' Mst. Sughri, widow of Kale Khan, in the wake of communal disturbances at the time of partition of the sub-continent of India was uprooted from her permanent abode village Khoh Tehsil Ramgarh Alwar State and forced to seek refuge in Pakistan. Unfortunately, while on her way to the new State, she breathed her last. She held some land in village Khoh (India), as limited estate-holder after the demise of her late husband Kale Khan, on the usual customary tenure. In Pakistan, claim for verification of her land, was filed by Mst.Hassan Bi claiming to be the real daughter of Mst. Sughri and Kale Khan both. After usual formalities the claim was verified for the land left behind by Mst.
Sughri, deceased. Claim verified for the land of Mst. Sughri served as a prelude to the real trouble between the claimants scrambling for share in the estate left by her. Mutation No.28 entered to determine the heirs was in the first instance rejected on 30-12-1953. Reason assigned was that there was no adequate proof available showing Mamola, Imam Khan etc. to be the reversioners.
Subsequently, however, mutation of inheritance was sanctioned in favour of said Mamola, Imam, Badlu sons of Ujagar (half share), Sufaida son of Ghania, the other half, on 11-10-1954. Mst. Hassan Bi daughter of Mst. Sughri was, elbowed out by collaterals. She preferred an appeal against order dated 11-10-1954 before Deputy Settlement Commissioner (Lands), which was accepted on 2-10- 1958 and the case was remanded. Sufaida son of Ghania was excluded from the field, being a remoter reversioner. Order of remand was questioned in the Court of Ch.Muhammad Shafi Zafar, learned Additional Commissioner (Revenue) with powers of Settlement and Rehabilitation Commissioner, Lahore. Mst. Hassan Bi was found to be the daughter of Mst. Sughri from Kale Khan, by learned Additional Commissioner (Revenue)/S&RC. It is stated that this order was not challenged further and thus attained finality under law. In post-remand, mutation of inheritance was sanctioned 5/8 share to Mst. Hassan Bi (1 share as daughter of late Kale Khan 1/8 share as daughter of Mst. Sughri, deceased), and the remaining 3/8 share was allocated to respondents collaterals namely Mamola, Imam Khan, Badlu sons of Ujagar Khan by A.R.C. This order was passed on 6-10-1969 after full and thorough probe. Both the parties, went up in appeal, against the order, before Deputy Settlement Commissioner (Lands) Lahore. Both the appeals were allowed, Mst.
Hassan Bi's appeal on the strength of PLD 1968 Lah. 234 and the other for fulfilling the requirements of section 42 of the Punjab Land Revenue Act, 1967. Mst. Hassan Bibi challenged the order of remand before the Rehabilitation Commissioner. She however died during the pendency of her appeal. Her place was taken up by Mst. Attri, her daughter who continued with the appeal. Remand order, however, remained intact, and was not interfered with by the Rehabilitation Commissioner.
This time, inheritance mutation, was decided by the Assistant Collector/ASC, Lahore Camp at Julkey entirely in favour of Mst. Attri, to the exclusion of the collaterals vide order dated 27-8-1971.
Mst. Sughri on the basis of pronouncement in case Sher Muhammad v. The Additional Rehabilitation Commissioner, Multan and 7 others PLD 1968 Lah. 234, was treated as full owner and not limited owner as heretofore found by the officers dealing with inheritance mutation. Now it was the turn of respondents to challenge the order in appeal. Consequently they appealed to Assistant Commissioner/ Deputy Settlement Commissioner (Lands). Meanwhile, judgment of the Honourable High Court, Lahore PLD 1968 Lah. 234 was reversed by the august Supreme Court of Pakistan in case Additional Settlement Commissioner (Lands), Sargodha v. Muhammad Shafi and others PLD 1971 SC 791, with this change in law the case was again remanded for redecision vide order dated 31-1-1972. Scope of fresh probe was restricted to find whether Mst. Sughri was limited estate-holder and further whether Imam Khan and others were related to bale Khan last male-holder and as such were entitled to claim a share in his estate. Assistant Collector Grade-II/ARC is stated to have referred the case to Assistant Commissioner/Collector seeking certain clarifications through an interim order dated 4-11-1972. Latter Court ultimately decided to hear the matter in revision and the case was again remanded vide order dated 2-2-1973. For the purposes of elucidation, the order dated 2-2-1973 is reproduced:- "This is a revision petition against the order dated 29-8-1972 passed by the learned Collector/A.C./DSC(L), Lahore, whereby he remanded the case to A.C.II for taking evidence from both the parties.
2. The learned Collector/DSC(L) had passed the following order:- " It has been clearly observed in the said order that Mst. Hassan Bi was the daughter of Mst. Sughri.
The learned counsel for the appellant concedes to this point but he wants to contest the relationship of Mst. Hassan Bi with Kale Khan. He has pointed out that Mst. Hasanbi was the daughter of Mst. Sughri but she is not the daughter of Kale Khan. He wants to lead evidence before the learned A.C.II on this point. In the circumstances I am of the view that this point needs clarification and be decided by the learned A.C.II for taking evidence from both the parties."
(3) The learned counsel for the petitioner contends that it has been established beyond any reasonable doubt vide mutation order dated 6-10-1969 passed by the A.C.II that Mst. Hassanbi was the daughter of Kale Khan and Mst. Sughri. The learned Collector should, therefore, not have opened this issue afresh in the impugned order.
(4) The learned counsel for the respondents contends that under the overruled ruling the widow was the full owner of the property left by the deceased refugee husband. At that time on the death of a widow the property was to devolve on the heirs of the widow and not on the heirs of the husband. However, the Honourable Supreme Court have held in the year 1971 that the property shall devolve on the heirs of the deceased husband. In the instant case Mst. Sughri was the limited owner and on her death the property now shall devolve on the heirs of Kale Khan deceased. The Revenue Officer is, therefore, duty-bound to ascertain the heirs of Kale Khan deceased. The learned Collector has now rightly referred the matter to the A.C.II by the impugned order to ascertain the heirs of Kale Khan deceased. No evidence has so far been led on this point. The enquiry is to be conducted on this point as to the heirs of Kale Khan. In the instant case, the present petitioner has led evidence to establish that Mst. Attri is the grand-daughter of Mst. Hassan Bi. The petitioner has riot so far established that Mst. Hassan was born out of the wedlock of Kale Khan and Mst. Sughri.
The enquiry has, therefore, to be held, on this issue.
(5) I have carefully considered the arguments advanced by the counsel for the parties and have also examined the record.
(6) The learned Collector/DSC(L) (Ch. Nazir Ahmad, P.C.S.) had passed the following order on 3-1- 1972:- "Hence I accept this appeal, set aside the order of the learned A.C.II and remand hack the case for a fresh decision in the light of the Supreme Court Ruling and after deciding as to whether Mst.
Sughri was a limited owner or full owner. Moreover, he should also look into the question as to whether the appellants were related to the deceased husband of Mst. Sughri or not .......
' It is evident that the learned Collector had directed the learned A.C.II to look into the entire facts of this case afresh and the same issue was again clarified in the impugned order. The case of the petitioner will not be harmed if the entire case is examined afresh in accordance with the directive of the learned Collector.
(7) For the reasons mentioned above, I find no force in the revision petition and it is hereby rejected."
' Assistant Rehabilitation Commissioner decided the mutation of inheritance giving 5/8th share to Mst. Attri, Writ petitioner and the remaining 3/8th share to Imam Khan and others, the reversioners of Kale Khan on 22-8-1974. Mamola, Badlu and Imam Khan, collaterals, on 14-4-1975 filed Settlement Revision No.62 of 1975 before Malik Jehangir Khan, Additional Commissioner (Revenue)/Settlement Commissioner (Lands), Lahore with powers of Chief Settlement Commissioner. Vide order dated 14-7-1975, the said Officer entrusted the Settlement Revision to ADC(C)/Additional Settlement Commissioner (Lands) Lahore, for disposal in accordance with law.
It is a brief order which reads:- "1, Malik Jahangir Khan, Additional Commissioner (Revenue)/ Settlement Commissioner (Lands), Lahore Division, Lahore, in exercise of the powers under section 19(3) of the repealed Displaced Persons (Land Settlement) Act, 1958, as amended by the Evacuee Property and Displaced Persons Law (Amendment) Act, 1973, Act LV of 1973, do hereby entrust the above-cited Settlement Revision to the learned A.D.C(C)/Addl.Settlement Commissioner(L), Lahore for disposal in accordance with law."
2. It may be added that this provision of law stands protected under the General Clauses Act, in spite of the promulgation of Ordinance XV of 1974. Such an order passed by the Additional Settlement Commissioner (Lands) shall be deemed to be an order of a Settlement Commissioner passed in Revision and shall have force and effect accordingly. If during the proceedings, the learned ADC(C)/Addl.SC(L) reaches the conclusion that the case was not to be dealt with on Settlement side, he may consider this petition as a regular appeal against the order of the AC.I. and decide it on its merits. The parties are directed to appear before him on 11-8-1975." Assistant Commissioner (Saddar)/Deputy Settlement Commissioner (Lands), Lahore vide order dated 18-3- 1976 once again reopened the matter on the ground that the mutation dated 22-8-1974 was decided by Assistant Collector Grade-II and not A.R.C., therefore, remitted the same to the A.R.C. to redetermine the matter. Mst. Attri, aggrieved filed a revision before Additional Commissioner (Revenue), Lahore Division, Incharge Consolidation, Settlement and Rehabilitation. This learned Officer refused to interfere on the ground that the Court lacked jurisdiction to hear revision preferred after 30-6-2975, petition for revision thus was dismissed. Mst. Attri, in the background of this long drawn out agonizing controversy spreading over a period of more than 23 yeavrs relating to inheritance mutation only, came to High Court in its constitutional jurisdiction with prayer that order dated 18-3-1976 be struck down and further be declared to have been made without lawful authority as the same was passed after Repeal of Evacuee Laws w.e.f. 1-7-1974. Honourable Mr.Justice Nasim Hasan Shah, now a Judge of Supreme Court of Pakistan admitted the Writ petition on 25-1-1977 with the following order:- "25-1-1977. Ch.Azim-ud-Din, Advocate.
' The contention that the order of the A.C.II, dated 22-8-1974 was not open to appeal on account of the repeal of the Evacuee Laws w.e.f. 1-7-1974, requires further consideration.
(2) Admit. Notice.
(3) Meanwhile, the operation of the order, dated 18-3-1976 passed by the Assistant Commissioner (Saddar)/Deputy Settlement Commissioner(L) Lahore shall remain suspended."
2. I have heard learned counsel for the parties at length and examined the relevant material.
Learned counsel for Mst. Attri, Writ petitioner contended that the mutation proceedings are summary in nature and did not at all determine/decide the question of title finally between the parties. Title was a matter to be adjudicated upon by the Civil Court in a properly constituted civil suit. He also submitted that Mst. Sughri widow of deceased Kale Khan was holding the land in India in the capacity of a limited estate-holder and in accordance with provisions of para. 46/46-A of the Rehabilitation Re-Settlement Scheme, on the termination of her limited interests, she would inherit 1/8th share as widow of Kale Khan, Mst. Hassan Hi his daughter 1/2, and the remaining share will go to the reversioners. Thus, calculated Mst. Attri will inherit 5/8th share in the estate left by Kale Khan. Competent functionary rightly/correctly allowed her this share. Further submitted, that order date 22-8-1974 was passed by Revenue Officer who also enjoyed the powers of A.R.C. at the relevant time, therefore, after the repeal of Evacuee Laws w.e.f. 1-7-1974 order dated 22-8-1974 was not open to any appeal or revision. In the new dispensation it was a final order unamenable to appellate/revisional jurisdiction. Relied upon Mst. Asghri Khanum v. Settlement and Rehabilitation Commissioner and others PLD 1982 Lah. 569; Mst. Noori Begum v. Mahmood Ahmad Khan and others 1982 CLC 2500; Mst. Anwar Bai v. Deputy Settlement Commissioner, Karachi PLD 1979 Kar.
706 and Muhammad Ashraf etc. v. Muhammad Sarwar etc. PLD 1978 Lah.
1247.
3. Learned counsel for the respondents, however has contended, that, apart from question of law, matter in dispute pertains to the domain of factual inquiry which in the absence of evidence cannot be resolved in constitutional jurisdiction. There was no evidence to show that Mst. Hassan Bi was daughter of Kale Khan and this being a disputed question of fact cannot be properly and adequately resolved in extra-ordinary jurisdiction of this Court. He also submitted that right of appeal/revision being a valuable right conferred by the statute still subsisted even after the Evacuee Laws were repealed. Right to file an appeal/revision has neither been taken away expressly nor through a necessary intendment. Remand, therefore, has rightly been ordered to decide the disputed controversy. He also relied upon effects of repeal enacted in section 6 of the General Clauses Act to contend that effect of repeal was not to deprive the respondents of their right to agitate the matter in appeal/revision which right existed at the time . the lis started.
Respondents have filed written statement also.
4. Several laws dealings with Evacuee Property were repealed with the enforcement of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 w.e.f..1-7-1974. Vide section 1(2) of Act XIV of 1975, upon repeal of the Acts listed in section 2, all proceedings which immediately before the repeal were pending before the authorities functioning under the above-noted Acts, stood transferred for final disposal to the Officers notified by Government of the Punjab. The proceedings transferred, or remanded by the superior Courts were to be decided by the notified Officers in accordance with provisions of repealed enactments. A look at the repealing Act shows that no right of appeal or revision, was made available under the new Act. The order passed attained finality subject to the supervisory jurisdiction of the High Court in its constitutional jurisdiction.
Repealing Act only saved pending proceedings at the time of repeal. A close reading of the provisions of Act XIV of 1975 leads to only an irresistible conclusion that order made by the Notified Officer, could not be further subjected to appeal/revision as the forums provided to hear such appeals or revisions had been abolished. In the case of Mst. Asghari Khanum PLD 1982 Lah. 569 (Rawalpindi Bench) a learned Single Judge of this Court after a thorough survey of the provisions of the repealing Act and the precedent case law, in paras. 11 and 12 of the judgment observed:- "11. It appears that the Evacuee Property and Displaced Persons Laws (Repeal) Act was designed to finalise things on the departmental side. This is evident from the word 'final' used in subsection (2) of section 2 of the said Act. According to this provision, if any proceeding pending before the Deputy Settlement Commissioner is decided by the Officer notified in this behalf the order of the said Officer cannot be called in question before the Officer who is notified to dispose of matters pending before Settlement Commissioners at the time of the repeal of the Displaced Persons (Compensation and Rehabilitation) Act. It would, therefore, follow that if in the present case the order of the Deputy Settlement Commissioner is treated as final order on the departmental side, it would be in consonance with the scheme of the Evacuee Property and Displaced Persons Laws (Repeal) Act. The respondents, who have lost before the Deputy Settlement Commissioner, are, therefore, not in a disadvantageous position as compared to those who were involved in proceedings pending before the Deputy Settlement Commissioners at the time of coming into force of the Evacuee Property and Displaced Persons Laws (Repeal) Act.
12. This brings me to the argument of learned counsel for the respondents that the revision petition involved in the instant case may be treated as a pending proceeding for the purpose of subsection
(2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act. Pending proceeding means a proceeding which is being heard, tried or considered by any authority but if any proceeding is yet to be taken to the authority it cannot be called a pending proceeding. The revision petition in question has not been filed before the repeal of the Displaced Persons (Compensation and Rehabilitation) Act. It is, therefore, not a pending proceeding within the meaning of subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act."
' In para. 3 of the written statement filed by the respondents, the averments made in para. 3 of the writ petition were admitted. There is no dispute, therefore, the mutation was not decided by this Assistant Collector who had also the powers of A.R.C. This was the sole point on which interference was made with impugned order dated 2-8-1974. Assuming that the impugned order was made by Assistant Collector Grade-II, in the capacity of a Revenue Officer under the provisions of Punjab Land Revenue Act, 1967, its appeal lay to Collector under section 161 of the Land Revenue Act, 1967 and not to the Additional Commissioner directly. No doubt, the Additional Commissioner had powers of revision under section 164 of the Punjab Land Revenue Act but then instead of exercising his powers of revision, and deciding the controversy, he entrusted the Settlement revision to A.D.C.
(C)/ Additional Settlement Commissioner (Lands) Lahore. It was also observed by him in his order dated 14-7-1975 that in case the transferee Officer came to the conclusion that the matter in dispute was not to be dealt with on Settlement side, the petition may be treated as a regular appeal against the order of Assistant Collector. However, the Assistant Commissioner,(Saddar), interfered and remanded the case to the A.R.C.(Lahore). From the pleading of the parties, it is absolutely clear that the remitted mutation of inheritance was decided by the A.R.C. and there was no dispute about it. This mutation unfortunately had a long chequered history and was made a shuttle cock between various Revenue Officers during these years. As the mutation of inheritance relating to the estate of Mst. Sughri had been decided by a competent Officer on 22-8-1974, no appeal or revision, was available under Act XIV of 1975. Any interference with the order, thereafter, was not justified in the hierarchy provided under the Settlement Laws. Enough time has already been spent in an attempt to resolve this short controversy. It must now come to an end. Neither the facts were complicated nor the law applicable. Still, more than two decades have already passed and still the parties are in the whirlpool of litigation. I have arrived at a firm conclusion that order dated 22-8-1974, could not be subjected to appeal or revision. Therefore, order dated 18-3-1976 passed by A .C(S)/Deputy Settlement Commissioner (Lands), Lahore interfering with order dated 22-8-1974 passed on inheritance mutation No.28 was without competence and without jurisdiction also. Writ is allowed, order dated 18-3-1976 is set aside and declared to be without lawful authority.
This leaves order dated 22-8-1974 intact and operative in the field. Parties however, are directed to bear their own costs.