ASLAM RIAZ HUSSAIN, J.--This appeal by Mst. Hamida Begum and another, is directed against the order of the former High Court of West Pakistan, dated 1-7-1964, dismissed their Writ Petition (No. 1067/62), as far as the legal heirs of Hakam, are concerned.
It may be mentioned that Mst. Hamida Begum and Mst. Zubaida Begum had filed the aforementioned writ petition against 11 persons, including Hakam son of Boors (who was respondent No. 9 therein). The writ petition was dismissed in limine. Mst. Hamida and Mst. Zubaida Begum thereupon challenged the order of the High Court through a petition for leave to appeal against all the respondents. Leave was granted to the petitioner on 26-11-1964, whereupon notices were served on all the respondents except Hakam who could not be served. Ex parte proceedings were, therefore, ordered against him on 16-11-1968. The Appeal (No. 37/68) of Mst. Hamida Begum etc. Was thereafter allowed by this Court vide judgment, dated 27-3-1972.
About a month later, on 25-4-1972, twenty-four persons including the successors-in-interest of the aforementioned Hakam, applied for a review of the aforesaid judgment, dated 27-3-1972, allowing the appeal, on the ground that Hakam had died on 17-6-1971, i.e. Before the appeal was heard and that the judgment in appeal against a dead person was of no legal effect. By order, dated 8-5- 1972, the applicants were directed by this Court to file an application for setting aside the ex parte decree and judgment on the ground that Hakam respondent had died and his legal heirs had not been brought on the record, and were not heard. The successors-in-interest of Hakam accordingly, filed an application for setting aside the ex parte judgment. The Review Petition (No. 106/77) was ordered to be heard alongwith that application. The Court heard both the matters and allowed the same only with respect to the heirs of Hakam vide order, dated 27-11-1979 (which is reported in 1980 SCMR 531). The relevant portion reads as follows:- "------.Therefore, an eminently just and proper order in the circumstances, is to allow their application for review of judgment in Civil Appeal No. 37/68 and to re-decide it after hearing it in the presence of the petitioners. Order is accordingly. Necessary correction shall be made in the record. Their other application (C.M. 106/72) is also allowed consequently. It is made clear that such a re-opening of the hearing in this Civil Appeal is not for the benefit of the other nineteen petitioners who have joined in the review petition filed by the heirs of Hakim Ali because we find that they or their predecessor-in-interest were fully informed of the proceedings pending before the Custodian and its nature and took the land subject to result of that adjudication and at no earlier stage evinced any interest in the proceedings in spite of having knowledge of it." PLD 1980 SC 540.
2. Civil Appeal No. 37/68 is, therefore, being re-heard by this Court in accordance with the aforementioned order only with respect to the interest of the successors-in-interest of Hakim Ali.
3.The facts giving rise to the appeal, briefly stated, are that Mst. Iqbal Begum mother of Mst.
Hamida Begum owned some land in Chak No. 28/J.B. Tehsil and District Lyallpur (now Faisalabad).
She sold a part of the land to Karam Singh (Jat) on 14-6-1946 and the remaining to Sadhu Singh
(Jat) on 13-11-1946. The mutations were entered in the revenue record giving effect to the same but were rejected by the Revenue authorities on the ground that Mst. Lqbal Begum being a 'Mazhabi Sikh' had been declared as belonging to an 'agricultural tribe' through notification under section 3 of the Punjab Alienation of the Lands Act, 1900, she could not, therefore, alienate the land in question to the member of another agricultural tribe (Jats in this case) without prior permission of the Deputy Commissioner, under subsection (2) of section 3 of the said Act. For proper understanding of this objection it would be useful to reproduce section 3 of the Punjab Alienation of Lands Act:- "(3) Sanction of Deputy Commissioner required to certain permanent alienation.-(1) Save as hereinafter provided a person who desires to make a permanent alienation of his land shall be at liberty to make such alienation where:-
(a) the alienor is not a member of an agricultural tribe, or
(b) the alienor is a member of an agricultural tribe and the alienee is a member of the same tribe or of a tribe in the same group.
(2) Except in the cases provided shall for under subsection (1) a permanent alienation of land not take effect as such unless and until sanction is given thereto by a Deputy Commissioner:- Provided that-
(1) sanction may be given after the at of alienation is otherwise completed; and
(2) sanction shall not be necessary in the case of:-
(a) sale of a right of occupancy by a tenant to his landlord, or
(b) a gift made in good faith for a religious or charitably purpose, whether intra vovas or by will; (3)The Deputy Commissioner shall inquire into the circumstances of the alienation and shall have discretion to grant or refuse the sanction required by subsection (2)."
4. Since the land in question had, in the meanwhile, been treated as Evacuee Property and allotted to certain persons in lieu of the claims, the Deputy Custodian of Evacuee Property, filed an appeal against, this order which was accepted by the Settlement Commissioner on 17-4-1950 to whom the matter had been forwarded for disposal by the Collector, on the condition that Mst. Iqbal Begum shall apply for sanction of the same to the Deputy Commissioner. The latter, however, refused to grant the sanction on the ground that Mst. Iqbal Begum being a Mazhabi Sikh had been declared as belonging to agricultural tribe (Group-B) through Notification No. 2449-R (Punjab Gazette, dated 25-12-1925), (same position emerged from Notification No. 129, dated 26-9-1911).
5. The result of the refusal to grant sanction was that the sale of land by Mst. Lqbal Begum to Karam Singh and Sadhu Singh (fats), was treated by the Revenue authorities as void, the land in question continued to be the property of Mst. Iqbal Begum, etc. And for this reason it could not be deemed to have become evacuee property. Mst. Iqbal Begum, etc. Thereafter, applied to the Assistant Custodian, under section 22 of the Pakistan (Administration of Evacuee Property) Act (XII) of 1957, for a declaration that the property in dispute was not evacuee property. The Assistant Custodian dismissed her application by order, dated 22-4-1960. Her appeal was dismissed by the Additional Custodian of Evacuee Property. She then filed a revision petition before the Custodian of Evacuee Property which met the same fate.
6. Feeling aggrieved she challenged the aforementioned order of the Custodian through a writ petition before the High Court in which she impleaded Hakam Ali and other allottees of the land in question as respondents.
The writ petition was dismissed vide the impugned judgment. The relevant observation of the High Court reads as follows:- "Admittedly Mst. Iqbal Begum had embraced Islam before she sold the land in dispute under the to sale-deeds to the evacuee respondents. By the very fact of her conversion to Islam she ceased to be a 'Mazhabi Sikh' (sic) were notified as members of agricultural tribe under section 4 of the Punjab Alienation of Land Act, 1900, by reason of the fact that they belonged to that religious sect and not by reason of any caste to which they originally belonged before their conversion to Sikhism. We are inclined to agree with the order of the learned Custodian, Evacuee Property, dated the 6th July, 1962, in holding that Mst. Lqbal Begum ceased to be a Mazhabi Sikh, and thereby, also ceased to be a member of the notified agricultural tribe. The to sale-deeds cannot be avoided on this ground."
7. The appellants challenged this decision before the Supreme Court and leave was granted to them to consider and whether or not by changing her religion Mst. Lqbal Begum had ceased to be a member of a "notified tribe." The appeal was finally heard and allowed by a Full Bench of this Court on 27-3-1970. It was held that by adopting Islam as her religion she did not lose her status as member of a notified tribe. The result was that the sale by Mst. Iqbal Begum to the to Jats became void; the land in question ceased to be evacuee property and the respondents who were allottees of the said land were deprived of the same.
8. It is against this order that the successors-in-interest of Hakam Ali filed review petition as also an application for setting aside the ex parte judgment on the ground that Hakam Ali had not been served with a notice and was not, therefore, able to press his case before this Court. As already observed the said application was allowed and the case has come up for rehearing only as-far the successors-in-interest of Hakam Ali are concerned.
9. The learned counsel for the appellant urged before us that Mazhabi Sikhs who usually known as Churas (sweepers), had been included amongst agricultural tribes only by virtue of their religion and as such Mst. Iqbal Begum, who was admittedly a Mazhabi Sikh became a Muslim she was no longer a Mazhabi Sikh and, consequently, did not remain a member of the agricultural tribe and could, therefore, sell the land in question without the sanction of the Deputy Commissioner required by section 3(2) of the Punjab Alienation of Lands Act.
10. On the other hand learned counsel for Mst. Iqbal Begum urged that mere conversion to Islam did not alter the caste of a Hindoo or Sikh. For this contention he relied on Ghulam Ahmad v.
Ghulam Farid and another AIR 1933 Lah. 844. In that case a family of Mohyal Brahmins had converted to Islam. Subsequently a notification was issued whereby all persons belonging to Mohyal Brahmins Tribe were declared to be members of agricultural tribe. The matter was contested before the High Court on the ground that after conversion to Islam they had lost their status as Mohyal Brahmins. It was, however, held that their conversion to Islam did not make any difference as far as their caste was concerned caste still remained Mohyal Brahmin and as such they continued to be members of agricultural tribe by virtue of the notification issued to that effect.
11. It may be mentioned that the same pleas had been raised by the counsel for the parties before this Court earlier, when this Appeal (No. 37/68) was heard with respect to the other respondents and the last mentioned plea put forward by the learned counsel for Mst. Lqbal Begum, etc. Had found favour with the Court which allowed the appeal in the following words:- "A perusal of the notification would show it is tribe of Mazhabi Sikhs who were declared to be agriculturist. Admittedly Mist. Iqbal Begum was a member of the tribe of Mazhabi Sikh and she was member of the agricultural tribe. In these circumstances the to sales made by her would not be valid unless and until they were sent to the Deputy Commissioner under section 3 of the Punjab Alienation of Lands Act."
12. We have carefully reconsidered the matter. Nothing has been urged by the learned counsel for Hakam Ali to persuade us to change our mind and take a different view than the one already taken by this Court in its judgment, dated 27-3-1970.
13. Learned counsel for Hakam Ali contended next that the Custodian of Evacuee Property has the exclusive jurisdiction to declare as to whether or not any land was evacuee property and as such no Court could take a view other than the expressed by the Custodian Evacuee Property. For this proposition he relied on Mian Muhammad Saeed and another v. Province of West Pakistan and others PLD 1964 SC 372.
14. We are afraid this is an altogether a new plea. Hakam Ali was duly represented before the High Court when the appellant's writ petition was argued but this contention had not been urged on his behalf at that occasion. We cannot therefore, find any flaw in the impugned judgment of the High Court on this score. Moreover, this Court being a Court of ultimate jurisdiction, has the power to give an authoritative pronouncement on any question of law including the one involved in this case, namely as to whether or not a person having been declared as a member of an agricultural tribe through a notification under section 3(1) of the Punjab Alienation of Lands Act, would cease to be a member of an agricultural tribe.
In view of the above discussion we find ourselves in respectful agreement with the view taken by a Full Bench of this Court earlier in its order, dated 27-3-1970, while hearing the same appeal against the co-respondents. Consequently, the appeal is accepted. The parties shall bear their own costs.