This regular second appeal under section 100 of the Code of Civil Procedure, is directed against the judgment and decree dated 4-3-1971 whereby the learned Addl. District Judge, Faislabad dismissed the appeal filed by the appellant and affirmed the judgment and decree passed by the learned Civil Judge, 1st Class, Toba Tek Singh dated 30-7-1969 decreeing the suit brought by respondent.
2. The undisputed relevant facts are: that one JaW Din the husband of Mst. Karim Begum was owner of agricultural land in India. He died before partition and agricultural land left by him was mutated there in favour of Mst. Karim Begum (herein respondent) as a limited owner. After partition, she came to Pakistan as a displaced person and secured the allotment of suit land in year 1953 vide RL-II No. 73/45. The allotment was made to her in lieu of land abandoned by Jalal Din in India. After the promulgation of West Pakistan Muslim Personal Law (Shariat Application) Act (V of 1962), the Assistant Collector II Grade attested the mutation of inheritance of JaW Din wherein it was held that after advent of Act V of 1962, the limited interest held by Mst. Karim Begum had come to an end and devolution was to take place in accordance with the rule of Muslim Personal Law. In result, mutation was attested whereby Mst. Karim Begum was mutated 1/4th share while the remaining land went to Feroze Din, the real brother of JaW Din. Feeling aggrieved from the above mutation, Mst, Karim Begum filed a suit for declaration to the effect that Mutation No. 142 was illegal, inoperative and of no lawful consequence upon her rights; that she was the sole owner of the suit land in her own rights.
3. ' Feroze Din, in written statement, contended that Mst. Karim Begum held the suit-land as a limited owner and with the advent of Ad V of 1962, she was to get 1/4th share in the suit-land as widow of late Jalal Din; that mutation of inheritance was correctly attested, in accordance with law.
After recording the evidence of the parties and after perusing the arguments of the learned counsel for the parties, the learned first Court held that Mst. Karim Begum had secured the allotment in her own name and in her own right; that she was the absolute owner of the suit land; that the Settlement Authorities had no jurisdiction whatsoever to attest the Mutation No. 142. On this conclusion, the learned first Court accepted the suit. On appeal , the learned first appellate Court came to the same conclusion in view of rule laid down in Sher Muhammad v. The Additional Rehabilitation Commissioner, and 7 others (PLD 1968 Lahore 234).
Learned counsel for the appellant, in support of this appeal, relied upon Addl. Settlement Commissioner v. Muhammad Shafi (PLD 1971 SC 791) to contend that the rule laid down in Sher Muhammad's case (supra) was set aside and it was held that after the termination of limited interest, the devolution, will take place in accordance with Muslim Law of Inheritance. On the strength of this argument, it was contended that the decisions of the two Courts below were clearly unwarranted by law and merited to be set aside.
5. Learned counsel for the respondent supported the impugned decision by relying upon the rule laid down in Sher Muhammad's case (supra). He, however, fairly submitted that the rule laid down in Sher Muhammad's case (supra) was not approved in Additional Settlement Commissioner v.
Muhammad Shafi (PLD 1971 SC 791).
6. I have heard the learned counsel for the parties at a considerable length. and I am persuaded to agree with the learned counsel for the appellant.
There is no dispute that Mst. Karim Begum had secured ;allotment in lieu of claim pertaining to agricultural land abandoned in India owned by Jalal Din; it is not disputed that Feroze Din is the real brother of late Jalal Din the last male owner. It is also not in dispute that name of Mst. Karim Begum was mutated in revenue record before partition as a limited owner. It is also not dispute that the limited interests were terminated under the Act V of 1962. In these circumstances, the two Courts below were in error in coming to conclusion that Mst. Karim Begum was absolute owner of the suit land. After the termination of her right, the Settlement Authorities had correctly attested mutation No. 142 in consonance with the Muslim Rules of Inheritance. This being the legal position, there is no option but to accept this appeal.
7. For the reasons stated above, this regular second appeal is hereby accepted. The judgments and decrees passed by the learned two Courts below dated 30-7-1969 and 4-3-1971 are hereby set aside. The suit lodged by Mst. Karim Begum is hereby dismissed. The Mutation No. 142 shall stand revived. The respondents shall bear the costs of proceedings throughout.