' On 20-7-1972, the respondents filed a suit against the petitioner. In the plaint it was stated that Jalala, Bala, Jaimal and Lashkar sons of Jamala died in India before Partition. Fateh Bibi was the widow of Bala and on the death of Bala the land was mutated in favour of his son namely Ahmad.
Ahmad died issueless and the land was mutated in favour of his mother Fattan Bibi as limited estate. Thereafter, Mst. Fattan Bibi contracted marriage with Jalala and the said limited estate came to an end, and the land was mutated in favour of the collaterals of Bala. Said Jalala died a year or so before the Partition and was survived by said widow and a daughter from him namely Noor Bibi. This Noor Bibi is stated to have been married firstly to Muhammad son of Lashkar but later was abducted by respondent No,1, Muhammad Sultan, when she was divorced by her husband she contracted marriage with Sultan and bore him a son namely Ashiq, respondent No,2.
The remaining respondents are the progeny of Sultan and said Noor Bibi; that on the death of said Jalala a mutation was entered in favour of Fateh Bibi as a limited owner but it could not be attested and ultimately she came to Pakistan alongwith her daughter Noor Bibi. Fateh Bibi then filed claim forms on 8-3-1949 in respect of the estate of her husband Jalala, which were not verified. She thus, filed some objections on 18-11-1951 and land was allotted in village Baih Singh, Tehsil Chunian. Ultimately a mutation of inheritance was auctioned in favour of Fateh Bibi and Noor Bibi widow and daughter of said Jalala on 16-11-1954. Fateh Bibi had since died leaving Noor Bibi her sole heir and thus, Noor Bibi became exclusive owner of the suit-land. She had also died and is succeeded by the respondent as her husband and children; that the respondents are in continuing possession of the allotted land which was permanently settled on 24-12-1964. An argument has been incorporated in the plaint that Fateh Bibi being grantee of the land was exclusive owner of the suit land. It has also been stated in the plaint that Fateh Bibi had died after conferment of the land.
The plaint further proceeds that after about 11 years of Partition one Rano Bibi alongwith her daughters (petitioners herein) filed an appeal against mutation ajtested on 16-11-1954 in the year 1958 claiming that they are the widow and children of Jalala. Said claim of the petitioners was denied in the plaint and it was stated that they have been put up by Kamala, predcessor-in- interest of present respondents Nos.18 to 21 who is a collateral of Jalala. As a result of the said appeal the mutation was cancelled on 31-5-1963. The plaintiff/ respondents went in appeal and the case was again remanded to Assistant Collector (II), Chunian. Said Officer maintained the mutation in favour of the petitioner on 2-8-1967. The plaintiff/respondents thus, filed an appeal which was allowed by the Collector and the earlier mutation was restored. This time the petitioners filed an appeal against the said order, dated 19-9-1968 of the Collector. The appeal was heard by Additional Commissioner, Lahore who allowed the appeal on 17-5-1969. It was this order of the Additional Commissioner which was challenged in the suit wherein a declaration was claimed that the respondents are owner in possession of the suit-land. In their written statement, the petitioners denied that Mst. Fattan was widow of Jalala or that Noor Bibi is his daughter. It was, however, admitted that Mst. Fattan was married to Bala and she bore him a son Ahmad who died issueless.
It was asserted that Mst. Rano was the widow of Jalala and that the petitioners are his children.
From the pleadings of the parties following issues were framed:--
(1) Whether this Court has no jurisdiction to try the suit?
(2) Whether the plaintiffs lack cause of action to bring this suit?
(3) Whether padigree table shown in the plaint is correct?
(4) Whether the order, dated 17-5-1969 of the Additional Commissioner, is illegal, without lawful authority, void and inoperative qua the rights of the plaintiffs?
(5) Whether the plaintiffs are the sole owners of the suit land?
(6) Relief.
' Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree, dated 11-7-1981. First appeal filed by the plaintiff/respondents was heard by a learned Additional District Judge, Kasur who proceeded to allot he same and to decree the suit of the plaintiff/ respondents.
2. Learned counsel for the petitioners contends that the Civil Court had no jurisdiction to decide the matter as Jalala as also the alleged limited owner Mst. Fattan had died before the land had been confirmed or permanently settled; that the learned Additional District Judge has proceeded on sheer conjectures and surmises while proceeding to decree the suit of the plaintiff/respondents.
According to the learned counsel the judgment is based on no evidence and is liable to be interfered in revisional jurisdiction.
3. The learned counsel for the plaintiff/respondents, on the other hand, argues that the Additional Commissioner had acted without jurisdiction in the matter and as such the learned Additional District Judge has very correctly set aside his order. He has also tried to argue that the impugned judgment and decree is supported by the evidence on record.
4. I have gone through the copies of the record appended with the C.R. I am constrained to hold that the impugned judgment of the learned Additional District Judge, to say the least, is rather unusual. He has narrated all the facts of the case in his judgment, has discussed the findings of the trial Court with reference to the evidence on record and has recorded his conclusion with reference to the said evidence as follows in para.5 at page 5 of his judgment:-- "I agree with the view of the learned trial Court that the appellants (plaintiff/respondent) oral evidence could not prove their case."
' He then proceeds to discuss the case of the present petitioners (respondents herein) observing that:- "the respondents are also equally responsible to prove their case as about relationship of Rano Bibi and her daughter with Jalala deceased."
' He then discusses the evidence of the respondents and ultimately concludes as follows:-- "In this manner the oral evidence led by both the appellants and the respondent is discarded."
5. Having after thus, holding that both the parties have failed to prove their relationship with Jalala, he proceeds that there is a presumption in favour of the plaintiff/respondent that Fateh Bibi alias Fattan Bibi had taken initiative to get allotment of land in lieu of land left by Jalala in India. Mst.
Rano, on the other hand, had not taken any special initiative. This inactivity on the part of Mst. Rano raises presumption that Mst. Fattan was the widow of Jalala, deceased and resultantly her contention is to be taken to be correct one. He then proceeds to hold that the suit of the respondents seeking a declaration that they are the owners of the suit land being heirs of Jalala is to be decreed.
6. Now the above decision has been given in a case where plaintiff/respondents had come to the Court claiming to be the heirs of Jalala and as such to have inherited the land owned by him and claimed a declaration that they be declared owner of the suit-land. Their claim was denied by the petitioners. They were called upon to prove their claim and both the Courts below including the learned Additional District Judge have been constrained to observe that the plaintiff/respondent have failed to prove their case. Despite the absence of any evidence the learned Additional District Judge has found it proper to decree the suit of the plaintiff/respondent not because they have proved their case but because the petitioners have failed to prove their plea in defence.
7. Needless to say that the learned Additional District Judge has proceeded to present the decree to the plaintiff/respondent in gross violation of time honoured principle constantly affirmed and followed by the superior Courts of sub-continent and of course the Supreme Court of Pakistan, that a party has to succeed on the strength of its own case and not on the weaknesses of its opponents. A reference may be made to the case MD. Anwarullah Mazumdar v. Tamina Bibi and 5 others 1971 SCM R 94. He has, therefore, acted with material irregularities in the exercise of his jurisdiction while passing the impugned judgment and decree. I may here refer to the reasoning of the learned Additional District Judge. He has proceeded on a very dangerous path. If this were to be the law then all that a person had to do was to claim to be the owner of somebody else's property and then if for some reason or the other the opposite party was not able to prove its case, the claim of the said claimant would become liable to be decreed even if the Courts were to hold that he has no evidence in support of his claim as is the position in the case in hand.
8. I also find that the said first contention of the learned counsel for the petitioners also carries force. It is an admitted position on record rather so stated in the plaint that Jalala had died even before the Partition of the Country and mutation of his inheritance came to be attested long before the conferment/permanent settlement of the land. In the case of Muhammad Siddique and 2 others v. Muhammad Sharif and 2 others 1992 SCM R 2260, the Supreme Court of Pakistan relying on the ration of its decision in the case of Zafarullah and 20 others v. Muhammad Siddique and others PLD 1980 SC 76, proceeded to hold that in the case of non-confirmed allottee his inheritance would be governed by para.46 of the Punjab Rehabilitation and Settlement Scheme and it was held that the question of inheritance was not open to be agitated before the Civil Court. In the present case, Jalala died even before the allotment of land. The inheritance mutation was attested in the year 1954 and further appeals and proceedings were in continuation of the same, ultimately culminating in the order of the Additional Commissioner, Lahore, dated 17-5-1969 The Civil Court, therefore, had no jurisdiction in the matter. I also note that the learned Additional District Judge has acted as if he was hearing a regular appeal against the order of the Additional Commissioner. This was not in his domain. He had only to see as to whether the Additional Commissioner had the jurisdiction to pass the order or not and as held by the Supreme Court of Pakistan in the case referred to above, the matter would be decided in terms of the said scheme by the said authorities and a Civil Court was debared from entertaining or deciding the said question. Needless to refer to the case of Ahmad Din v. Muhammad Rafi and others PLD 1971 SC 762.
9. For what has been stated above C.R. Is allowed, judgment and decree dated 22-12-1984 passed by the learned Additional District Judge, Kasur are set aside and thus passed by the trial Court on 11-7-1981 are restored. No order as to costs.