This Regular Second Appeal arises from the judgment/decree dated the 29th of February, 1972, passed by the learned Add]. District Judge, Sahiwal, whereby the appellant-plaintiff's first appeal was dismissed.
2. The land in question belonged to one Bahadur who died in Pakistan in 1949. On his demise it was mutated on the 15th of September, 1956, to the extent of 1/4th in favour of the appellant Mst. Almay as his widow and the remaining 3/4th to the respondent Mst. Hashmat Bibi as his sister. Later, the mutation was reviewed on the 16th of February, 1957, whereby the appellant's share as widow was reduced from 1/4th to 1/6th. She challenged the same through the present suit filed on the 28th of October, 1970, maintaining that under the law of inheritance her share as widow could not have been reduced as the propositus died issueless. The respondent challenged the maintainability of the suit on the grounds of limitation as also want of jurisdiction. She observed that mutation attested on the 16th of February, 1957, could not have been called in question as late as the 28th of October, 1970, when the suit was instituted. Likewise, she contended that the relevant orders determining inheritance of the deceased Bahadur were passed by the Settlement Authorities in their exclusive jurisdiction and section 25 of the Displaced Persons (Land Settlement) Act, 1958 excluded the jurisdiction of Civil Courts to dispute their correctness.
3, Appropriate issues were framed on these pleadings. The Courts below concurrently held that the suit was barred by time and that they lacked jurisdiction.
4. Mr. Izharul Haque, Advocate for the appellant submitted that review of the mutation was made against the provisions of section 15(1)(c) of the Land Revenue Act, 1887, inasmuch as she was not given a notice thereabout. He urged that any act done by any Authority in the purported exercise of exclusive jurisdiction will be open to judicial scrutiny if the relevant law or the rules were not followed. Next, almost on the same line his objection was that widow's share could not be reduced from 1/4th to 1/6th in case her husband died issueless. The opposite counsel contended that the above-mentioned illegalities would not confer jurisdiction on the Civil Court because the suit was basically barred by time. He tried to demonstrate that the two orders were passed under the Displaced Persons (Land Settlement) Act, 1.958, read with the relevant Scheme and that the Civil Court could not question. Their vires.
5. The point of limitation arising from the date of mutation was considered in various cases e.g., Mst. Wazir Begum and others v. Mst. Noor Jehan Begum and others (PLD 1961 (W.P:) Kar. 165), and Shamas-ud-Din v. Mst. Jewan and others (PLJ 1985 Lah. 1). The most striking of them was the Mst.
Wazir Begum and others case where a mutation attested in 1918 was challenged in a suit brought in 1955. The genesis for allowing such a suit so late was that ordinarily there was no ouster of a co- sharer, as any of them is to occupy for and on behalf of all other co-sharers. The parties, here, were heirs of the propositus, namely, widow and sister so that possession of one in that capacity would be deemed to be possession also on behalf of the other. In terms of the decision referred to above, the present suit was not barred by time. Muhammad Akbar Shah v. Muhammad Yusuf Shah and others (PLD 1964 SC 329) was referred to by learned counsel for the respondent to show that Article 120 of the Limitation Act applied for which terminus a quo was the order of the mutation. I do not think this case was in point because a will in favour of a non-heir was being set up. The parties were not co-sharers and, therefore, possession of one was not held to be on behalf of others. Next, Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762) was cited to show that limitation as provided in Articles 14 or 120 ibid. Applied and that the terminus a quo was the date of mutation. It was claimed that the said case related to inheritance and though the parties were the deceased's heirs, yet the limitation of six years from the date of mutation was applied and the suit was held barred by time. Although apparently this authority helps the respondent to substantiate her objection of limitation, yet the latest law from the Supreme Court itself may be. Found in Mst.
Zarifan v. Mst. Rehmati (1987 SCMR 66). The rule is to apply the latest enunciation rendered by the Supreme Court. There will be no question of limitation because of possession of a co-sharer.
6. The objection to the jurisdiction was vehemently pressed plaeing reliance upon Mst. Zainab v.
Mst. Raji (PLD 1960 SC (Pak.) 229), Ahmad Din v. Muhammad Shafi anti others (PLD 1971 SC 762), Mst. Ghulam Fatima v. Muhammad Hussain and others (PLD 1976 SC 729), Mst. Maryam Bibi and others v. Mst. Mumtaz Begum and others (1981 SCMR 208) contending mainly that until the allotment was confirmed the jurisdiction of the Civil Court was excluded. I am afraid the facts of the above Mst. Ghulam Fatima's case are greatly similar to those of the case in hand. There too, the right-holder had come in Pakistan, got the land, died here and the dispute in regard to his inheritance arose. It was held that after his demise here the ordinary law would apply. In the present case Bahadur admittedly died in Pakistan after getting the land. The contention that such allotments were not confirmed till the 17th of December, 1964, was not tenable as the facts of Mst.
Ghulam Fatima's case showed that the allotment there was confirmed as early as 1953. There was no indication from the present record that Bahadur's allotment was not confirmed till his death. The impression rather is that it had been confirmed and that is why his heirs stepped into his shoes to claim it. None was shown to be rivally claiming the land transferred to him and this was yet another pointer of its confirmation in his favour. The argument that paras. 46 or 67 of the Rehabilitation Scheme applied to oust jurisdiction is no more obtaining. Further, there was no objection in the written statement to this effect although later the learned District Judge in appeal allowed to introduce this question.
7. Last but not the least was the plea that the R.S.A. Was barred by time. The time was calculated by the Office. It was filed during vacation after allowing eighty-one days to pass by. Even though the Registry was open during vacation, section 4 of the Limitation Act provides for exclusion of the time when the Court remains closed. The, appellant was directed to remove the objection and she removed the same on the very day, that is the 4th of September, 1972. She took no time much less inordinate to be hit by limitation.
8. The review of the mutation on the 16th February, 1957, was not sustainable in that no notice as contemplated in section 15 (1) (c) of the Land Revenue Act, 1887, was observed. Nor was it shown as to how the widow's share could be reduced from 1/4th to 1/6th. The appellant's claim in this behalf is unassailable.
9. As a result, the R.S.A. Is accepted, the impugned judgment/decree are set aside and instead the appellant-plaintiffs suit is decreed. Parties are left to bear their own costs.
H.B.T./A-717/L