SAFDAR SALEEM SHAHID, J. This civil revision has been directed against the judgments and decrees dated 31.07.2008 and 12.01.2009, passed by the learned Civil Judge, Yazman and the learned Additional District Judge, Bahawalpur, Camp at Yazman, whereby suit for declaration filed by respondent No.1 was decreed and the appeal of the petitioners was dismissed, respectively.
2. Brief facts necessary for disposal of the revision petition are that respondent No.1 filed a suit for declaration with permanent injunction to the effect that the mutation of inheritance No.26 dated 16.11.1952 in favour of Jalal Din (defendant No.1) and then mutation No.84 dated 28.02.1958 to bestow the proprietary rights on defendant No.1, pursuant to the conveyance deed and Mutation.
Nos.2 to 5 and mutation No.7 dated 30.01.1992 by petitioner No.1/defendant No.2 in favour of petitioners Nos.2 and 3/defendants Nos.3 and 4 and mutation No.8 dated 25.02.1992 in favour of petitioner No.4/defendant No.5 are illegal, without lawful authority and result of fraud. It was claimed by respondent No.1 that her father Hakim Ali was allotted land measuring 200-kanals in 1934. The said Hakim Ali died in the year 1948 leaving behind Mst. Irshad Bibi (respondent No.1) as his sole daughter and Mst. Sharifan Bibi (petitioner No.1/defendant No.2) as his widow. Mst. Sharifan Bibi (petitioner No.1/defendant No.2) later on contracted marriage with Jalal Din, who was real brother of Hakim Ali (deceased). In 1952 Jalal Din (defendant No.1) got sanctioned mutation of inheritance No.26 dated 16.11.1952 in his favour when respondent No.1/plaintiff was only two years old. Then superstructure was raised in the form of conveyance deed by the Government for grant of proprietary rights and gifts, excluding the plaintiff/respondent No.1 altogether. Respondent No.1/plaintiff filed suit to claim her right with the averments that she being an illiterate and Parda Nasheen lady could not get knowledge of the fraud and misrepresentation committed by Jalal Din defendant No.1 with the help of staff of the revenue department.
3. The petitioners/defendants Nos.1 to 5 contested the suit by filing their written statement while Qasim Ali defendant No.5/respondent No.2 filed conceding written statement. Out of the pleadings of the parties, the learned trial Court framed the following issues:-
1. Whether the plaintiff has any cause of action against the defendants to file this suit? OPD
2. Whether the suit is not maintainable as the basic order dated 12.10.1952 has not been challenged? OPD
3. Whether the suit is barred by law of limitation? OPD
4. Whether the suit is false, frivolous, vexatious and defendants are entitled to recover special costs under section 35-A of C.P.C.? OPD
5. Whether the suit is hit by section 36 of Colonization of Government Lands Act, hence court lacks jurisdiction to try the suit? OPD
6. Whether the plaintiff and defendant No.1 being legal heirs of Hakim deceased are entitled to get their respective shares in the suit property? OPP
7. Whether the plaintiff has been receiving her shares out of the suit property from the defendants Nos.2 to 5? OPP
8. Whether the inheritance mutation No.26 dated 16.11.1952 and subsequent mutation No.84 dated 28.2.1958 and gift mutation No.215 dated 28.5.1976 and later mutation No.7 dated 30.01.1992 and mutation No.8 dated 25.2.1992 all in respect of suit land are illegal, void, ab-initio to the extent of plaintiff and defendant No.1 and the same are liable to be declared as such? OPP
9. Relief.
4. Both the parties led evidence, oral as well as documentary, in support of their respective claims.
The learned Civil Judge while dealing with issues Nos.5, 6 and 8 observed that inheritance mutation No.26 dated 16.11.1952 was not sanctioned in accordance with law and decided the said issues in favour of respondent No.1/plaintiff. Since, in view of the findings on issues Nos.6 and 8, respondent No.1/plaintiff was found to be the legal heir of Hakim Ali deceased and entitled to receive her share in the inheritance, issues Nos.1, 2, 3, 4 and 7 were also decided against the petitioners and in favour of respondent No. l/plaintiff and as a result decreed her suit through judgment and decree dated 31.07.2008. The appeal filed against the same was dismissed by the learned Additional District Judge, through judgment and decree dated 12.01.2009.
5. Learned counsel for the petitioners argued that since after the death of Hakim Ali, who was originally allotted the land, Jalal Din had paid all the dues regarding the land in question, therefore, mutation No.26 was rightly sanctioned in his favour in the year 1952 and conveyance deed was also issued by the Government in his favour. Learned counsel argued that under Section 120 of the Limitation Act, such a suit was to be filed within six years and as such the same being barred by time was liable to be dismissed. Added that the plaintiff/respondent No.1 through her oral assertion admitted that she had the knowledge of all the transactions of property for the last 35 years but she never challenged the same and this point of limitation was not considered and answered correctly by the Courts below. Further argued that under Section 36 of the Colonization of Government Land (Punjab) Act, 1912, the jurisdiction of the Civil Court was barred. Added that father of the plaintiff/respondent No.1 died in the year 1948 and succession was opened as a custom and at that time Section 19-A of the Colony Act was not available at Bahawalpur State and it was enforced in the year 1951. Learned counsel for the petitioners argued that Jalal Din predecessor-in- interest of the petitioners was allotted the land under the order of the Collector dated 12.10.1952 as a result of which mutation No.26 was sanctioned in his favour. The order of the Collector dated 12.10.1952 was not challenged and even not brought on record by the respondent and despite the fact that a specific issue was framed, the learned Courts below did not give any findings on this point. Learned counsel argued that against the order granting proprietary rights and Pata Malkiyat a specific remedy under Section 30 of the Colonization of the Government Lands (Punjab) Act, 1912, is available and under Section 36 of the Act, the jurisdiction of the Civil Court is specifically ousted.
6. Learned counsel for the respondents, on the other hand, argued that admittedly Hakim Ali was allotted land measuring 200-Kanals in the year 1934, but before transfer of proprietary rights he died leaving behind Mst. Sharifan Bibi (widow) and Mst. Irshad Bibi (daughter). Jalal Din and Qasim Ali were the brothers of deceased Hakim Ali. After the death of Hakim Ali the property was to be devolved upon the legal heirs. Jalal Din contracted marriage with Mst. Sharifan Bibi widow of Hakim Ali. In the year 1952 the mutation was attested in favour of Jalal Din against the principle of law of inheritance and Mst. Irshad Bibi (plaintiff/respondent No.1), Mst. Sharifan Bibi (petitioner No.1) and Qasim Ali (respondent No.2) were deprived of their lawful Shari share. Thereafter, Jalal Din and Mst.
Sharifan Bibi in collusion-with each other transferred the property to petitioners Nos.2 to 4. It was the contention of the respondents that the property was to be devolved in accordance with Sharia instead of custom. The learned counsel argued that the limitation never runs in inheritance cases, especially when Jalal Din the predecessor-in-interest of the petitioners had been compensating respondent No.1, by paying her share. Learned counsel argued that Exh.P.3 mutation No.26 shows that it was an inheritance mutation executed in favour of Jalal Din predecessor-in-interest of the petitioners, meaning thereby that he got the same executed concealing about the other legal heirs and presenting himself to be the sole heir of Hakim Ali with mala fide intention. Further argued, that admittedly Hakim Ali had no male issue/descendant son or grandson, therefore, under Section 20 of the Colonization of Government Lands (Punjab) Act, 1912, the property was to be devolved upon the widow-as limited owner until she remarried or died. Further argued that after the death of Hakim Ali his widow Mst. Sharifan Bibi got married with Jalal Din, therefore, her right of limited ownership also extinguished and now the property was to be devolved upon unmarried daughter of Hakim Ali until she married or died. It was argued that admittedly at the time of remarriage of Mst. Sharifan Bibi, her daughter Mst. Irshad Bibi (plaintiff/respondent No.1) was of two years and as per law she was entitled to inherit her father's estate as limited owner. Learned counsel for the respondents relied upon the case reported as Mst. Imam Bibi v. Allah Dina and others (PLD 1989 SC 384), to argue that the Colonization of Government Lands (Punjab) Act, 1912 was extended to Bahawalpur on the 2nd of May, 1926 with a number of amendments. Since Section 19-A of the Act having been introduced in the Punjab by Act III of 1951 on 20.01.1951, after the remarriage of Mst.
Sharifan Bibi widow of Hakim Ali with Jalal Din, the property was to be devolved upon Mst. Irshad Bibi respondent No.1 as limited owner. She was entitled to hold the same till her death or marriage.
It was contended that respondent No.1 had proved that inheritance was to be devolved upon her as limited owner after the death of Hakim Ali, the original, allottee of the land anti the provisions of the Colonization Act being applicable at that time, the mutation of inheritance was to be sanctioned in accordance with Section 20 of the Act. It was argued that respondent No.1 was deprived of her right and the learned Courts below have rightly declared mutation No.26 as illegal, void and ineffective upon her right.
7. Arguments heard. Record perused.
8. Through this revision petition, the petitioner has raised some legal and factual objections which need determination:- i. Allotment was confirmed in the name of Jalal Din as he paid all the installments and satisfied all the terms and conditions required. ii. Mutation No.26 was rightly sanctioned under the order of District Collector dated 12.10.1952, which was not challenged by respondent No.1, therefore, mutation No.26 will have no negative effect in case the order dated 12.10.1952 is intact. iii. Against issuance of Pata Malkiyat and proprietary rights a specific remedy under Section 30 of the Colonization of Government Lands (Punjab) Act, 1912 was available, which was not exercised by respondent No.1 and under Section 36 of the Act jurisdiction of the Civil Court is specifically barred. iv. Limitation is the main legal aspect that knowingly all the transactions and mutations respondent had not challenged those will in time. Therefore, respondent No.1 was not entitled to any relief.
9. Since the matter relates to the interpretation of the provisions of Colonization of Government Lands (Punjab) Act, 1912, and its applicability, therefore, I will quote first the relevant Sections.
Section 4 of the Act, says:- "This Act shall, unless the Provincial Government otherwise directs, apply to land to which the provisions of the Government Tenants (Punjab) Act 1893, have been applied and to any other land to which the [Provincial Government] may by notification in the Official Gazette apply it and which at the time of the notification was the property of the Provincial Government."
10. The land is originally owned by the Provincial Government and by notification it was allotted to Hakim Ali the predecessor-in-interest of respondent No.1 in 1934. He cultivated the land till his lifetime and, according to the record he died in 1948. Thereafter Jalal Din his brother was cultivating the land and his name is appearing in Column No.8 (Kasht) of Jamabandi continued to cultivate the land. Neither the Government cancelled the allotment in the name of said Hakim Ali nor it was alleged by the petitioners through written statement filed. But it is admitted fact that in continuation of the allotment of Hakim Ali, after his death Jalal Din, the predecessor-in-interest of the petitioner had been cultivating the land. There is a question that if the said Hakim Ali had not been paying the rent under the terms and conditions or had not been fulfilling the conditions, the allotment might have been cancelled by the Government/District Collector. But neither it is the stance of the petitioners nor anything regarding this had been brought on record, meaning thereby that it is admitted and established fact that originally the land in question was allotted to Hakim Ali, the predecessor-in-interest of respondent No.1.
11. Section 19 of the Colonization of Government Lands (Punjab) Act, 1912, says:- "Except as provided in section 17, none of the rights or interests vested in a tenant by or under the Government Tenants (Punjab) Act, 111 1893, or this Act, shall, without the consent in writing of the ["Executive District Officer (Revenue)"], or of such officer as he may be written order empower in this behalf, be transferred or charged by any sale, exchange, gift, will, mortgage or other private contract, other than a sub-lease for not more than one year in the case of a tenant who has not acquired a right of occupancy, and seven years in the case of a tenant who has acquired a right of occupancy. Any such transfer or charge made without such consent in writing shall be void, and if (after the commencement of this Act) the transferee has obtained possession, he shall be ejected under the orders of the Collector."
Then in view of Section 19, if it is read with Section 19-A, which is about succession to the tenancy and reads as under:- "When after the coming into force of the Colonization of Government Lands (Punjab) (Amendment)
Act, 1951, any Muslim tenant dies, succession to the tenancy 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."
12. The bare reading of both the Sections establishes that under this Act the tenancy shall devolve upon the heirs in accordance with the Muslim Law. This is important that Section 19-A was enacted in 1951. Prior to that Section 20 was applicable to the succession of tenants acquiring otherwise than by succession. The contention of the petitioner is that Section 19-A of the Act was not applicable at the time when Hakim Ali died, whereas Jalal Din died after a long time of the death of Hakim Ali deceased. Under Section 20 of the Colonization of Government Lands (Punjab) Act, 1912, the property was to devolve upon the widow, of the tenant until she dies or remarries or loses her rights under the provisions of this Act; the unmarried daughters of tenant until they die or marry or lose their rights under the provisions of this Act. After the death of Hakim the allottee the land was to be devolved under Section 20 of the. Act to the widow and the daughter till their entitlement. It has been noted with great concern that neither the District Collector made any inquiry before issuance of Pata Malkiyat or grant of H proprietary rights as required' under this Act, nor the predecessor-in-interest of the petitioners disclosed the fact that under which capacity he was claiming the proprietary rights.
13. Admittedly, the land in question measuring 200-Kanals was allotted to Hakim Ali in 1934, but before issuance of proprietary rights he died in 1948 and thereafter the proprietary rights were given to Jalal Din his brother. It has been noted that at the time of sanctioning of mutation No.26 Jalal Din predecessor-in-interest of the petitioners concealed regarding the legal heirs available at the time of death of Hakim Ali the original allottee of the land. Case of the petitioners is supported by a consistent plea of all the DWs that since Jalal Din had paid the instalments, therefore, he was rightly confirmed the proprietary rights of the land, but a perusal of mutation. No.26 (Exh.P.3) shows that it was an inheritance mutation and that was to be devolved in accordance with Section 20 of the Colonization of Government Lands (Punjab) Act, 1912. Reliance in this regard is placed on the case of Saeed-ud-Din and others v. Hafeez Begum and others (2013 SCMR 1133), wherein it was held as under:- "According to section 20 of the Colonization Act, reproduced above, upon the death of the original tenant the tenancy was to devolve upon the persons mentioned therein. The first in line is the male lineal descendants. The categories mentioned in the clauses "(b) to (e)" can only be considered upon failure of the original tenant to be survived by the male lineal descendants.
There is no dispute that under section 20(a) the tenancy granted to Lal Din was to devolve upon his five sons and this was accordingly done when the Patwari prepared his report in the year 1946.
Section 19-A was added by the Punjab Act III of 1951, making a substantial departure from the provisions of section 20, regarding succession to the tenancy under the Act. By this addition where the Muslim tenant dies after the coming into force of section 19-A the tenancy shall devolve upon the heirs in accordance with the Muslim Personal Law; the provisions of section 20 has been excluded from the application of Section 19-A. This additional provision has been made applicable to those tenancies where the Muslim tenant dies after the coming into force of the amendment in the Act 1951. Lal Din had died in the year 1945 before the coming into force of section 19-A. His tenancy rights were thus to be regulated by section 20 and not section 19-A of the Act. The High, Court had erred in holding that the crucial time for the application of section 19-A would be the acquisition of ownership by sons of Lal Din in the year 1956. Section 19-A read with section 20 does not admit of such construction.
Section 15 of the Colonization Act provides that a purchase from the Government under the Act shall be deemed to be tenant until full, payment of the purchase money. Upon payment of the entire installments the sons who till then were tenants became full owners in the year 1956. They had thus become owners in their own light under the provision of the Act and not as legal heirs of Lal Din. The High Court has therefore erred in holding that the tenancy, or for that matter the ownership of the property, was subject to distribution under the Islamic Law of Inheritance. In Mst.
Ghulam Bano v. Mst. Noor Jehan (ibid) the daughters of the original" tenant under the Colonization Act claimed share in the legacy of their father on the basis of section 19-A of the Act as well as section 2-A of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962.
The contention on their behalf was repelled and it was held that where the Muslim tenant had died before the year 1951, his daughters could neither claim the benefit of section 19-A nor section 2 A of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962."
Further reliance is placed upon the case of Khan Muhammad through L.Rs. and others v. Mst.
Khatoon Bibi and others (2017 SCMR 1476), wherein it is held:- "While reverting back to the facts and circumstances of the case in hand, it is admitted and established on the record that the propositus of the parties died in the year 1944 leaving behind his only son Sadiq alias Sadu and the two widows and a daughter of his pre-deceased son namely Rajada. In view of the introduction of section 2-A to the Act V of 1962, Sadiq alias Sadu though inherited as legal heir but also became full owner. His inheritance devolved upon his son to the extent of 1/2 share and the remaining 1/2 share went to the two widows as limited estate holders. Their limited estate got terminated after promulgation of the Act V of 1962 and by the time section 4 of the Ordinance VII of 1961 was very much in field so was applicable in their case.
The above referred situation tallies on all fours to the case of Sardar (supra) entitling the legal heirs of pre-deceased son i.e. the two widows and the daughter i.e. the plaintiff according to their respective shari shares i.e. 1/8 to the two widows, 1/2 to the daughter (plaintiff) whereas the remaining would go to the son Sadiq alias Sadu as residuary, full brother.
Since the status of parties to the lis is admittedly of occupancy tenants under section 10(2) of the Act V of 1912 so their succession would no doubt be dealt with under section 19-A of the said Act.
Since the appellants and the second widow namely Mst. Aisha of pre-deceased son after depositing the requisite fee under the scheme have become full owners so the plaintiff and her mother namely Mst. Fatima, the first widow of pre-deceased -son, be also dealt with accordingly and the same principle was laid down in the case of Mst. Ghulam Bano alias Gulab Bano and others v. Mst. Noor Jehan and others (2005 SCMR 658)."
Further reliance is placed on the case of Manzoor Ahmad v. Mst. Salaman Bibi and others (1998 SCMR 388), which holds as under:- "When after the coming into force of Colonization of Governments is Lands (Punjab) Amendment Act, 1951, any Muslim Tenant dies, succession to the tenancy shall devolve on his heirs in accordance with the Muslim Personal Law (Shariat), and nothing contained in sections 20 to 30 of this Act shall be applicable to his case; "
We are of the opinion, however that the correct view has been taken in the cases 'referred to earlier, namely, that the nomination merely confers a right to collect the money or to "receive the money". It does not operate either as a gift or as a will and, therefore, cannot deprive the other heirs of the nominator who may be entitled thereto under the law of succession applicable to the deceased."
"As regards the status of the Member of the Society vis-a-vis the Government and the grant, it has to be noted that the proprietary interest had been conferred on Fazal Shah not by the Cooperative Society but by the State under the Colonization of Government Lands Act. Therefore, notwithstanding his Membership of the Society, it was ultimately to devolve as a State grant on a Member, Membership of the Society is a matter altogether different from succeeding to the estate of the deceased Daulat Shah. So far as the question of succession is concerned that stands resolved by the decision of this Court in Mst. Amtul Habib's case which has been followed by all the three Courts dealing with this case."
8. In view of the afore-referred dictum laid down by the Hon'ble Supreme Court the import of law of succession cannot be frustrated by the act or omission of a functionary of the State and the so-called allotment made in favour of Sher Muhammad predecessor-in-interest of the petitioner- defendant was void ab initio and cannot stand the test of judicial scrutiny. There is no mis- reading or non-reading of evidence to merit indulgence. The two concurrent findings of the learned Courts below do not reflect any jurisdictional defect to warrant interference in the revisional jurisdictional of this Court."
Reliance in this regard can also be placed upon the cases of Ali Muhammad v. Allah Ditta and others (1985 CLC 2817) and Province of Punjab through Collector Jhang, District Jhang v. Lal Khan (1993 CLC 2444).
14. The case law referred by the learned counsel for the petitioners, i.e. Mst. Noor Begum and 6 others v. Muhammad Akram and 17 others (2013 MLD 1323) has different facts and the principle laid down in the said citation is as such not applicable to the present proposition. There was no need to challenge the order of the District Collector dated 15.12.1952. Furthermore, the Civil Court was competent to see such issues where the matter of title is involved and the matter of inheritance is specifically agitated because the revenue authorities are not having jurisdiction to decide the matter of inheritance. Section 30 of the Act is regarding the correction of the allotment record which is not the subject matter of this proposition.
15. It is further noted that respondent No.1 was admittedly legal heir of deceased Hakim Ali and under Section 20 of the Colonization of Government Lands (Punjab) Act, 1912, the Collector has no discretion to grant proprietary rights to any other person in presence of the legal heirs, therefore, his order confirming the proprietary rights to Jalal Din K and sanctioning mutation No.26, was rightly declared null and void by the learned Courts below.
16. The Islamic law was also applicable in Bahawalpur State prior to 1948. The objection raised by the learned counsel for the petitioners regarding limitation is also not a valid ground in the matter of inheritance. Reliance in this regard is placed on the cases reported as Abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 SC 407) and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). It is settled rule that the limitation in inheritance cases would not run, especially when there is an evidence that the inheritance mutation was sanctioned by concealment or the other side had been compensating the legal heirs with the produce or in shape of money. Both the Courts have addressed every issue according to its merits. The legal heirs of deceased Hakim Ali were Jalal Din, Mst. Sharifan Bibi, Qasim Ali and Mst. Irshad Bibi and they would have inherited the land of deceased Hakim Ali as per their share. In the circumstances, the learned trial Court, while setting aside mutation No.26 (Exh.P.3) and subsequent mutations Nos.7 and 8 (Exh.P.6 and Exh.P.7) rightly kept mutation No.215 (Exh.P.5) intact to the extent of share of Jalal Din in favour of Mst. Sharifan Bibi.
17. Even otherwise, there is no cavil to the proposition that the jurisdiction of High Court under section 115, C.P.C. is narrower and that the concurrent findings of fact cannot be disturbed in revisional jurisdiction unless courts below while recording findings of fact had either misread the evidence or have ignored any material piece of evidence or those are perverse and reflect same jurisdictional error. Reliance in this regard is placed on the case of Noor Muhammad and others v.
Mst. Azmat-e-Bibi (2012 SCMR 1373).
18. Upshot of the above discussion is that the petitioners have failed to point any illegality in the judgments of both the Courts below, calling for interference in the revisional jurisdiction of this Court. The petition, therefore, fails and is accordingly dismissed with no order as to costs.