Civil Judge Class-III, Faisalabad.
3. Precisely, the facts of the case are that petitioners instituted a suit for administration of property against the respondents contending therein that deceased Faqir Muhammad is real brother of the petitioners who died leaving behind the agricultural land comprising of Khewat No,72/72 Khatooni Nos,113 to 115 Square No,11 Killa Nos,7/1, 8, 9/1, 14/1, 16 to 18, 23 to 25 total property measuring 82- kanals 10-marlas and a residential Ihata No,10 comprising of Khewat No,3 Khatooni No,18 measuring 10-marlas and immoveable property i,e, Tractor Fiat, two trolleys, one Thrasher, 500 mounds wheat and other household articles. It is further asserted that respondents murdered the above named Faqir Muhammad and petitioners are legal heirs of the said deceased to the extent of 2/3 share. The respondents contested the suit by filing written statement controverting the averments made in the plaint. Out of the divergent pleadings of the parties the learned trial court framed relevant issues. The parties produced their oral as well as documentary evidence to prove their respective contentions. The learned trial court vide judgment and decree dated 31.10.2011 partially decreed the suit of the petitioners. Being dissatisfied with the said judgment and decree, the petitioners preferred an appeal before learned Additional District Judge, Faisalabad who vide judgment and decree dated 19.06.2014 dismissed the same. Hence, this civil revision.
4. It is contended by learned counsel for the petitioners that disputed Ihata was in the ownership of late Faqir Muhammad, therefore, it should be distributed amongst his legal heirs; and that he presses this civil revision to the extent of disputed Ihata.
5. On the other hand, learned counsel for respondents supported the impugned judgments and decrees passed by the two courts below.
6. Arguments heard. Record perused.
7. I have gone through the documents appended with this civil revision and Exh.D/1 and Exh.D/2 which pertain to the disputed Ihata. In the plaint the claim of the petitioners is that Ihata was in the ownership of late Faqir Muhammad whereas this fact has been denied by respondent No,2/Bushra Bibi claiming that the said Ihata belongs to her father which was given to her by him and it was not in the ownership of late Faqir Muhammad. The petitioners could not place on record any documentary evidence which could suggest that disputed Ihata was in the ownership of late Faqir Muhammad. Similarly, Mst. Bushra Bibi/respondent could not prove that the said Ihata was owned and possessed by her father which was given to her by her father who was stated to be owner of said Ihata. From perusal of Exh.D/2, Jamabandi for the year 1978-79, it clearly reveals that as per entry in Column No,5 the said Ihata which comprises of Khewat No,3 Khatooni No,18 belongs to the Central Government. It is established principle of law that a man can tell a lie but a document cannot. Both the parties have failed to prove ownership of the disputed Ihata/Exh.D/2 which was in the ownership of Central Government, therefore, this property shall vest with the Central Government under principle of escheat under Article 172(1) of the Constitution of the Islamic Republic of Pakistan, 1973, which reads as follows:- "172. (1) Any property which has no rightful owner shall, if located in a Province, vest in the Government of that Province, and in every other case, in the Federal Government."
8. According of Black's Law Dictionary (Legal Dictionary 2nd Edition), "Escheat" signifies a reversion of property to the state in consequence of a want of any individual competent to inherit. The state/ is deemed to occupy the place -and holds the rights of the feudal lord. To elaborate the concept of "Escheat" the reference can be made to the case law reported as "Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue, Punjab and others" (PLD 2003 SC 979). Relevant portion of the judgment is reproduced herein below:-- "This power cannot also be exercised if a third party as already stated had acquired a right out of the judgments impugned before the Court from which the withdrawal is sought. In the case in hand all the forums inclusive of the learned Single Judge of the Lahore High Court in the earlier round of litigation held that the proceedings under Article 172 of the Constitution for the escheatment of the disputed property be taken. A valuable right had accrued in favour of the Provincial Government under Constitutional mandate and the same could not have been frustrated by the withdrawal of the appeal."
Further reference may be made to case law reported as "Nanney Khan through Attorney v.
Muhammad Dawood Khan and another" (2015 YLR 1652). Relevant portion of the judgment is reproduced herein below:-- "In a situation like this, I am of the considered opinion that it is the duty of the Court that once it is found that none is available to claim ownership of immoveable property in his own right or by means of inheritance the property would be treated as an ownerless property. And once the Court is satisfied that the property is rendered ownerless, it would be escheated to the Government in terms of Article 172 of the Constitution of Pakistan, 1973. It is the duty of the State to protect all such properties of its citizens in terms of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973 and of course the Court is the custodian of fundamental rights of the citizen under the Constitution. Even the State would be allowed to take possession of such property under Article 24 clause 3(d) of the Constitution of 1973 for a limited period to protect it for the benefit of its owner."
In another case reported as "Ghulam Rasool v. Abdul Rashid and others" (2007 M LD 515) it has been held as under:-- "The petitioner has no locus standi to make this assertion. If at all Mst. Hasso died without leaving any legal heirs, her I/4th share in the suit property will vest in the Province by way of escheat. In such event, it will be the Province which will have a right to claim the share of Mst. Hasoo."
In the case titled as "Ravi Dutt Kapur v. Deputy Commissioner/Collector, Jhang and 9 others (1999 CLC 500), it has been held as under:-- "9. The argument can only be accepted on the assumption that under the personal law of the deceased the property vested in the heirs straightway. Rana Muhammad Sarwar, Advocate did not cite any law to show this. Besides the case of the petitioner is based on the will allegedly executed by the widow of the original owner in favour of the petitioner. It is well established that the will has to be proved, taken out and implemented. For this elaborate procedure exists in law and no such procedure has been followed nor any right is shown to have been established on the basis of the so-called will. It has also not been shown that the widow could make a valid will.
Under Article 172 of the Constitution, it is the "ownerless" 'property, which vested in the Provincial Government. Unless the petitioner takes out and gets the alleged will implemented according to the Laws of Pakistan, he cannot be said to be the "owner" of the disputed property. The arguments of Rana Muhammad Sarwar, Advocate as soon as there is an heir of the property cannot be escheated has no force, even if the petitioner is taken to be the heir of the original owner. As noted, under Article 172 of the Constitution it is the "ownerless" property, which vested in the Provincial Government and not "heirless" property. On the present record, it cannot be held that petitioner is in any manner the owner of the disputed property. The impugned orders, therefore, are valid although the learned Deputy Commissioner was not pointed out the provisions of Article 172 of the Constitution and he proceeded to take action keeping in view of the provisions of Land Administration Manual, para.8."
In the case titled "Muhammad Sadiq v. Taj Muhammad and 2 others" (1994 CLC 326), it has been held as under:-- "As a result, since neither of the parties lips any right or entitlement in the disputed property and no one else is known to this Court to have any right or entitlement therein, it stands escheated to the State under Article 172 of the Constitution of Islamic Republic of Pakistan, 1973.
9. The findings of the two courts below to the extent of disputed Ihata are hereby reversed.
10. In view of what has been discussed above, this civil revision is disposed of in the terms of Paragraph No,7 of this order. The judgments and decrees of the two courts below to the extent of findings on other issues shall remain intact/upheld. However, the parties are at liberty to file an application for allotment of said Ihata and if such an application is filed the same shall be decided in accordance with law by the competent authority. No order as to cost.