' MUHAMMAD BASHIR JEHANGIRI, J.---This appeal with the leave of the Court is directed against the judgment dated 18-6-1995 of Lahore High Court, Multan Bench, whereby R.S.A. No,28 of 1992 was accepted, the impugned judgment and decree passed by the District Judge non-suiting Abdul Wahid respondent was set aside and the judgment and the decree passed by the learned Trial Court, was restored.
2. The factual background of this appeal is that agricultural land measuring 56 Kanals and 6 Marlas situated in village Bahaini, Tehsil Multan, was allotted to Mst. Hashmat Bibi in lieu of the land abandoned by her husband in East Punjab at the time of partition of Sub-Continent in 1947. She sold it to one Ghulam Nabi. Abdul Wahid respondent instituted a suit to pre-empt the sale made in favour of Ghulam Nabi which was decreed in his favour. In execution of the decree, he obtained the possession of the land in dispute. The land was then transferred in favour of the respondent on the basis of Mutation No,161 dated 27-3-1969 and since then he is in possession thereof. On 31-3-1975 the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties (Punjab Act XXV of 1975) (hereinafter called as the Act) was promulgated.
' The appellants approached the Assistant Commissioner/Collector, Multan, somewhere in the year 1976 who by order dated 7-7-1976 dismissed the application. Feeling aggrieved, the appellants filed an appeal against the order aforesaid of the A.C./Collector. The Additional Commissioner (Rev.)
Multan Division by his order dated 11-2-1978 observed that "Abdul Wahid respondent had stepped into the shoes of Ghulam Nabi vendee and that the decree in his favour was without any legal effect and beyond the share of the widow in view of section 2 of the Act referred to above". The Additional Commissioner, therefore, accepted the appeal, set aside the impugned order of the Assistant Commissioner/Collector and directed that fresh mutations terminating the life estate of Mst. Hashmat may be sanctioned in favour of the heirs of the last male owner according to Muslim Personal Law and that 1/4th" share in the estate of the husband of Mst. Hashmat Bibi shall devolve on her/her heirs. This time Abdul Wahid respondent was aggrieved and he filed R.O.A. No,54 of 1977 in the Board of Revenue, Punjab, challenging the order of the Additional Commissioner dated 11-2- 1978. It was contended before the Member Board of Revenue, Punjab on behalf of the respondents that as the decree of a Civil Court granting the relief of superior rights of pre-emption to the respondent herein held the ground, the Revenue Court could not have re-opened the issue of the termination of the limited estate of Mst, Hashmat and, therefore, the appellants should have approached the Civil Court for the relief. On the contrary, the learned counsel for the appellants herein, submitted that the issue before the Civil Court was merely right of pre-emption and not that of limited estate and that as there was no decision of the Civil Courts on the question whether Mst.
Hashmat Bibi was holding the property as a full or limited owner the Revenue Courts were competent to decide the case under the Act. The learned Member accepted the contention of the learned counsel for the appellants and held that in the case before him the "Civil Court's decree was regarding the pre-emption right of the parties and not that the widow was the full or the limited owner. The law gives the right to the Revenue Courts." (underlining is by us to provide emphasis).
3. The respondent Abdul Wahid, therefore, challenged the order of the learned Member, Board of Revenue, in a suit filed in the Court of learned Civil Judge, Multan, seeking declaration and perpetual injunction so as to restrain the appellant and one Badarul Huda defendant No,2 therein from interfering in the ownership as also in the possession of the respondent over the disputed land. Shorn of further unnecessary details ultimately the suit filed by the respondent was decreed by the learned Civil Judge. Multan, vide judgment dated 9-12-1990. In appeal before him, the learned District Judge held Mst. Hashmat to be a limited owner. It was further held that the Revenue Authorities were competent under sections 2 and 3 of the Act "to decide the question of inheritance of the estate left by a widow inasmuch as the subsequent sale in favour of Ghulam Nabi and Abdul Wahid respondent having pre-empted the transaction all these transactions, having merged into the earlier allotment of land in favour of Mst. Hashmat, fell within the jurisdiction of the Officers in the Revenue hierarchy and that the Civil Court had no jurisdiction". The appeal filed by the appellants was, thus, accepted and the judgment and the decree granted to the respondent by the learned Civil Judge were set aside.
4. The appellate judgment and the decree was challenged in R.S.A. The learned Judge in Chambers of the High Court, who was seized of the matter, noticed that rule of propriety demanded that "the same Court/Authority would be in a better position to appreciate the controversy having arisen in the wake of the promulgation of the Act," In this context, the learned Judge in Chambers examplified a case under the provisions of section 12(2), C.P.C. Whereunder an application for setting aside a decree is maintainable before the same Court which had passed the final judgment and the decree. It was then held that "in the instant matter not only that application was not filed before the same Civil Court under the Act but it was also moved before the Revenue Court.
The Revenue Court of the first instance agreed with the contention of the respondent which was set aside by the Additional Commissioner (Revenue) and the Board of Revenue". The learned Judge then maintained that according to even the revenue law, the proprietary rights in a property could be finally determined only by the Civil Court and not by the Revenue Court. The learned Judge also extended the benefit of section 41 of the Transfer of Property Act (IV of 1882) inasmuch as the respondent was not impleaded as a party to the application filed under section 2 of the Act before the A.C/Collector, Multan. In this view of the matter the R.S.A. Was accepted and the impugned judgment and the decree by the learned District Judge was set aside and that of the learned Trial Court was restored whereby the impugned order dated 8-6-1980 passed by the Member, Board of Revenue, Punjab, was declared to be "Without jurisdiction, illegal and in-operative" and declared "Abdul Wahid respondent to be the owner in possession of the disputed property".
4-A. Leave to appeal was granted by this Court to consider whether in view of the authority of this Court in Muhammad Aslam v. Abdul Hamid (1991 SCM R 552) the hierarchy of the Revenue Courts could be competently approached for relief under the provisions of section 2 of the Act and, therefore, the High Court was in error in holding that forum for making the application under the Act for giving effect to its provisions was the Civil Court and not the Revenue Officer concerned.
5. Learned Counsel appearing for the appellants contends that on the crucial question whether jurisdiction under sections 2 and 3 of the Act has been conferred on the Civil Court or else on the authorities in the hierarchy in the Revenue Courts, the choice rested with the, applicant under section 3 of the Act, and, therefore, appellant No,1 having approached the A.C./Collector, Multan, the decision ultimately rendered by the Member Board of Revenue, did not suffer from any infirmity of jurisdiction. Learned counsel then contends that the High Court has gone wrong in taking the view that the Court envisaged by section 3 of the Act in the instant case could be only the Civil Court which had decreed the suit for possession by pre-emption in favour of Abdul Wahid respondent and that in consequence the order dated 8-6-1980 passed by the Member, Board of Revenue, Punjab, suffered from lack of jurisdiction. The High Court, it is further submitted, on the above erroneous finding has also erred to take the view that further question raised before it whether Mst. Hashmat Bibi was or was not limited owner need not be looked into. The learned counsel also urged that the High Court had not correctly deduced the ratio from the case of Additional Settlement Commissioner v. Muhammad Shaft and others (PLD 1971 SC 791) that sale evidenced through Mutation No,82 dated 13-6-1966 and consequential judgment and the decree dated 20-5-1968 passed in favour of Abdul Wahid respondent was rendered inoperative inasmuch as the rights acquired by Abdul Wahid being a bona fide purchaser under section 41 of the Transfer of Property Act, 1882 were not affected. In this context the learned counsel for the appellants has invited our attention to the decision of this Court in Muhammad Aslam and another v. Abdul Hamid and others (1991 SCM R 552).
6. Mr. Gul Zarin Kiani, learned Advocate Supreme Court, appearing on behalf of the respondent, on the other hand, submitted that the appellants had not challenged the order by which the Revenue Authorities had transferred the land in dispute in favour of Hashmat Bibi and had simply questioned the validity of the alienation of the land made by her on the ground that she was a limited owner of the land, therefore, his suit could only be tried by a Civil Court. The learned counsel further maintained that in the instant case the sale transaction made by Mst. Hashmat Bibi in favour of Ghulam Nabi was successfully preempted by Abdul Wahid respondent in a Civil Court and it was, therefore, all the more necessary that the Civil Court ought to have been approached rather than the Revenue Authorities who were devoid of jurisdiction in the matter. According to him, the controversy regarding the termination of limited estate held by Hasmat Bibi raised by the appellant as a collateral of her husband was cognizable by the Civil Court under section 3 of the Act, whereunder the alienation made by Hashmat Bibi to Ghulam Nabi and then the decree for possession by pre-emption passed by a Civil Court could only .Be challenged before the same Court and not before the Revenue Courts. Reference was made to the judgment of Lahore High Court in Feroze v. Lal and 3 others (1981 CLC 11) In this case, a learned Single Judge in paragrahph 10 of the judgment held as under:- "Section 3 empowers the civil Courts to adjudicate upon the validity or otherwise of an alienation made by a female refugee of, the land transferred to her in lieu of the land held by her in India. It would, therefore, follow that the Civil Courts have jurisdiction to go into the question relating to the validity of the alienation of the disputed land made by Mst. Rashidan in favour of the respondents.
In the existing state of law, therefore, I am unable to uphold the finding of the learned Additional District Judge that the Civil Court had no jurisdiction to decide the matter in dispute.".
7. The learned counsel then invited our attention to the case of Hashmat Ali and another v. Mst.
Jantan and 6 others (1993 SCM R 950) wherein sections 2 and 3 were interpreted in para.7 of the judgment which is reproduced hereunder:- "If sections 2 and 3 reproduced above are read together, then it would appear that the intention of Legislature was to divide affected persons into two categories. In the first category are persons, who, aggrieved on account of erroneous view, had litigated and some judgments and orders were passed in suits, appeals, or other proceedings. Such judgments and orders treating refugee females as full owners were declared to be of no legal effect and such affected persons were given right of fresh hearing. The other category of affected person is covered by section 3 which provides for permission to file fresh suits. This permission is given to persons, who could not challenge such alienation or succession for some reason. Here, legislature has not used word 'did' but on purpose has used word 'could' to denote the sense that such persons who were unable to challenge alienation for variety of reasons and legal objections including the one that suit was barred by limitation, were given opportunity to file fresh suits."
8. Since the main controversy revolves around the true interpretation of sections 2 and 3 of the Act, it would, therefore, be proper to reproduce them which are as under:- "2. Removal of difficulties. --Notwithstanding 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."
"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 could not challenge such alienation or successor, may call it in question in a Court or before another authority within one year of the commencement of this Act."
9. The contention of the learned counsel for the appellants that under sections 2 and 3 (ibid) the choice rested with the appellants whether to approach the Civil Court or the Authorities in the hierarchy in the Revenue Courts implies a patent ambiguity in the choice of forum for a person seeking relief thereunder.
10. The primary 'test as to whether a provision in a Statute is ambiguous as laid down in Kikness v.
John Hudson & Co. Ltd, (1955) 2 All ER 345, 366 (HL) and quoted at page 544 in Bindra's Interpretation of Statutes, 7th Edition, is that it contains a word or phrase which in that particular context is capable of having more than one meaning". It was further observed that "by an ambiguity is meant a phrase fairly and equally open to diverse meanings". In this context, the author, in his Commentary, quoted from Motor owner's Insurance Co. Ltd. v. Jadavji Keshoji Modi (22 Guj LR 1208 (SC), the following observations on the Subject:- "Where the language is of doubtful meaning, or where an adherence to the strict letter would lead to injustice, to absurdity, or to contradictory provisions, the duty devolves upon the Court of ascertaining the true meaning. It is in this area of legislative ambiguities that Courts have to fill up gaps, clear doubts and instigate hardships which leaves a sufficient discretion for the Judges to interpret laws in the light of their purpose".
11. The phraseology' all decrees. Judgments, or orders passed in any suit appeal or other proceedings by any Court or other authority' and such suit, appeal or other proceedings shall, on an application.... Be decided afresh" used in section 2 and...."may call in question in a Court or before any other authority... "enacted in section 3 of this said Act (ibid) create ambiguity as to the choice of forum for the litigant.
12. If the words of a statute are ambiguous as to the choice of forum, as is case in hand, the Court would be justified in construing the words in a manner which will make the provision purposeful and unambiguous.
13. Applying the above test, the learned Single Judge, in this case, seems to have construed the two sections in accordance with the principle of interpretation of statutes enunciated above and had correctly removed the ambiguity of choice of forum for a litigant under the Act
14. A bare reading sections 2 & 3 of the two sections together reproduced above would reveal that the words suit", " appeal" or "other proceedings" shall on an application made by an affected person be decided afresh" occurring in section 2 cannot be interpreted to hold that even if the suit or appeal was pending in or had been decided by a Civil Court on an application made by the affected persons, it can be decided by the Revenue Authorities. This interpretation would be anomalous. The clear intention of the Legislature seems to be that if the suit or appeal pending decision or had been decided by the Civil Court then on an application made by an affected person the same be decided afresh obviously by the Civil Court. If a suit or appeal is decided by a Civil Court, it would be erroneous to hold that since forum has not been specifically mentioned, the affected person can go to any other authority including the Revenue Courts. Conjunctive reading of sections 2 and 3 of the Act reproduced above would show that the intention of the legislature was to divide the affected persons into two categories different from those made by this Court in the case of Hashmat Ali (supra). In the first category would be the affected persons within the contemplation of sections 2 and 3 whose suit or appeal is either pending or has been decided by a Civil Court, who on an application shall decide the claim of the affected persons afresh in the light of the provisions of the two sections. The second category of the affected persons is those whose proceedings are pending or have been decided by any other authority.
15. In the instant case, the appellants are covered by the first category as the officers of the Revenue hierarchy had not decided the dispute of the termination of limited estate at any stage right from the allotment of the land to Mst. Hasmat Bibi till the appellants had approached the Revenue Officer by way of an application. If the alienation made by her in favour of Ghulam Nabi had remained intact then obviously the appellants could have competently approached the Revenue Officer for correction of the mutation originally made in favour Mst. Hashmat Bibi. In the instant case as noticed above, she had alienated her entire limited estate in favour of Ghulam Nabi which had been successfully pre-empted by Abdul Wahid. No doubt another mutation had been attested in favour of Abdul Wahid respondent but that was on the basis of the judgment of the Civil Court in the pre-emption suit decreed in his favour.
16. We are, therefore, of the considered view that the learned Single Judge in the High Court has rightly held that, in the circumstances of this case, only the Civil Court was possessed of the jurisdiction to decide the claim having arisen under sections 2 and 3 of the Act rather than the Revenue Authorities.
17. This Court in the case of Muhammad Aslam (supra) has set at rest the controversy as to the applicability of section 41 of the Transfer of Property Act in the instant case in paragraph 18 which is as follows:-- "Section 41 of the Transfer of Property Act and the protections thereunder would not apply 'because the very first requirement, that is, the consent, express or implied, of the persons interested in the immovable property was not there, nor there was an ostensible owner. There was no express consent of the real owner and there was no ostensible owner as such. It was all an act under the statute misconceived and misperformed by the authorities and functionaries who are supposed to know better."
18. In view of this clear enunciation of law on the point, the learned counsel appearing on behalf of the respondent was frank enough to concede that the respondent could not successfully seek the protection of section 41 of the Transfer of Property Act.
19. In the circumstances, we find no merit in this appeal and, while upholding the view held by the learned Single Judge in the High Court that in this case Civil Court was the proper forum alone, we dismiss it. But in the circumstances of the case, we leave the parties to bear their own costs.