AHMAD NADEEM ARSHAD, J. Through this single judgment, I intend to decide the instant Civil Revision as well as connected Civil Revision bearing No.421-D of 1999 tilted "Hakim-ud-Din, etc. vs. Province of Punjab, etc." as common question of law and facts are involved in both the petitions and have been arising out from the same judgments and decrees of the learned Courts below.
2. Facts in brevity are that Fateh Muhammad & others (sons and daughters of Qamar-ud-Din) represented in the titled Civil Revision as respondents No.2 to 17 (hereinafter referred to as "the first respondents) instituted a suit for declaration (Civil Suit No.1084 of 1982) tilted as "Fateh Muhammad, etc. Vs. Ghulam Muhammad etc." challenging the order of Additional Deputy Commissioner Consolidation, Multan with the powers of Additional Settlement Commissioner (Land), Multan dated 14.02.1981 whereas, Hakim-udDin, respondent No.1 represented in the titled petition through his legal heirs as respondents No.1-A to 1-F (hereinafter referred to as "the second respondent") also instituted a suit for declaration (Civil Suit No.564 of 1983) tilted "Hakim-ud-Din Vs. Province of the Punjab & others", challenging the above said order dated 14.02.1981. In both suits, dispite impleading the Province of the Punjab, Additional Deputy commissioner Consolidation with the powers of Additional Settlement commissioner (Land), Multan as well as the present petitioners in the array of defendants, they were also made parties in the rival suits respectively as defendants. Fateh Muhammad etc., the first respondents in their suit for declaration stated that Qamar-ud-Din, their predecessor contracted two marriages; first with Mst. Khair-un-Nissa who died prior to the death of her husband, from the said wedlock two sons namely Fateh Muhammad & Khushi Muhammad and two daughters namely Mst. Sairan and Mst. Nazran (plaintiffs/the first respondents) were born and second with a widow namely Mst. Najo, from the said wedlock two daughters namely Mst. Ruqia & Mst. Ashra and one son namely Shah Muhammad were born who died in their childhood, however, she had a daughter namely Mst. Khijoo (defendant No.2) from her previous husband namely Muhammad Siddique; that Qamar-ud-Din (deceased) was owner of land measuring 615 kanals in District Hissar in three different Mauza Jat; that after his death, mutation of his inheritance was attested according to customary law under which 1/3rd share of his estate went to his widow Mst. Najo and rest of his 2/3rd estate was mutated in the names of his two sons namely Fateh Muhammad and Khushi Muhammad, i.e. 1/3rd share each; that Mst. Najo was a limited owner in the suit land; that after the creation of Pakistan, upon submission of separate claims in lieu of land abandoned by them in India, land measuring 128 kanals in Mauza Faridpur, land measuring 52 kanals in mauza Mirzapur, land measuring 60 kanals in mauza Bazdar-wala, Tehsil & District Multan and land measuring 375 kanals in mauza Daud-Wala, Tehsil Sadiqabad District Rahim Yar Khan was allotted; that Mst. Najo died in the year 1958 leaving behind one daughter, one brother and one sister (defendants No.1 to 3) (hereinafter referred to as petitioners) and her inheritance mutation No.165 was attested on 14.01.1959, according to which 1/8th share of her property went to her legal heirs Ghulam Muhammad etc., (petitioners) while the remaining 7/8 share went to Khushi Muhammad, Fateh Muhammad sons and Mst. Nazran and Mst.
Sairan daughters of Qamar-ud-Din (the first respondents); that litigation between the parties i.e. the first respondents and the petitioners, regarding the property inherited by Mst. Najo under the custom started after the sanction of said inheritance mutation; that it was settled by this Court that Mst. Najo was entitled to 1/8th share in the total legacy of Qamar-ud-Din, which was devolved upon the petitioners; that inheritance mutations were sanctioned in the all the mauzas regarding 7/8 share in favour of the first respondents and 1/8 share in favour of the petitioners which were challenged and regarding which appeals are pending; that thereafter, petitioners submitted an application before Additional Settlement Commissioner (Land), Multan with the prayer that their share of inheritance being 1/8 share should be reserved in Mauza Mirza Pur and Bazdar-Wala; that the Additional Settlement Commissioner, (Land), Multan vide his order dated 14.02.1981 allotted land in Mauza Mirzapur in favour of heirs of Mst. Najo i.e. petitioners and their outstanding entitlement was adjusted in Mauza Bazdar-Wala; that the said order was questioned by seeking declaration that it may be declared to be illegal and void being against the judgment of High Court because Additional Settlement Commissioner (Land), Multan has got no territorial jurisdiction pertaining to Mauza Daud-Wala of Tehsil Sadiqabad, District Rahim Yar Khan and took a stance that share of Mst. Najo equal to 1/8 share should be allocated in the four Mouza-Jat instead of only two Mouza Jat; that before passing of judgment of High Court, the first respondents had sold away their whole land in Mauza Mirzapur in favour of Hakim-ud-Din (the second respondent) and the order dated 14.02.1981 is also not maintainable on this score because Additional Settlement Commissioner (Land), Multan had no power to rescind the sale and prayed for decree of their suit.
3. The suit was contested by the heirs of Mst. Najo i.e. petitioners. Their stance is that after the pronouncement of judgment of Hon'ble High Court, the Settlement Commissioner (Land), Multan passed his order dated 08.07.1976 which was agitated in the writ petition, that dismissed in limine; that after the judgment of High Court dated 01.04.1974 and order of Settlement Commissioner dated 08.07.1976, the Civil Court has got no jurisdiction; that separate claims forms were submitted by Mst. Najo and others and lands were allotted separately and Mst. Najo was allotted land in Mauza Mirza Pur and Bazdar-Wala Tehsil & District Multan whereas Fateh Muhammad etc. the first respondents had been allotted land in mauza Fareed Pur Multan and Daud- Wala, Rahim Yar Khan, therefore, through impugned order dated 14.02.1981 Addl. Settlement Commissioner (Land) Multan, rightly adjusted the 1/8 share of Mst. Najo in favour of petitioners in Mauza Mirzapur and Mauza Bazdar-wala and prayed for dismissal of the suit.
4. The second respondent Hakim-ud-Din has submitted conceding written statement. Whereas, defendants No.5 & 6 in their written statement pleaded that the original prepositus Qamar-ud-Din had died in pre-partitioned India and his estate had been distributed according to the custom there and then. After migration, Mst. Najo submitted her separate claim form and land was allotted to her in Mauza Mirza Pur Tehsil Multan and her outstanding units were transferred to Mauza Bazdar-Wala, Tehsil & District Multan; that each of the legal heirs submitted their separate claim forms and got separate allotment; that in compliance to the judgment of Hon'ble High Court the entitlement of Mst. Najo was completed in Mauza Mirzapur and remaining land was adjusted in Mauza Bazdar-Wala and defended the impugned order dated 14.02.1981 passed by the Addl.
Settlement Commissioner (Land), Multan.
5. In his suit Hakim-ud-Din, the second respondent, averred that he purchased the share of land i.e. 7/8 share land measuring 45 kanals 10 marlas of Mauza Mirzapur from the first respondents i.e. Fateh Muhammad, Khushi Muhammad, Mst. Nazran and Mst. Sairan through registered sale deed in the year 1964 and since then he is in possession of the same; that the order of Additional Settlement Commissioner (Land), Multan dated 14.02.1981 being corum non judice, void-ab-intio, ineffective, against law & facts, liable to be cancelled and prayed for decree of his suit. Petitioners and other defendants filed their contesting written statements by taking similar stance as they have taken in the first respondent's suit.
6. The learned trial Court consolidated both the suits, framed consolidated issues and invited the parties to adduce their evidence in support of their stance. The first respondents got examined Ahmad Ali one of the plaintiffs as PW-1 and adduced documents Exh.P-1 to Exh.P-17 in their documentary evidence. The second respondent, Hakim-ud-Din appeared as DW-1 and produced documents Exh.D-1/4 to Exh.D-6/4. Thereafter, Muhammad Ali appeared as DW-1 while Ghulam Muhammad (defendant No.1/one of the petitioners) appeared as DW-2. They also tendered documents Exh.D-I to Exh.D-VI. After recording evidence of the parties, pro and contra, and hearing arguments of learned counsel for the parties, the learned trial Court dismissed the suit of Fateh Muhammad etc., whereas, decreed the suit of Hakim-ud-Din conditionally vide judgment and decree dated 31.07.1989 while observing as under: - "Still I am of the view that this discretion should have been exercised judiciously and not arbitrarily.
If the entitlement of Mst. Najo should have been reserved to Mauza Bazdarwala and the surplus kept by herself should have been released from Mouza Mirzapur, it was in the best interest of Mst.
Najo as well as Hakim-ud-Din. On this score the order of learned Additional Commissioner is not in consonance to the principle of justice and equity.
19. As far the other ground that by the attestation of the mutation, the order of the Worthy High Court had been implemented and there was no scope with the learned Assistant Settlement Commissioner to take any action again is of no worth for the reasons that the attestation of mutations in all the four mouzas is not in accordance to the facts of the case.
20. Consequently, I am of the view that plaintiffs are no more owners in the suit property. Their stand is absolutely incorrect. To their extent the order of the learned Assistant Settlement Commissioner is absolutely sound. As for the claim of Hakim-ud-Din it is true the order is defective to this extent only that there it is genuine and possible to protect his rights alongwith the protection of the interest of Mst. Najo. To my best ability it was the best possible and in the interest of justice and anti-entitlement of parties that Mst. Najo's interest should be reserved in Mauza Bazdarwala first. If her any share still remains un-satisfied, it should be satisfied from Mauza Mirzapur. Then the surplus if any should be kept for Hakim-ud-Din if any land still remains un- distributed, then it should go to the plaintiffs. This is the answer to all the issues."
Feeling aggrieved, Ghulam Muhammad etc. the petitioners, Anwar Ali son of Fateh Muhammad etc., the first respondents and Hakimud-Din the second respondent, preferred their separate appeals. The learned appellate Court vide consolidated judgment and decree dated 21.06.1999 partially accepted all the said appeals with the modification that the legal heirs of Mst. Najo will be entitled to get land equal to 129 units only in village Mirzapur and the surplus in village Mirzapur will go to Hakim-ud-Din as vendee of Fateh Muhammad etc., Hakim-ud-Din will make up his deficiency from the holdings of Fateh Muhammad, etc. the land of other village Bazdar-wala with the following observations: - "As held in PLD 1991 SC 582 provisions of Section 2-A (a) contain a command that acquisition of agricultural land before the enactment of the Act No.13 of 1983 by a male heir though in fact under custom from his predecessor in interest (who was a Muslim yet the heir), shall be deemed to have become on such acquisition an absolute owner of such land as if such land had devolved upon him under the Muslim Personal Law. It has been further held by Hon'ble Supreme Court that male heir having acquired agricultural land under custom from the person who at the time of such acquisition was a Muslim thus had by virtue of deeming provisions in S.2-A (a) become an absolute owner of land as if such land devolved on him under the Muslim Personal Law. Sub Section (b) provides that any decree, judgment or owner of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act. Under sub section (c) it was held that all suits or other proceedings of such a nature pending in any court and all execution proceedings seeking possession of land under such decree shall abate forthwith. Provisions of Section 2-A saves past and closed transactions which is not the case in the present appeal.
Khushi Muhammad and Fateh Muhammad were allotted 2/3 share under custom as sons of Qamar-ud-Din while 1/3 share was allotted to Mst. Najo as limited owner. The allotment of land to Khushi Muhammad and Fateh Muhammad was on their claims in lieu of the said land allotted to them. According to change brought by Act No.13 of 1983 which was retrospective in operation, Khushi Muhammad and Fateh Muhammad became absolute owners of the said land w.e.f. the date on which they acquired the land as sons of Qamar-ud-Din through under customary law. In these circumstances case of 1/3 share inherited by Mst. Najo as limited owner will only re-open.
Her legal heirs will get 1/8 share out of this land allotted against her 1/3 share in the property of Qamar-ud-Din and worked out in Ex.P-17. The total holding of Qamar-ud-Din was equal to 3095 index units. 1/3 share of Mst. Najo was equal to about 1032 units. Her legal heirs Ghulam Muhammad, etc. will get 129 units. They will be entitled to adjustment of land equal to 129 units in village Mirzapur where she filed claim. The land allotted to her in Mirzapur was equal to 246 units as given in Ex.P-17. Her legal heirs will surrender the surplus land in village Mirzapur. The contention of Hakim-ud-Din that he was not given proper hearing while passing order dated 14.02.1981 is not tenable for several reasons. It is correct that he had the right of hearing as held in 1994 SCMR 397 and PLD 1981 SC AJK 47 but the facts of present case are a bit different. He purchased land through sale deed dated 4.2.1964 (Ex.D.1/4) when litigation regarding this property was pending in different forums. He was not unaware of this litigation. Ex.D.2 is copy of his application dated 1.8.1974 submitted to Settlement Commissioner (Land), Multan for becoming party after remand of the case under writ petition No.842-R of 1973. He being transferee during pendency of litigation and being aware of litigation but still staying away cannot agitate at this stage that the impugned order is against the law and facts and is void against his interest. Apart from it, it was agreed between Khushi Muhammad, etc., and him that the vendor will be responsible if the suit land goes out of his possession for any reason. The findings of learned trial Court on these issues not taking into accounts entire facts brought on record and the change brought by Act No.13 of 1983 are not maintainable in toto and are modified accordingly."
Being dis-satisfied, petitioners and the second respondent filed their respective Civil Revisions.
7. I have heard learned counsel for the parties at length and perused the record with their able assistance.
8. Admittedly, Qamar-ud-Din was owner of the land measuring 615 kanals in three Mauza-Jat of District Hissar situated in India who died pre-partition in the year 1944 leaving behind one widow namely Mst. Najo two sons namely Khushi Muhammad, Fateh Muhammad and two daughters Mst.
Nazran and Mst. Sairan. His inheritance mutation was sanctioned according to the Customary Law in favour of his widow Mst. Najo 1/3 share and in favour of his sons with regard to 2/3 share of his estate. After creation of Pakistan, separate claim forms were filed and in response to said claim forms Mst. Najo was allotted land in Mauza Mirzapur and Mauza Bazdar-wala of District Multan, whereas, Fateh Muhammad and Khushi Muhammad were allotted land in Mauza Fareedpur District Multan and Mauza Daud-wala, Tehsil Sadiqabad District Rahim Yar khan. Disputes arose and litigation started between the parties after the demise of Mst. Najo when her inheritance mutation No.165 was sanctioned on 14.01.1959 (Exh.D-3/4). According to which 1/8 share of her property went to her legal heirs i.e. Mst. Khijoo daughter, Ghulam Muhammad brother and Mst. Sabiran sister/petitioners. While the remaining 7/8 share went to Khushi Muhammad, Fateh Muhammad sons and Mst. Nazaran and Mst. Sairan daughters of Qamar-ud-Din/the first respondents. Being dis-satisfied her daughter Mst. Khijoo (petitioner No.2) preferred an appeal against mutation No.165 which was dismissed on 23.06.1964. However, her revision petition was accepted by the Additional Settlement Commissioner and the case was remanded to the Deputy Settlement Commissioner for fresh decision on merits. The Deputy Settlement Commissioner again dismissed her appeal on 03.05.1965 and upheld the order of Assistant Collector dated 14.01.1959 for sanctioning of the mutation No.165 in favour of all the legal heirs of Qamar-ud-Din. This order was again challenged by Mst. Khijoo (petitioner No.2) through revision petition before the Settlement Commissioner which was accepted on 22.02.1966 and Mst. Khijoo was held to be owner of entire 1/3 share allotted to her mother Mst. Najo. The first respondents/Khushi Muhammad etc. assailed the said order through constitutional petition (W.P. No.319-R of 1966) before this Court which was accepted on 06.06.1973 (Exh.P-10) and the case was remanded to Settlement Commissioner (Land) Multan for fresh decision in accordance with law in the following terms: - "The Settlement Commissioner decided the case in favour of the respondents on the ground that the land allotted to Mst. Najo deceased was a grant and as such her legal heirs were entitled to inherit the same. Now it is settled law that she had the land as limited owner under the Customary law and on her death, on termination of her limited interest, succession, shall be opened to all the persons who would have been entitled to inherit the property at the time of the death of the last male owner had the Shariat law been applicable at the time of such death and in the event of death of any of such person before the termination of limited interest, mentioned above, succession shall devolve on his heirs and successors existing at the time of termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Shariat Law. Reliance in this respect can be placed upon "Additional settlement Commissioner (Land), v. Muhammad Shafi" (PLD 1971 SC 791). This being the position, succession in the present case will be decided in accordance with law and the provisions as contained in Para:46-A of Rehabilitation Settlement Scheme. Both the learned counsel for the parties agreed to this. The impugned order dated 22.01.1966 is, therefore, set-aside, as it cannot be maintained under the law."
9. On remand, the Settlement Commissioner vide his order dated 15.09.1973 decided that succession will open in favour of legal heirs of Qamar-ud-Din only with regard to 1/3 share of Mst.
Najo in respect of the estate held by Mst. Najo as limited owner under the custom and not with regard to the remaining 2/3 of his estate left by Qamar-ud-Din, which after his death was mutated in favour of Khushi Muhammad and Fateh Muhammad. Petitioners/Ghulam Muhammad, etc., challenged the said order through Writ Petition No.842-R of 1973 which was accepted by this Court on 01.04.1974 (Exh.P-11) in the following terms: - "6. As discussed above, Para: 46-A of the Scheme lays down that in respect of agricultural property held by a Muslim female as limited owner under the customary law succession shall be deemed to be opened out on the termination of her limited interest to all the persons who would have been entitled to inherit the property at the time of the death of the last full owner had the shariat law been applicable at the time of such death. "All the persons" who can inherit the property in such an eventuality include the widow survived by the last male owner. The proviso II of this para further makes it clear that the share which the female owner would inherit had the shariat law been applicable at the time of the death of last full owner shall devolve on her if she loses her limited interest in the property on account of her marriage or remarriage and on her heirs if her limited interest terminates because of death. It means that whatever share a female limited owner is to get out of the total estate left by her husband would devolve on her heirs after her death. In the present case, there is no doubt that Mst. Najo was given 1/3 share of the land left by her husband as limited owner but after her death, her 1/8th share is to be taken-out, out of the total estate left by her husband and not out of a part of the said estate given to her as limited owner otherwise the purpose of Para:46-A of the Scheme would be defeated. The observations as made in the remand order is that succession in the present case could be decided in accordance with the provisions as contained in Para:46-A of the Scheme.
7. The learned counsel for the contesting respondents has argued that 2/3rd of the estate left by Qamar-ud-Din was given to the respondents as owners who got their claim in respect that duly verified and got the land allotted in lieu thereof. It may be so, but we have to see that how much land was left by Qamar-ud-Din at the time of his death in 1944. According to law 1/8th of the said land would devolve on the heirs of Mst. Naju under Para:46-A of the Scheme. Resultantly, accepted the writ petition, set-aside the impugned order and remanded the matter to the settlement Commissioner (Land) Multan for fresh decision, in accordance with law and in the light of observations made by this Court, after hearing the parties."
10. In the light of said observation by this Court, the Additional Settlement Commission (Land)
Multan vide order dated 08.07.1976 (Exh.P-8) held that total area of Qamar-ud-Din which stood in special Jamabandi in the name of Khushi Muhammad, Fateh Muhamad and Mst. Najo amounting to 179 Bighas and 03 Biswa s and 1/8 share of this land i.e. 22 Bighas and 08 Biswas was the entitlement of heirs of Mst. Najo (petitioners) while the remaining was of Khushi Muhammad, Fateh Muhamad Mst. Nazaran and Mst. Sairan sons/daughters of Qamar-ud-Din (the first respondents) in the following manner: - "Munshi Bunaid Ali, Patwari Central Office Lahore clearly stated that total area of Qamar-ud-Din which stood in the special Jamabandi in the name of Khushi Muhammad, Fateh Muhammad sons of Qamar-ud-Din and Mst. Najo widow of Qamar-ud-Din amounting to 179 Bighas 03 Biswas. It appears that Khushi Muhammad and Fateh Muhammad and Mst. Najo had got the land from Qamar-ud-Din. Now according to the directions of the High Court as contained in paragraph 7 of the order dated 01.04.1974, 1/8th share of this land i.e. 22 Bighah and 08 Biswas shall go to legal heirs of Mst. Najo while the remaining to Khushi Muhamad Fateh, Muhammad and Mst. Nazaran and Mst. Sairan".
11. Fateh Muhammad etc. (the first respondents) challenged the said order through writ petition No.1080-R of 1976 which was dismissed in limine by this Court vide order dated 04.06.1978 (Exh.P-9).
Thereafter, Ghulam Muhammad etc. (petitioners), submitted an application to Additional Settlement Commissioner (Land) Multan for implementation of his order dated 08.04.1976, who vide impugned order dated 14.02.1981 (Exh.P-17) worked out total holding of Qamar-ud-Din in terms of Units as 3095 and observed that Mst. Najo share was equal to 387 units, she filed claim in Mauza Mirzapur and got allotment in that village by appearing in person; that she got allotment of her remaining share in Mauza Bazdar-wala by appearing in person; that therefore, she was given land equal to 246 units in Mauza Mirzapur and her remaining entitlement was adjusted to Mauza Bazdar-wala. The concluding para of order dated 14.02.1981 is as under: The said order dated 14.02.1981 was challenged by both sets of respondents i.e. the first respondents and the second respondent through their independent suits. The stance of the first respondents is that as the inheritance of Qamar-ud-Din was opened and in lieu of his evacuee property land was allotted in mouza Mirzapur, mauza Bazdar-wala, mauza Fareedpur and mauza Daud-Wala, therefore, petitioners were entitled to get their 1/8 share equally in all the four mauzas and in this regard mutations No.90, 91, 92, 93 dated 27.04.1980 (Exh.P.1, Exh.P.2, Exh.P.3 & Exh.P.4) were sanctioned and appeals preferred their against by the petitioners were dismissed on 15.02.1984 (Exh.P.16), therefore, said mutations attained finality, whereas the stance of the second respondent is that after inheritance mutation No.165 of Mst. Najo, he purchased land 45 kanals 10 marlas from Fateh Muhammad, etc., the first respondents of mauza Mirzapur through registered sale deed No.370 dated 04.02.1964 (Exh.D.2/4) and mutation No.7 dated 17.06.1964 (Exh.D.4/4) followed by said sale deed was also sanctioned in his favour, therefore, the impugned order with regard to allotment of 1/8 share in Mauza Mirzapur is against facts and law and ineffective upon his right.
12. With regard to the main controversy that whether impugned order dated 14.02.1981 passed by respondent No.3 is in accordance with law or otherwise, the learned Trial Court framed issue No.7 in the following terms:- ISSUE NO.7.
Whether the order dated 14.02.1981 passed by defendant No.S is illegal, void, against the facts, hence, inoperative qua the rights of plaintiffs and defendant No.4?
Learned Trial Court while dealing with this issue held that the order dated 14.02.1981 to the extent of the first respondents is sound as they were not remained owner in the suit property, however, with regard to the second respondents declared that their claim is true and held that Mst. Najo's interest should be reserved in Mauza BazdarWala first and if any share still remains unsatisfied, then it should be satisfied from Mauza Mirzapur and the surplus, if any, should be kept for the second respondent. Learned Appellate Court while partially accepting all the three appeals modified the findings. Learned Appellate Court in the light of Section 2-A introduced by Ordinance No.XIII of 1983 dated 01.08.1983 in the West Pakistan Muslim Personal Law (Shariat Application Act), 1962 observed that Khushi Muhammad and Fateh Muhammad allotted 2/3 share under custom but according to the change brought by Act No.XIII of 1983 which was retrospective in operation, they became absolute owner and only the 1/3rd share inherited to Mst. Najo as limited owner will re-open and held that total holding of Qamar-ud-Din was equal to 3095 index units and 1/3rd share of Mst. Najo was equal to 1032 units and according to Sharia she was entitled to 1/8 share out of said units which came into 129 units and her legal heirs will be entitled to that shares only and also declared that said 129 units be adjusted from Mauza Mirzapur.
13. Learned Appellate Court through this judgment again opened the Pandora-box which was already settled by this Court in the Writ Petition No.319-R of 1966 vide order dated 06.06.1973 (Exh.P.10). This Court held that on the death of Mst. Najo, termination of her limited interest, succession shall be opened to all the persons who would have been entitled to inherit the property at the time of the death of last male owner had the Shriat Law been applicable at the time of such death and in the event of death of any of such person before the termination of limited interest, succession shall devolve on his heirs and successors existing at the time of termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Shariat Law. In the light of said judgment of this Court, Settlement Commissioner on remand vide his order dated 14.09.1973 distributed the 1/3 share of Mst. Najo in favour of legal heirs of Qamar-ud-Din. Said order was again assailed before this Court through W.P. No.842-R of 1973 which was accepted by this Court on 01.04.1974 (Exh.P.11) and in the light of para 46-A of the West Pakistan Rehabilitation Settlement Scheme observed that in respect of agricultural property held by a Muslim female as limited owner under the customary law succession shall be deemed to be opened out on the termination of her limited interest to all the persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Shariat Law been applicable at the time of such death and the share which the female owner would inherit had the Shariat Law been applicable at the time of the death of last full owner shall devolve on her if she looses her limited interest in the property. Meaning thereby, whatever share a female limited owner is to get out of the total estate left by her husband would devolve on her heirs after her death. In the light of said judgment of this Court, Addl. Settlement Commissioner (Land) Multan passed an order on 08.07.1976 (Exh.P.8) and declared that 1/8 share of Mst. Najo is 22 Bigas and 8 Biswas. Said order was again assailed before this Court through W.P. No.1080-R of 1976 which was dismissed-in-limine by this Court vide order dated 04.06.1978 (Exh.P.9) which was not further assailed and in this way the entitlement of legal heirs of Mst. Najo attained finality but the learned Appellate Court in presence of the judgments of this Court again re-opened the matter.
14. The Rehabilitation Commissioner, West Pakistan, under Section 6(1) of the Pakistan Rehabilitation Act, 1956 (XLII of 1956) introduced West Pakistan Rehabilitation Settlement Scheme and under Para 46-A of the said scheme described the inheritance of a Muslim female after termination of her limited interest in the following manner: "46-A in respect of agricultural property held by a Muslim female as a limited owner under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Shariat Law been applicable at the time of such death and in the event of the death of any of such persons before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Shariat Law: Provided that the share which the female limited owner would have inherited had the Shariat Law been applicable at the time of the death of the last full owner shall devolve on her if she loses her limited interest in the property on account of her marriage or remarriage, and on her heirs if her limited interest terminates because of death."
15. Section 5 of the Act of 1962 describe the rule of devolution on the termination of life estate as under: "5. DEVLOUTION OF PROPERTY ON THE TERMINATION OF LIFE ESTATE AND CERTAIN WILLS--the life estate terminated under Section 3 or the property in respect of which the further operation of a will has seized under Section 4 shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner or the testator as though he had died intestate and if any such heir has died in the meantime, his share devolve in accordance with Shariat on such persons as would have succeeded him if he had died immediately after the termination of the life estate or the death of the said legatee: provided that the share to which a Muslim Female holding limited estate under customary law would have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner shall devolve on her.
16. The august Supreme Court of Pakistan in a case titled "Addl. Settlement Commissioner (Land), Sargodha Vs. Muhammad Shafi & others" (PLD 1971 SC 791) while answering the question that whether an evacuee property allotted to a female in lieu of a limited estate left by her in India would, on her death, devolve on her own heirs or on the heirs of the last male heir of the property abandoned in India, observed that the evacuee property allotted to her would, on her death, under para No.46-A of Rehabilitation Settlement Scheme deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Shariat Law been applicable at the time of such death devolve on the heirs of the last male owner of the property left in India and not on her own heirs by holding as under:- "This appears also to find confirmation from the provisions of paragraph 29 of the West Pakistan Rehabilitation Settlement Scheme itself which postulates that rights under this scheme should be given to a claimant only in accordance with the entries in the special Jamabandis received from the prescribed areas of India. The Jamabandis received from India described her as holding only a widow's and nothing more and are accompanied by a Shajrah Nasab of her late husband and not in respect of her own family. It is in respect of this estate, therefore, that she is first given a temporary allotment and if she dies while still holding such a temporary allotment, succession under paragraph 46-A of the scheme is to be "deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Shariat Law been applicable at the time of such death."
17. This Court while keeping the said scheme as well as judgment of august Supreme Court of Pakistan through orders dated 06.06.1973 (Exh.P.10) and 01.04.1974 (Exh.P.11) observed that her 1/8th share is to be taken out, out of the total estate left by her husband and not out of a part of the said estate given to her as limited owner. It was also observed by this Court in judgment (Exh.P-10) that both the learned counsel for the parties agreed to this. The share of legal heirs of Mst. Najo was settled and agreed by both the parties, became past and closed transaction. Hence, learned Appellate Court erred in law and ignored the verdict of this Court while passing the impugned judgment which is not sustainable in the eye of law.
18. Admittedly, on the separate claim forms of Mst. Najo she was allotted land in Mauza Mirzapur and Mauza Bazdar-wala as evident from the copies of RL-II No.19 (Exh.P.14, Exh.P.15). The first respondents admitted this fact in their suit titled as "Fateh Muhammad etc. versus Ghulam Muhammad etc." (Exh.D-3) wherein they challenged the order dated 08.07.1976 of Settlement Commissioner (Exh.P-8). Said suit was dismissed vide judgment and decree dated 08.09.1982 (Exh.D-4/Exh.D-5). The first respondents in para No.6 of the plaint stated that on her claim form Mst.
Najo was allotted land measuring 542 kanals in Mauza Mirzapur and land measuring 60 kanals in Mauza Bazdar-wala. Ahmad Ali while recording his statement as PW-1 maintained that Mst. Najo filed her separate claim form and in lieu of it she was allotted land in Mauza Mirzapur and in Mauza Bazdar-wala. The second respondent also admitted this fact in his plaint. Addl. Settlement Commissioner (Land) keeping in view that Mst. Najo filed her claims in village Mirzapur which was partly settled there and remaining claim was adjusted in village Bazdar-Wala held that her legal heirs were entitled to get land in Mauza Mirzapur according to their entitlement and the remaining in Mauza Bazdar-Wala. The august Supreme Court of Pakistan in a case titled "Muhammad Yousaf & others V. Settlement Commissioner Land, & others (1985 SCMR 1669) observed that where allotment was made at one time and land remained with the allottee, it would be in the fitness of things to allow him choice as to which area of land he would surrender if required for cancelling the allotment, held as under: "Where the allotments had been made on different dates, the Settlement Authority would certainly be justified in cancelling the allotments made subsequent to the satisfaction of the allottee's claim, but when the entire allotment had been made at one time and the land so allotted had remained with the allottee for a sufficiently long period so as to justify the assertion that he had developed the same at considerable expense and labour, it will be in the fitness of things to allow him a choice as to which area of the land he would surrender. This is all the more so where the resumption of the excess area is only by way of rectification of any error committed by the allotting authorities and is not punitive as is in the case of fraud or mis-representation on the part of the allottee. A denial of choice in the formal situation will partake of a punitive incidence which is not the intention of the law. However, in consonance with the provision of para-30 of the Supplementary Scheme No.2, the surrender of excess area must be as far as possible in a compact block. "
19. This Court in a case "Lakhey Khan & others V. A.C/D.C./Addl. Commissioner & others" (1994 CLC 1830) held that an allottee who was in possession of disputed land, was in law competent to retain same exercising his choice and other persons from whose name same was cancelled had no legitimate claim in respect thereof for the reason that original allottee being first allottee was in possession competent to retain same exercising his choice.
20. In the instant case, the possession of petitioners over the land allotted to Mst. Najo is not disputed. Although, the first respondents and the second respondent admitted possession of the petitioners i.e. Ghulam Muhammad with the assertion that he is in possession as a tenant of Hakim-ud-Din but there is no evidence on record to establish that petitioner Ghulam Muhammad was in possession of the property being tenant. Respondent No.3, keeping in view facts & circumstances of the case as well as the record of RL-II wherein the land was allotted in Mauza Mirzapur and Mauza Bazdar-wala in lieu of claim forms submitted by Mst. Najo passed the impugned order dated 14.02.1981 which is quite justified. Learned counsel for the first respondents and the second respondent failed to convince this Court that impugned order dated 14.02.1981 passed by respondent No.3 is against facts & law and not sustainable.
21. The second respondent purchased the land from the first respondents during the pendency of litigations as litigation started immediately after the sanction of inheritance mutation No.165 dated 14.01.1965 of Mst. Najo. He being transferee during pendency of litigation and being aware of litigation cannot get the benefit of bonafide purchaser without any notice. Even otherwise, protection under Section 41 of the Transfer of Property Act, 1882 is not available as the suit property is an evacuee property.
22. In view of above discussion, revision petition of the petitioners titled as "Ghulam Muhammad (deceased) through LRs, etc. V. Hakim-ud-Din (deceased) through LRs, etc." (C.R. No.363-D of 1999) is allowed, whereas, the revision petition of the second respondents titled as "Hakim-ud- Din, etc. V. Province of Punjab, etc." (C.R. No.421-D of 1999) is dismissed. Resultantly, judgments & decrees of both the Courts below dated 31.07.1989 & 21.06.199 are hereby set-aside and suits of the first respondents and the second respondents are dismissed with no order as to cost.