' The dispute in this case relates to the inheritance of Hakim Mehmood All Khan. Petitioner No, 1 is his full brother while petitioner No, 2 is his mother. Gut of the non-official respondents, respondent No, 2 is the widow of Hakim Mehmood Ali Klan. Respondents Nos. 3 and 4 are her son and daughter from another husband, namely Major Ghulam Rashid, They have been impleaded in their capacity as transferees by gift from respondent No, 2, of some of the property obtained by her in Pakistan in lieu of the property of Hakim Mahboob All Khan left in India. Respondents Nos. 5 to 71 have also been impleaded as transferees of a portion of the same property.
2. Hakim Mehmood Ali Khan died in Patiala (East Punjab) in the year 1942. He was owner of considerable agricultural land which was mutated in the name of respondent No, 2 as his widow.
On the partition of the sub-continent she migrated to Pakistan. She filed two claim forms bearing Nos. 6231 and 6232 under the Punjab Refugee (Registration of Land Claims) Act V of 1949 for the property of her ex-husband which were verified in her name. She was allotted land in lieu of the land of her ex-husband in villages Sambla, Authwal, Sanopar and Uppalsansi of Tehsil and District Gujranwala. In 1953 she remarried Major Ghulam Rashid in Pakistan and respondents Nos. 3 and 4 are her son and daughter from this marriage. The life interest of Inter alia the widows was terminated by the West Pakistan (Shariat Application) Act, 1962 with effect from 31st of December of that year. Respondent No, 2 transferred several years after this termination of her limited interest, lands in village Sambla, Sanopar and Authwal to her son and daughter from the second husband (i,e, respondents Nos. 3 and 4) in the ratio of 2/3rd and 1/3rd by mutations Nos. 723 and 33 and 55 respectively. The gift in Authwal was mutated on 23-7-1967, while the mutations of gift in the two other villages were sanctioned on 19-5-1969. By a registered deed dated 17th of January, 1970 she alienated the area in village Uppal Sand in the name of respondents Nos. 5 to 71. Its mutation No, 123 was sanctioned on 14-2-1970. In this manner she alienated a total area of 4372 kanals, although as will be seen later, her interest in the area alienated did not mood 1/4th share which amounted to 1093 kanals only.
3. A dispute was raised by one Peer Muhammad Shah of Lahore in the year 1960 that respondent No, 2 having remarried had lost her widow's interest in the property of her ex-husband and remained entitled to retain out of the allotted area only a quarter share. He claimed that the balance three quarters should be allotted to others. On the 7th of June, 1970 the Extra Assistant Commissioner (R), Gujranwsla submitted a report to Mr. M. Y. Khand, Settlement & Rehabilitation Commissioner about this plea of Peer Muhammad. He stated that the plea of Peer Muhammad was that petitioner No, 1, brother of deceased Mehmood All Kban being in India allotment of property for his benefit could not be sustained. Respondent No, 2, however, represented that she was full owner of this property from 1942. It was reported that since the land was accorded in her name in the special Jamabandl, it would not be advisable to reopen this case unless an objection is raised by a reversioner. As such the land may be continued to be recorded in her name, Mr. M. Y.
Khand ordered Peer Muhammad's application to be filed on the ground that respondent No, 2 had inherited the property much before partition as a full owner. This order was passed on 3-7-1960.
4. The same question was again raised consolidation proceedings of the above villages. The Consolidation Officer held on 29-12-1961 that respondent No, 2 was entitled to only 1/4th share of the property standing in her name and the balance 3/4th share was liable to forfeiture in favour of the Government. He sought permission of the Collector to review the mutation. The respondent No, 2 filed an appeal against this order. By the time the appellate order was passed, the permission to review had already been granted. The Collector dismissed the appeal as infructuous on the 28th of June, 1962. Respondent No, 2, went up in revision before Ch. All Ahmed, Additional Commissioner (Cons.), Lahore who by his order dated 29-9-1962 (Annexure P. 1) reversed the order of the Assistant Consolidation Officer on the strength of the order passed by Mr. M. Y. Khand. During the course of the proceedings before the Additional Commissioner (Consolidation), Mahboob All Khan, petitioner No, I was impleaded as a party. He filed a revision petition before the Board of Revenue. The same was dismissed on the 7th of May, 1963 (Annexure P. 3) on the ground that this question could not be re-opened under the Consolidation of Holdings Ordinance.
5. At the time when Mr. M. Y. Khand passed the order, it was generally considered that a person inheriting property from her husband as a widow under custom, became full owner of the property allotted to her in Pakistan in lieu of the property abandoned by her in India. A Full Bench of the Lahore High Court of West Pakistan in Sher Muhammad v. Additional Rehabilitation Commissioner, Multan and others (1), held that such a widow becomes entitled to permanent settlement of the land under section 15 and becomes vested with he proprietary rights under section 16 of the Displaced Persons (Land Settlement) Act XLVII of 195F. As such she is competent to alienate it in her life-time and is entitled on her death to be succeeded by her own personal heirs and not the heirs of the last male owner. This remained the law till the decision of several appeals including Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shaft and others (2) by the Supreme Court of Pakistan., The Supreme Court overruled the Lahore case and held that the property allotted in Pakistan to such a widow is also subject to the same restriction on her right as was the property of her husband to which she succeeded on his death under custom. She does not become full owner of property allotted in Pakistan, It was further held that on the termination of such limited interest in Pakistan, the reversioner of the last male owner will become the allottee of such land to the extent of his share and thus the property in Pakistan after the termination of life interest would devolve on the heirs of the last full owner in India. While declaring this law, their Lordships of the Supreme Court observed as follows-- "In so holding I would also make it clear that this would not entitle the Settlement Authorities to reopen the orders of mutation against which no appeal has been filed and which have become final,"
6. As stated above, the West Pakistan Muslim Personal Law (Shariat Application) Act, 1962 terminated the existing limited estates w.e.f, 31.12-1962, This provision came up for interpretation in Sarwar Bibi v. Said Ahmad and others (3) It was held that existing life interests were not terminated by this Act and they would subsist tit death or remarriage of the holder., The correctness of this dictum was disputed before the Supreme Court in some cases, The Governor of West Pakistan, however, promulgated Ordinance IX of 1972 known as Punjab Muslim Personal Law (Shariat)
Application (Removal of Doubts) Ordinance, 1972 which was made effective from the 31st of December, 1962 Section 2 of this Ordinance reiterated the law that the limited estates in respect of immovable properties held by Muslim females under the Customary Laws shall be deemed to have been terminated w,e,f, 31st December, 1962. The relevant provision is reproduced below:- "2. Removal of doubts,-(1) Notwithstanding anything contained in the West Pakistan Muslim Personal. Law (Shariat) Application Act, 1962 (West Pakistan Act V of 1962), the West Pakistan Muslim Personal Law (Shariat) (Amendment) Ordinance, 1963 (West Pakistan Ordinance, XXXIX of 1963), the West Pakistan Muslim Personal Law, Shariat) Application (Amendment) Act, 1964 (West Pakistan Act XXVIII of 1964) or any other law, or any decree, judgment, or order of any Court or other authority, or any proceedings pending before any Court or other Authority, the limited estates in respect of immovable property held by Muslim females under the Customary Law shall be deemed to have been terminated with effect from 31st day of December, 1962.
(2) All decrees, judgments or orders passed in any suit, appeal or other proceedings by any Court or other authority which are
(1) PLD 1968 Lab, 234 (2) PLD 1971 SC 791
(3) D 1969 Lab, 412 inconsistent with the provisions of subsection (1) shall be of no legal effect and such suits, appeals or other proceedings shall be decided afresh on the application of any person affected by such decree, judgment or order."
7. The judgment of the Lahore High Court in Sarwar Bibi's case came up for consideration before the Supreme Court in Muhammad Yuqub v. Member, Board of Revenue (1). The case before their Lordships was that of an allotment in favour of the widow under the Rebabilitation Act, Their Lordships reproduced their finding in Sher Muhammad's caw and held Ordinance IX of 1972 as a valid piece of legislation. They further held that section 3 of Act V of 1962 had, without any reservation terminated all limited estates held by Muslim females in the Province of West Pakistan with immediate effect. Since this manifest intention of the Legislature was negated by the High Court in Sarwar Bibi's case, it was necessary to reaffirm the rule of law contained in section 3. In these circumstances the Ordinance, IX of 1972 was enforced to clarify the legal position.
8. After the 31st of December, 1962 and before the date of application of Ordinance IX of 1972 the widow allottees had dealt with the properties allotted to them in lieu of their widow's interest as full owners. In numerous cases they had alienated these properties in order to remove this difficulty and to give effect to the Act of 1962, Ordinance of 1972 and the law declared by the Supreme Court, an Ordinance known as the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Ordinance V of 1975, was promulgated on the 28th of January, 1975. This Ordinance was later on replaced by the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties)
Act XXV of 1975. This act was made effective retrospectively from 15th of March, 1948. Its p-eamble and sections 2, 3 and 4 are reproduced here:- "Preamble.-Whereas refugee females who were limited owners under custom were allotted evacuee property in the Punjab and such allottees were erroneously treated as full owners of the property allotted to them; ' And whereas, the Supreme Court of Pakistan has held that allottees are limited owners under custom.
' And whereas it is expedient to extend the benefit of the said decision of the Supreme Court of Pakistan to the persons aggrieved by the said erroneous view; It is hereby enacted as follows:--
(2) Removal of difficulties.-Notwitbstanding anything to the contrary contained in any other law for the time being in force, all decrees, judgments or orders passed in any suit, appeal or other proceedings by any Court or other authority treating a refugee female allottee as full owner of the property allotted to her in lieu of the property abandoned by her in India or to which she was otherwise entitled; as a limited owner, shall be of no legal effect and such suit, appeal or other proceedings shall, on an application made by an affected person within one year of the commencement of this Act, be decided afresh.
(1) PLD 1973 SC 304
(3) Permission to file fresh suits, etc.-Any person aggrieved by an alienation or an order of succession with regard to any property allotted to a refugee female in lieu of the property abandoned by her in India or to which she was otherwise entitled as a limited owner under custom, and who could not challenge such alienation or succession, may call it in question in a Court or before any other authority within one year of the commencement of this Act.
(4) Bar to claim adverse possession.-Any person who claims to have acquired any right or interest in property whether by alienation, succession or otherwise, originally allotted to a refugee female limited owner, shall have no right to plead adverse possession against any lawful heir of the last male holder."
9. The Supreme Court in Additional Settlement Commissioner v. Muhammad Shafi (1) had found it difficult to apply the principles of its decision to matters already decided. It had therefore added a clarification that its judgment would not entitle the Settlement Authorities to reopen the orders of mutations against which no appeal had been filed. This difficulty was removed by the Act by its section 2 and all orders passed contrary to the law as declared by the Supreme Court, whether by Court decrees or judgments or by other authorities were declared as being without lawful authority.
It was further provided that proceedings, suits or appeals in which order, judgment or decree so declared, was made, could be treated as pending liable to be decided afresh if application by an affected person was made within one year of the commencement of the Act. Section 3 provided for filing suits or proceedings by an aggrieved person within the same period of limitation to challenge an alienation or an order of succession with regard to such property where he could not challenge such alienation or succession. Section 4 barred any claim of adverse possession against any lawful owner by a transferee of such property or by a person who succeeded to it in a manner contrary to the law declared and clarified by the Act of 1975.
10. The petitioners after the enforcement of Ordinance IX of 1972 submitted four petitions before the Revenue Officer 1st Grade for review of mutations made in the four villages by which respondent No, 2 was allotted land in lieu of her widow's interest. Since only the Collector was competent to allow review, the Revenue Officer referred the case to him with a report dated 234-1974. These applications purported to have been made in view of subsection (1,,) of section 2 of Ordinance IX of 1972 which after declaring the orders passed inter alia in any proceedings by any Court or authority as being without legal effect provided that such proceedings shall be decided afresh on the application of any person affected by such order.
11. After the enforcement of Act of 1975 the petitioners applied to the Collector on the 15th of June, 1975 by four applications (copy of one of which is Annexure P. 7) to treat their above-mentioned applications as applications under the Punjab Act XXV of 1975 and to direct the Tebsildar (Assistant Collector, Gujranwala) to decide them under that Act.
12. The Collector dismissed these applications by a consolidated order Annexure P. 8 dated 27-1- 1976 for the following reasons:-
(1) In view of the order dated 3-7-1960 passed by the Settlement
(1) PLD 1972 SC 791 Commissioner the proper forum for the dispute about termination of life interest was either the Settlement and Rehabilitation Authority or a civil Court.
(2) In a case relating to cancellation of mutation No, 94 in consolidation proceedings Mahboob Ali Khan had gone up in appeal before the Board of Revenue without any success. The Board of Revenue was, therefore, the proper forum under the Act of 1975 for setting aside the orders.
(3) Under section 3 of the Act of 1975 fresh application can be filed by a person to challenge any alienation or succession. But since the petitioners had gone to the Board of Revenue in Mutation No, 94, this provision does not help them.
(4) The question of title about the parties as being legal heirs could be deckled only by the civil Court.
(5) Punjab Act of 1975 does not permit pending applications to be treated as applications under that law.
13. The basic question in this case is whether M.o. Selma Begun], respondent, No, 2 was a limited owner of the property to which she succeeded on the death of her husband in the year 1942. The argument of Sheikh Abdul Haque, learned counsel for respondents Nos. 2 to 4 is that respondent No, 2 was recorded as full owner. The petitioners have filed the Mutation of succession decided in 1942 (Annexure P. 4). The order of sanction of mutation notices that Hakim Mahtnood All had died chile less. It was also noticed that he had two brothers. The mutation of succession was, however, attested in favour of respondent No, 2 as a widow. Annexure P. 5 is the Copy of Register Riwaj-e- Aam. It has been produced to prove that a Rajput's widow succeeds to his estate till remarriage.
From this Riwaj-e-Aam it can be deduced that if she not does remarly, her life interest must terminate on her death. Annexure P. 6 is a copy of the pedigree-table which proves Mahbub Ali Khan, petitioner No, 1 to be a full brother of Mahmood Ali Khan and respondent No, 2 to be his widow.
14. These documents establish beyond any shadow of doubt that the petitioners' family was governed by custom and the widows succeeded only till remarriage or at the most till death and that the mutation of succession of Mahmood All Khan was attested in favour of the widow A despite his having left a real brother. The relationship between the deceased and the petitioners does not appear to 'have been challenged in any earlier proceedings. This is clear from Annexures P. 1, P. 3 and P.
8. In the written statement respondents Nos. 2 to 4 have admitted this relationship. The other respondent have not denied it specifically in their written statement. They have denied the contents of para. 2 of the writ petition (dealing with relationship) for want of knowledge. It is, therefore, evident that notwithstanding the fact that Mahmood Ali Khan had a brother and mother in addition to his widow, the first two were excluded from succession to the property. This exclusion was not possible if the mutation Annexure P. 4 had been attested under Shariat. In that case respondent No, 2 would have been given only 1/4th out of the estate of her deceased husband. The mutation Annexure P. 4 must, therefore, be held to have been attested under custom.
15. This was not seriously disputed by either of the learned counsel. The only argument in this connection was that custom differs from place to place. In these circumstances it is not possible without evidence of what that custom was, to give a finding in favour of respondent No, 2 being a limited owner. Sh. Abdul Haq argued that there might be a custom which gives to the widow full ownership in the property. I do not agree with this argument. The general custom in the Punjab is in favour of the widow succeeding to an interest till death or remarriage. I have not come across a single instance where the widow may have succeeded to the property of her husband as a full owner. Nor was any reference made to any customary law to justify this assertion. The Rijaj-i-Aam (Aonexure P. 5) is sufficient to prove its hollowness. Even if this document had not been on record, there would be no difficulty in arriving at the same conclusion in view of the general custom about widow's estate being uniform and explicit. The estate held by respondent No, 2 was only a widow's estate terminable on her death or remarriage. The property allotted to her in Pakistan was subject to the same restriction and did not confer upon her any right of full ownership.
16. In this view of the matter the order of Mr. M. Y. Khand which has been relied upon subsequently to the detriment of the petitioners was without lawful authority and was declared as such first by Ordinance IX of 1972 (section 2(2), and then by Act XXV of 1975 (section 3).
17. The learned Collector has held that the forum for the decision of this matter was the Settlement Authority who succeeded Mr. M. Y. Khand. The learned counsel for the respondents also argued on the same lines. This aspect of the case may now be considered.
18. The Evacuee Property and Displaced Persons (Laws Repeal) Act, 1975 repealed inter alia, the Displaced Persons (Land Settlement) Act, 1958 and the Pakistan Rehabilitation Act, 1956, with effect from Ist of July, 1974. It made provisions about the proceedings pending before the Settlement Authorities on the above date. Subsection (2) of section 2 of the Act provided that all such proceedings shall stand transferred for final disposal to such Officers as may be notified by the Provincial Government in the Official Gazette. The Provincial Government issued such a Notification No, 296 (Misc.) ADMN. 170/1974, by whirl it conferred the powers of the Settlement Commissioners on the Additional Commissioners of their respective Divisior s and the powers of Additional Settlement Commissioners on the Deputy Commissioners of their respective Districts. It was argued that since Mr. M. Y. Khand while passing the order of July, 1960, acted as a Settlement Commissioner after .The declaration of that order as having been passed without lawful, authority, only the Additional Commissioners would be competent to decide the matter of which Mr. M. Y.
Khand was once seized.
19. This argument is attractive on the face of it but on a deeper consideration, I fail to find any force in it. It is clear that the proceedings before Mr. M. Y. Khand were started by Peer Muhammad who was only interested in the cancellation of 311th of the area allotted in the name of respondent No, 2 which according to him had on her remarriage devolved upon petitioner No, 1 who being an Indian National could not take advantage of it. Peer Muhammad had challenged in that application not only the right of respondent No, 2 but also of the petitioners, particularly petitioner No,
1. Peer Muhammad has now no interest left and cannot be expected to initiate or continue those proceedings. The petitioners who were never a party to these proceedings cannot continue the same.
' Moreover they cannot be expected to initiate proceedings of an application which cuts off their interest also. I am therefore of the view that these proceedings are neither capable of being continued nor can they be continued by the petitioners. In these circumstances the order of the Collector that the Settlement Authorities formed the proper forum is not justified by law.
20. I have already held that the proceedings before Mr. M. Y. Khand were incapable of being continued. Then how would the Acts of 1972 and 1975 benefit the petitioners. Both the Acts declare certain orders as having been passed without lawful authority. Such declaration might pend proceedings in which the order was passed. To meet this situation they add provisions for fresh decision of these proceedings on applications of affected person. But such provisions, where they are not applicable to particular cases, would not negate the effect of the legislative declaration about the order being void or without lawful authority.
21. It would not be a vindication of the provisions of (1) the declaration and (2) the measure for obtaining relief, if it is held that they should be interpreted as only capable of standing and tailing together. There may be a situation in which mere declaration may be effective without the necessity of the matter being pursued further by resorting to-the measure provided in the two Acts. These may be cases where the original proceedings, in which the order statutorily declared void was passed, have been rendered infructuous on the date of enforcement of the two Acts for other reasons. In such cases the proceedings would not become pending as a consequence of declaration. Nor would resort to the provision about application for fresh decision be in such cases possible. Similarly there might be another category of cases where though such order prior to its being declared ultra sires by the Acts of 1972 and 1975, be a permanent and insurmountable hurdle in the way of non-parties to the Proceedings, yet it may not be in the interest of such non-parties to apply for de novo decision of those proceedings. In such cases, in view of the impossibility or inadvisability of continuance of the proceedings for a fresh decision, the declaration of the order as being without lawful authority, should be taken to its logical conclusion. The two Acts make provisions for something in the nature of remand, but such provisions will be attracted here it is capable of being acted upon. Where the proceedings do not merit to be remitted, the declaration will be as effective as if the matter already stands disposed of. V here further adjudication is neither possible nor in the interest of the person affected, it can, on no principle of interpretation, be forced upon him, nor do the Acts compel such a person to seek such adjudication.
22. The analogy of a suit for declaration simpliciter or a suit where consequential relief is or has to be claimed would be apt for interpreting these provisions. In cases where consequential relief may not be necessary a decree for declaration, simpliciter would be an effective decree. On this analogy where no further determination is probable or even plausible, the simple declaration by the statutes, about the order already passed being without lawful authority would clear the impending hurdle without recourse to further proceedings. It would be only in cases where adjudication in the proceedings rendered pending, is required, that application must be D made within the time fixed for a fresh decision under risk of losing the advautage of declaration.
23. Applying these principles to the instant case it may be seen that it was not necessary for the petitioners who were not parties to the proceedings initiated by Peer Muhammad and in which their own entitlement was challenged to apply for de novo decision of those proceedings. They were entitled to take advantage of the declaration about the order of Mr. M. Y. K hand to be without lawful authority and to urge that respondent No, 2 being only a limited owner of the property in dispute, after the termination of her interest on 31.12-1962 by the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the petitioners became co-owners of 3/4th share. The only hurdle in their way was the order of Mr. M. Y. Khand, which was surmounted by them by the statutory declaration of its being without lawful authority. The same having been thus removed, the petitioners would be entitled to the benefit of the Act, of 1962 without moving the Settlement Authorities. They can apply direct to the Revenue Authoritie to attest mutation of inheritance of the deceased full owner as a result of this declaration in the same manner as they could move those authorities under Punjab Land Revenue Act for attestation of mutation of succession to give effect to the provisions of the Act of 1962. They can urge before the Revenue Authorities to treat the order of Mr. Khand as a nullity which it undoubtedly is.
24. The learned Collector has relied upon the orders passed in the consolidation proceedings which culminated in the order of the Board of Revenue, Annexure P.
3. These proceedings were initiated by the Consolidation Authotities by entering Mutation No, 94 for opening the succession of Mebmood Ali Khan after the remarriage of respondent No, 2 which took place in 1953. As has already been seen, the Collector allowed the attestation of this mutation. The Additional Commissioner allowed the appeal of respondent No, 2 on the strength of the order of Mr, M, Y. Khand. The Board of Revenue, however, justified the order on the ground of incompetence of the Consolidation Authorities to attest this mutation. No law has been shown to me under which the Consolidation Authorities could have attested such a mutation. The order of the Board of Revenue, therefore, cannot be said to have been declared without lawful authority by the two statutes and the proceedings before the Board of Revenue could not, therefore, be continued.
Moreover the petitioners had not approached the Collector on the ground of termination of the life interest on remarriage. Their case now is that the termination occurred under the Act of 1962. Any reference to the order of Board of Revenue or the proceedings of consolidation was consequently irrelevant under either. Of the two sections i,e, sections 2 and 3 of Act XXV of 1975.
25. The learned Collector has also acted without lawful authority by holding that the petitions already pending could not be treated as petitions under Act XXV of 1975. It is true that where the continuance of proceedings is not contemplated, and fresh proceedings are required to be taken, Ordinance IX of 1972 would not apply. I agree with the argument of Muhammad Arif that the original applications submitted under that Act by the petitioners were misconceived. I have already found that the petitioners were not required to reopen the proceedings initiated by Peer Muhammad The proceedings before the Revenue Authorities being new proceedings, they could not be started under that Act. This is, however, no ground for throwing away those applications since they are competent under the general law te. The Punjab Land Revenue Act, 1967. In any case the only objection against those applications would be against their maturity. But even that objection would be unavailing since after the enforcement of the Act of 1975 these petitions should be taken to have matured. There is, however, no bar against the treatment of these applications as applications under the Act of 1975. Section 3 of that Act provided for making of applications within one year of its commencement. This provision is complied with by the submission of four applications within time for treating the pending applications as applications under the now Act.
26. The Collector has also held that the question of title can be decided only by the civil Court. This amounts to a refusal to exercise jurisdiction vested in him by law. Under the West Pakistan Land Revenue Act, 1967 (vide sections 42 to 45) it is the duty of the Revenue Officers to keep the Revenue record up-to-date by incorporating in it all the change brought about by the transfer or by inheritance. The same duty was imposed upon the Revenue Officers by the Punjab Land Revenue Act, 1887. The Act of 1962 terminated the life interest of the widows. It was, therefore, incumbent upon the Revenue Officers to enter and attest afresh mutations of inheritance. The mere fact that a question of title was involved would not absolve them of this legal responsibility. In case of disputed acquisition of interest he is bound to make inquiries into such acquisition in the manner provided in subsections (6) to (11) to section 42. Section 45 provides "for the variation in the existing entries in accordance with facts proved or admitted to have occurred". This would include the decision on question of title. It is only in a case where some question of law may be intricate or difficult to decide that the Revenue 0 tier can direct the parties to go to the civil Court, but in that case also it cannot refuse to give effect to its own decision. The fact that the decision of the Revenue Authorities is subject to the decision of the civil Court, is no reason to shirk one's duty of arriving at some decision. With the object of keeping the Revenue record in line with the changing circumstances. The order of the Collector is therefore without lawful authority. It is also contrary to the law laid down in Mst. Ghulam Fatima v. Muhammad Hussain and 5 others (1). The question before their Lordships in this case was whether the civil Court and Revenue Court's jurisdiction was ousted regarding determination of questions of succession to the estate of confirmed allottees. It was held that there is no provision in the Displaced Persons (Land Settlement) Act conferring such a jurisdiction upon the Settlement Authorities. Accordingly the jurisdiction of the civil Court and the Revenue Courts was not ousted. Clearly, therefore, the jurisdiction vested under sections 42 to 45 of the Lend Revenue Act, 1967 is exerciseable by the Revenue Officer.
27. As stated above, the basic question is whether respondent No, 2 was a limited owner. In view of the admitted facts and circumstances of this case this is not a difficult question for the Revenue Authorities to decide. It is their duty to attest a mutation of inheritance in accordance with the provisions of Act V of 1962. Once this is done, there will be no difficulty in setting aside the mutations of alienation in regard to 3/4th of the property inherited by the petitioners. The alienation can be held valid only to the extent of 1/4th which is the Shariat share of respondent No,
2. Once it is hold that the petitioners had on 31-12-1962 become co-owners to the extent of 3/4th of the land allotted in the above villages, it would follow that any subsequent alienation of that property by respondent No, 2, whether by a registered instrument or by an oral agreement, is unsustainable at law. It would be a transfer by a person having no
(1) PLD'1976 SC 729 ' Interest in the property and could not therefore be incorporated in the Revenue record under sections 42 to 45 of the Land Revenue Act. The Collector ought, therefore, instead of dismissing the application to have referred the matter to the Tehsildar for attestation of a mutation of inheritance of Mahmood All Khan in view of the termination of limited interest and also to permit him to review the other mutations of alienation referred to above.
28. It was argued that the petitioners did not in their applications before the Collector pray for attestation of mutation of inheritance of Mahmood All Khan and as such no order to this effect can be passed either by the Collector or by this Court. This argument is without force since the applications for review of the mutations of transfer are based upon the factum of termination of the limited interest of respondent No,
2. Whatever relief flows from this right cannot be withheld by respondent No, 1 or by this Court. The defect in pleading should not prevent the relevant authority or Court from doing complete justice, nor should be instrumental G in the perpetuation of injustice.
29. It was contended that the petitioner's remedy was by a suit for possession which could have been filed in a civil Court. There may be force in this argument but it does not absolve the Revenue Officers of their duties under the Punjab Land Revenue Act to attest mutation of inheritance under the Land Revenue Act or to review incorrect mutations already attested. The factum of possession may be relevant before a Revenue Officer only if it helps in determining whether a fact has or has not occurred. It is immaterial in a case of inheritance. The Revenue Officers cannot justifiably abstain from performing their duty under sections 42 to 45 of the Land Revenue Act. They ought to decide the questions within their jurisdiction and leave the rest to be pursued before a civil Court.
30. I may refer to an argument of the learned counsel for respondents Nos. 5 to 71 that a civil suit for possession would not be competent after the expiry of one year's period. I am not called upon to decide this question, but I am not in agreement with the argument that the Act of 1975 curtails in any manner the limitation period as provided by the Limitation Act. The Act of 1975 was promulgated to remove difficulties inter alia arising out of the expiry of the period of limitation for suits of the nature described in its sections 2 and 3. The provisions about limitation in the Act would not, therefore, apply to cases where the limitation period for a suit even though it may be a consequence of declaration by the statute of certain orders or decrees etc. Being without lawful authority, has not/ expired under Limitation Act. The Act does not curtail the period of limitation provided by the Limitation Act; it rather enlarges the time for commencement of action in cases where either there is no limitation period left or the period of limitation left is less than the period provided by the Act of 1975.
31. Mr. Muhammad Arif urged that even on this principle a suit to challenge the alienations of 1969 and 1970 would be barred by time and for this reason this Court should not exercise its discretionary jurisdiction under Act 199 of the Constitution in favour of the appellants. This argument appears to be based on the period of limitation provided by Punjab Act or of 1920. Under that Act a suit to challenge alienation inter cilia by a widow could be filed within 6 years. Bat that Act is no longer applicable after its repeal by the Act of 1962. The argument based on the repealed Act, would be unavailing to the respondents. Moreover the law about alienation by widow would not be attracted to this case in which the transfers have been made by the widow, after termination of her life interest. These are illegal transfers by an absolutely unauthorised person which need not even be challenged in a Court of law. Even if the petitioners file suits for possession, those suits may be governed by Article 142 or 144 of the Limitation Act. In such cases it may be arguable in view of section 4 of the Act of 1975 that the transfrees cannot claim any adverse possession at least till the date of commencement of that Act. In these circumstances there is no bar to the exercise of discretion in favour of the petitioners.
32. Mr. Muhammad Arif also argued that it might be of no avail to the petitioners to challenge the alienation since the right of the petitioners may be hit by the provisions of Lsnd Reforms Regulations (Martial Law Regulation 115) and they may not be entitled to as much property as is the subject-matter of the petition. But this argument is not relevant to the question before me.
33. Before concluding I may refer to two other arguments of the learned counsel for the respondents. It was urged that the petitioner No, 1 is not a Pakistani national and the documents Annexures P. 4 to P. 6 relied upon in the petition did not carry the endorsement of the Pakistani Embassy in India as required by section 78(6) of the Evidence Act. These points do not appear to have been raised in any earlier proceeding. However, they are also without force. In the replication to the written statement filed by respondents Nos. 2 to 4 it was clarified that the petitioner No, 1 is a Pakistani national. This is supported by an affidavit. The learned counsel for the petitioners showed to me the copies of documents Annexures P. 4 to P. 6 obtained from India which bear the necessary endorsement by the Diplomatic office of Pakistan. Both these points are without merit.
34. I allow this petition, with costs, declare the order of the Collector, to have been passed without lawful authority and remand the case to him for fresh decision in the light of the above observations.