AHMAD NADEEM ARSHAD, J. This civil revision is directed against the judgment and decree dated 24.11.2009, whereby , the learned appellate Court while accepting the appeal of respondent No.1/plaintif f set-aside the judgment and decree dated 28.1 1.2008 of learned trial court and decreed her suit.
2. Facts in brevity are that plaintif f (herein after referred to as respondent No.1) instituted a suit for declaration on the basis of inheritance tilted as "Rehmat Bibi vs. Bahawal Khan etc." on 31.03.2003 with the contentions that predecessor of plaintif f and defendants No.1 to 31 namely Sardar Khan son of Jinda Khan was allottee of 300 kanals land situated in Khata No.17 Khatoni No.40 under 'Abad-Karri' Scheme according to record of rights for the year 1943-44, and Ihata No.90 measuring 02 kanal, Ihata No.43 measuring 01 kanal and Ihata No.44 measuring 01 kanal 02 marla. Similarly , paternal cousin of their predecessor namely Ahmad Khan son of Khan Muhammad was also allottee of 1/3rd of the following lands:- Land measuring 200 kanal in khata No. 18, khatoni No.46,47,48 according to the record of rights for the year 1947- 48; Land measuring 100 kanal situated at Khata No.19 khatoni No.39; and Land measuring 100 kanal situated at khata No.20 khatoni No.30 & 31. T otal land 400 kanals.
After the demise of their predecessor , his inheritance mutation No.16 (Exh.P-4) was sanctioned on 13.12.1945 under the order of Assistant Commissioner , Bahawalpur dated 09.05.1945 (Exh.P-5) in the name of his three sons namely Ghulam Qasim, Ghulam Muhammad and Ghulam Haider by excluding his three daughters namely Bakhtan Bibi, Gullo Bibi and Rehmat Bibi (respondent No.1) as well as widow namely Mst. Allah Wasayie. Ahmad Khan son of Khan Muhammad, paternal cousin of their predecessor Sardar Khan died issueless and his inheritance mutation No.24 was sanctioned on 10.04.1952 in favour of above mentioned three sons of Sardar Khan by excluding his three daughters and sought declaration to the effect that entries of said mutations in the relevant revenue record and order dated 09.05.1945 are fake, fictitious, forged, void and ineffective upon her rights along with the defendants No.22 to 31 and prayed that she may along with the other defendants No.22 to 31 be declared owners to the extent of their legal shares. Petitio ners/defendants No.5 to 11, 14, 15 & 18 to 21 (hereinafter referred to as the petitioners) contested the suit by way of filing written statement and besides raising certain preliminary objections of law and facts vehemently repudiated the stance taken by respondent No.1. Whereas, defendants No.25, 26, 28, 29, 38, 39, 46, 56, 57, 58, submitted their conceding written statement through their special attorney .
Defendants No.27, 33, 36, 49 & 53 were proceeded against exparte. Respondent No.1 had withdrawn her suit to the extent of defendants No. 2, 3, 4, 22, 23. 24, 30, 31, 32, 33,34, 35, 37, 40, 41, 42, 43, 44, 45, 47, 48, 49, 50, 51, 52, 54, therefore, learned trial Court vide order dated 30.05.2006 dismissed her suit to their extent. The learned trial court, keeping in view the divergent pleadings of the parties, framed necessary issues. After recording evidence of the parties, oral as well as documentary , pro and contra, vide judgment and decree dated 28.11.2008 dismissed the suit.
Feeling aggrieved respondent No.1 preferred an appeal which was allowed vide judgment and decree dated 24.11.2009 and while setting-aside the impugned judgment and decree of the learned trial Court, the learned appellate Court decreed her suit. Being dissatisfied, petitioners filed instant revision petition.
3. I have heard learned counsel for the parties at full length and perused the record with their able assistance.
4. Respondent No.1/plaintif f challenged the validity and legality of inheritance mutation No.16 dated 13.12.1945 of Sardar Khan and inheritance mutation No.24 dated 10.04.1952 of Ahmad Khan paternal cousin of her father on the grounds that said mutations were sanctioned in contravention of Islamic principles of inheritance by depriving legal heirs from their right of inheritance.
The leaned trial court dismissed the suit on the ground that said mutations were rightly sanctioned in the light of Section 20 of the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter referred to as "Colony Act, 1912") because Sardar Khan and Ahmad Khan were tenants of said land under Government of Punjab and inheritance of their tenancy rights would have to be settled under section 20 of the Colony Act, 1912 which defines that after death of a tenant its tenancy rights were devolved upon the male lineal descendants of the tenant.
Whereas, the learned appellate court accepted the appeal in the light of judgment of Hon'ble Supreme Court of Pakistan tilted as "UMAR DIN and another versus Mst. SHARIF AN and another" (PLD 1995 Supreme Court 686) and declared that rule of succession in the matter of inheritance was Qanun-e-Nifaz-e-Shariat Islamia, 1951 as it was promulgated in the state of Bahawalpur on 04.03.1951, therefore, from that date onward the law of inheritance is to be governed in accordance with the law of Sharia.
5. Admittedly , the suit property was allotted to the predecessor of the parties under the Colony Act, 1912 and the status of the allottee was tenant as the amount settled between the allottees and the Government had not been paid. Section 15 of the Colony Act, 1912 provides in express words that "a purchaser from Government of land who has been placed in possession, of the land by order of the Collector shall be deemed to be a tenant of such land until the full amount of the purchase money with any interest due thereon has been paid and the other conditions set-forth in the statement of the conditions of sale issued by the Collector have been fulfilled". On the strength of this statutory provision Sardar Khan and Ahmad Khan were tenants of the Government lands and admittedly price had yet to be paid by them.
6. The Colony Act, 1912 was extended to Bahawalpur State by a notification on 13.05.1924 through which the Colony Act, 1912 with certain adaptation was applied to Bahawalpur . For reference "Sher Muhammad Vs. Abdul Khaliq", (1968 SCMR 320). In this way, at the time of death of Sardar Khan in the year 1943 and Ahmad Khan in the year 1952, Section 20 of the Colon y Act,1912 was applicable for succession of their tenancy . For ready reference Section 20 of the Colony Act, 1912 is hereby reproduced as under: - "[20.Succession to tenants acquiring otherwise than by succession. Subject to the proviso to section 14, when, after the commencement of this At, any original tenant dies the succession to the tenancy shall devolve in the following order upon: -
(a) The male lineal descendants of the tenant in the male line of descent. (The term "lineal descendants' shall include an adopted son whose adoption has been ratified by a registered deed);
(b) The widow of the tenant until she dies, or remarries, or loses her rights under the provisions of this Act;
(c) The unmarried daughters of the tenant until they die or marry or lose their rights under the provisions of this Act;
(d) The successor or successors nominated by the tenant by registered deed from among the following persons, that is to say, his mother , [his pre-deceas ed son's widow , his pre deceased grand-son' s sister , his sister 's son, and the male agnate members of his family; and
(e) The successor or successors nominated by the Collector from among the persons enumerated in clause (d) of this section.
Therefore, the inheritance mutations of Sardar Khan (No.16 dated 13.12.1945) and Ahmad Khan (No.24 dated 10.04.1952) were sanctioned in the light of Section 20(a) of the Colony Act, 1912 in favour of male lineal descendants of the tenants.
7. Section 19-A was introduced in the Punjab through the Colonization of Government Lands (Punjab) Amendment Act, 1951 (Act III of 1951) on 20.01.1951 . Before inserting Section 19-A in the Colony Act, 1912 the succession of Muslim tenants was governed by Sections 20 to 23 of the Colony Act, 1912. Section 19-A could not be applicable automatically to Bahawalpur Region in absence of its express extension. For this purpose the Colonization of Government Lands (Punjab) (West Pakistan Amendment) Ordinance, 1963 was promulgated on 20.05.1963 (West Pakistan Ordinance No.XIII of 1963) through notification dated 21.05.1963 which was published in the Gazette of West Pakistan on May 22, 1963. Through Ordinance No.XIII of 1963 Section 1 (2) was substituted and the Colony Act, 1912 was extended to the Districts Bahawalpur , Bahawalnagar Campbellpur , Dera Ghazi Khan, Gujranwala, Gujrat, Jehlum, Jhang, Lahore, Lasbela, Lyallpur , Mianwali, Mintgomry , Multan, Muzaffargarh, Rawalpindi, Rahim Yar Khan, Sargodha, Sheikhupura and Sialkot. In this way Section 19-A was made applicable to the Districts Bahawalpur , Bahawalnagar and Rahim Yar Khan on 20.05.1963. For further reference "Sharifan Bibi, etc. versus Muhammad Siddique, etc." (2005 YLR 1806 =2005 UC 400). For ease Section 19-A of Colony Act, 1912 is reproduced as under: - "19-A. Succession to the tenancy .- When after the coming into force of the Colonization of Government Lands (Punjab) (Amendment) Act, `95`, any Muslim tenant dies, succession to the tenan cy shall devolve on his heirs in accordance with the Muslim Personal Law(Shariat), and nothing contained in sections 20 to 23 of this Act shall be applicable to his case: Provided that when the tenancy rights are held by a female as a limited owner under this Act, succession shall 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 Muslim Personal Law (Shariat) 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 Muslim Personal Law (Shariat): Provided further that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat 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 under the Muslim Personal Law (Shariat) if her limited interest terminates because of her death]".
8. Bahawalpur Shariat Act (Qanun-e-Nifaz-e-Shariat Islamia 1951) repealed Section 5 of the Punjab Laws Act, 1872 and made the Mohammadan Law of Succession applicable to all cases of inheritance of Mohammadans. It was published in the gazette on 5th of March, 1951 but had received assent on 4th of March, 1951. By all standards this was a general statue as compared to the Colony Act, 1912 which dealt with Government Grants and tenancies thereof. The question as to what extent a general law effects a special statute was considered extensively by august Supreme Court of Pakistan in "Mst. Imam Bibi Vs. Allah Ditta and others" (PLD 1989 SC 384=PLJ 1989 SC 397=NLR 1989 SD 718=NLR 1990 SCJ 264) and held as under:- "In this view of the matter , the principle led down in these treaties as to the application of the special law is no doubt, that, is, as all of them are unanimous to state that there is no implied repeal of the earlier special Act by the latter general Act without particular intention of implied repeal by the rules of general words.
It follows therefore, that the promulgation of the Shariat Law in Bahawalpur on 4th March, 1951 and repealing of the Punjab Laws Act had not the effect of derogating from the terms of the Act under which the grant was made."
Meaning thereby Bahawalpur Shariat Act which is a general statue cannot repeal provisions of the Colony Act, 1912 which is a special enactment.
9. The learned appellate court decreed the suit of respondent No.1 in the light of dictum laid down in UMAR DIN's case (supra) but failed to understand it. The august Supreme Court of Pakistan in the said esteemed judgment has held that succession to the tenancy to the original tenant of agricultural land would be governed by the provisions of Section 20 of the Colony Act, 1912 on the death of original tenant, however , where any tenant who had succeeded the tenancy from the original tenant dies, his tenancy was to be treated as agricultural land acquired by the original tenant for the purpose of determining right of succession of his heirs and the tenancy governed under section 21 of the Colony Act, 1912. Section 20 and 21 of the Colony Act, 1912 embodied two different rules of successions to the tenancy of the deceased tenant, applicable in different situations. It was held in the said esteemed judgment as under:- "From the above discussion it follows that the succession to the tenancy of the original tenant of agricultural land is governed in accordance with the provisions of section 20 of the Act on the death of the original tenant. However , when a tenant who had succeeded the tenancy from the original tenant dies, his tenancy is to be treated as the agricultural land acquired by the original tenant for the purpose of determining the rights of succession of his heirs.
It is, therefore, quite clear that the rule of succession to the 'tenancy' contained in the Act would not be applicable to the cases of succession falling under section 21(b) of the Act which governs the succession to the land acquired by a tenant under the provisions of the Act."
10. The august Supreme Court of Pakistan in its recent judgment titled as "Bashir Ahmad and others versus Mst. Fatima Bibi (deceased) through L.Rs and others" (2020 SCMR 72) differentiate the dictum laid down in Mst. Imam Bibi' s Case (supra) and Umar Din' s Case (supra) in the following manner:- "3. In Imam Bibi the tenancy rights were granted to one Nizam Din by the State of Bahawalpur . The grantee had not yet acquired proprietary rights in the tenancy when he passed away leaving behind a widow , a son (Allah Ditta) and two daughters, one of whom was Imam Bibi. In the mutation of Nizam Din's inheritance (attested in 1954) it was only the son, Allah Ditta, who was shown as having inherited the tenancy . In 1968 Imam Bibi, during Allah Ditta's lifetime, filed suit claiming her share in the tenancy as Nizam Din's daught er. To counter section 20 of the Colonization of Government Lands (Punjab) Act, 1912 ("1912 Act"), Imam Bibi claimed that her father had passed away in 1952, after the insertion of section 19-A into the 1912 Act, and relied on the overriding effect that the latter provision had as regards the former . It was found as a matter of fact that Nizam Din had died on 28.02.1951, and before the Act of 1951 whereby section 19-A was inserted into the 1912 Act took effect in relation to the State of Bahawalpur (see at pp. 388-9, paras 9-10). Imam Bibi also placed reliance on another Act, referred to in the judgment as the "Bahawalpur Shariat Act". It was held that this Act took effect on 04.03.1951. Since Nizam Din had passed away prior to this statute, it could not affect the position that emerged by virtue of section 20 of the 1912 Act (see para 11 at pg. 391). Imam Bibi's suit had been dismissed by the trial Court, decreed in first appeal by the Additional District Judge but again dismissed in second appeal by the High Court. Her appeal before this Court failed and was dismissed.
4. In Umar Din, tenancy rights had been granted by the State of Bahawalpur to one Muhammad Ibrahim, who died sometime prior to 1948. The tenancy rights were mutated in the names of his three sons, Muhammad Ismail, Ali Muhammad and Umar Din. Subsequently , Muhammad Ismail also died, leaving behind a widow (Mst. Sharifan) and a daughter . The tenancy rights of Muhammad Ismail were mutated in favour of his widow as a limited owner . Mst.
Sharifan subsequently remarried, and the mutation in her favour was cancelled, the tenancy (i.e., in relation to Muhammad Ismail) being recorded in favour of his other legal heirs, being the daughter and his two brothers, Ali Muhammad and Umar Din, all in equal share. Umar Din and Ali Muhammad, claiming exclusive rights to the tenancy even in relation to Muhammad Ismail's share, filed suit against Mst. Sharifan and her daughter . The suit was dismissed but decreed in first appeal. In second appeal (filed of course by Mst. Sharifan and her daughter) the High Court reversed, restoring the decree of the trial court dismissing the suit. Against this decision, Umar Din and Ali Muhammad filed appeal before this Court (see the narration of facts at pp. 688-9). The appeal was dismissed.
5. The appellants in Umar Din relied principally on the earlier decision in Imam Bibi, and this was considered in great detail at pp. 689-92. It was noted that in Imam Bibi the dispute was in relation to the succession of Nizam Din's tenancy , the original grantee. The dispute was between his son and one of his daughters. It was section 20 that was therefore engaged. In Umar Din, the question involved the succession to the tenancy rights to the extent that had devolved on Muhammad Ismail, who was not the original grantee (that being his father) but himself a legal heir. The question arose after Muhammad Ismail's death, and therefore it was section 21 of the 1912 Act that was engaged."
11. Through mutation No.16 dated 13.12.1946 (Exh.P-4) which was sanction ed in the light of order dated 09.05.1945 (Exh.P 5) passed by Assistant Commissioner , Bahawalpur , the tenancy of the Sardar Khan who was original tenant was rightly devolved upon his three sons namely Ghulam Qasim, Ghulam Muhammad and Ghulam Haider .
12. Inheritance mutation No.24 dated 10.04.1952 of Ahmad Khan deceased paternal cousin of Sardar Khan was sanctioned in favour of male lineal of deceased namely Ghulam Qasim, Ghulam Muhammad and Ghulam Haider sons of Sardar Khan prior to adaptation of 19-A of the Colony Act, 1912. Said mutation was also rightly sanctioned in favour of lineal descendants as section 19-A of the Colony Act, 1912 was not applicable at the time of demise of Ahmad Khan and sanction of the said mutation. Both the tenant namely Sardar Khan and Ahmad Khan were died before coming into force of Section 19-A of the Colony Act, 1912 in District Bahaw alnagar , therefore, their tenancy rights were to be governed by Section 20 of the Act, 1912. The learned appellate court has failed to consider this important aspect of the case while passing the impugned judgment and decree. Perusal of the record further reveals that although respondent No.1 challenged the validity and legality of inheritance mutation No.24 dated 10.04.1952 of Ahmad Khan deceased but she failed to bring on record said impugned mutation.
13. Epitome of above discussion is that the judgment and decree of learned appellate Court dated 24.11.2009 is against facts and law, result of mis-reading and non-reading of evidence on record, hence, not sustainable and tenable in the eye of law and liable to be set aside. Therefore, by accepting the instant Revision Petition, the impugned judgment and decree dated 24.11.2009 is hereby set aside, consequ ently, judgment and decree of learned trial Court dated 28.11.2008 is restored and suit of respondent No.1/ plaintif f is dismissed with no order as to costs.