1. The brief facts out of which the present writ petition arises are that the original owner of the land in question was one Saleh Muhammad sbn of Mian A.I Muhammad. Saleh Muhammad solemnised marriage with Mst. Ghulam Jannat and Mst. Zubaida. The aforesaid Saleh Muhammad executed a registered will qua his entire property in the year 1928 in the following terms:------'
(i) In case there was male issue from any of his two wives, the property would vest in the surviving son/sons and the widows would get land for subsistence;
(ii) If there was no male issue, the property would vest in the surviving son/widows for lifetime or till remarriage; and
(iii) On the death of surviving widows the property will be divided amongst the petitioners; on the death of the surviving widow, the property will be divided amongst Muhammad Bakhsh, Ahmad Bakhsh, Mukhtar Ahinad and Sheikh Ahmad.
2. The original owner Saleh Muhammad died in the year 1945 and was survived by his two aforesaid widows. The aforesaid Mst. Ghulam Jannat widow of original owner died on 3-1-1968. Inheritance Mutation No.291 was sanctioned by the Revenue Officer/Tehsildar on 21-6-1962 in favour of the legal heirs in terms of the following shares:------
(i) Mst. Zubaida widow 1/12th share
(ii) Present petitioners 1/3rd share
(iii) Rest in favour of reversioners.
3. Two appeals were filed against the aforesaid year before the Deputy Commissioner/ Collector, one by the present petitioners and the other by the reversioners. The learned Collector accepted the appeal of the reversioner and entire estate was given to reversioner on 28-8-1962. Present petitioners being aggrieved filed appeal before the Commissioner, Sargodha Division, Sargodha who accepted the appeal of the present petitioners vide order, dated 22-2-1963 and the entire land of late Mst. Ghulam Jannat was given to the present petitioners. The reversioner being aggrieved filed revision before the Member, Board of Revenue, who, accepted the same vide order, dated 24- 7-1963. The present petitioners being aggrieved filed Writ Petition 943 of 1963 which was dismissed vide order, dated 6-6-1974. Mst. Zubaida died in the year 1970. Inheritance Mutation No.645 qua her land was sanctioned by the Tehsildar/Revenue Officer concerned on 3-1-1973, according to Shariat Application Act, 1962 regarding the landed property held by Zubaida Khatoon widow as life estate.
4. The present petitioners being aggrieved filed an appeal before the Collector who dismissed the same vide order, dated 26-12-1978. The present petitioners being aggrieved filed appeal before the Additional Commissioner, Sargodha Division Sargodha. The appeal was accepted vide order, dated 6-12-1981. The respondents/ reversioners being aggrieved filed revision before the Member, Board of Revenue who accepted the same vide order, dated 19-3-1984, hence the present writ petition.
2. The learned counsel of the petitioner submits that impugned order of the Member, Board of Revenue is without lawful authority as the learned Member, Board of Revenue wrongly relied upon sections 4 and 5 of the West Pakistan Shariat Application Act, 1962 whereas the case of the petitioners is fully covered under section 3-A of the aforesaid Act. The learned Additional Commissioner rightly relied upon section 3-A and decided the appeal to favour of the petitioners but the learned Member, Board of Revenue did not consider section 3-A of the aforesaid Act, therefore, order of Member, Board of Revenue is not sustainable in the eyes of law. He further submits that Member, Board of Revenue decided the case against the petitioner in violation of the law laid down by this Court in Mst. Alam Khatoon's case PLD 1965 Lah.
73. He further submits that the petitioners became owners of the land in question in pursuance of the will in question on the death of Mian Saleh Muhammad and that being so section 4 of the Shariat Application Act, 1962 is not applicable to the present case.
5. The learned counsel of the respondents submits that writ petition is not maintainable on the basis of the following principle laid down by the superior Courts:--
(i) The Petition want resolution of disputed question of fact in ' Constitutional jurisdiction which is not permissible in the eyes of law. In support of his contention he relied upon the following judgments: Mst. Umtul Bano and other's case 2000 SCMR 81 and PLD 1982 SC 723.
(ii) Writ petition is liable to be dismissed on the principle of res judicata as the petitioner filed Writ Petition 943 of 1963 which was dismissed on 6-6-1974.
(iii) Land in question automatically vested to the legal heirs of the original owner by virtue of section 4 of West Pakistan Shariat Application Act, 1962. The judgment relied upon by the learned counsel of the petitioners is distinguishable on facts and .Law. The order of the Member, Board of Revenue is in accordance with the law laid down by the Supreme Court in Abdul Ghafoor and others's case PLD 1985 SC 407.
(iv) That petitioners have challenged the vires of the mutation against which writ petition is not maintainable. In support of his contention he relied upon 1983 SCMR 618, Bendict F.D. Souz's case 1989 SCMR .918.
(v) The Member, Board of Revenue has given finding of fact against the petitioners and this Court has no jurisdiction to substitute its own finding. In support of his contention he relied upon Shah Jehan and others' case 2000 SCMR 88. .
6. The learned counsel of the petitioners in rebuttal submits that principle of res judicata is not attracted as the earlier writ petition was decided against the petitioners on technical point. He further submits that subject-matter between the parties is not same. He further submits that will was executed by the original owner in the year 1928 and the original owner died in the year 1945, therefore, provisions of Shariat Law which was promulgated in the years 1948 and 1951 are not attracted and applicable in the, present case.
7. I have given my anxious consideration to the contentions of the learned counsel of the-parties and perused the record myself. The following are the admitted facts between the parties:--
(i) 'Mian Saleh Muhammad is the original owner of the land in question;
(ii) He solemnized marriage in his lifetime with Mst. Ghulam Jannat and Mst. Zubaida;
(iii) Died issuless on 4-3-1945;
(iv) Mst. Ghulam Jannat Bibi died in 1961 and the land which was held by her, finally reverted to the respondents by the order of the Member, Board of Revenue. Petitioners filed Writ Petition No.943 of 1963 which was dismissed on 6-6-1974.
8. It is pertinent to mention here that the writ petition was dismissed by this Court on the ground that the petitioner should avail remedy available to them before Civil Court as disputed question of fact are likely to arise for determination. The petitioners did not file any suit. Meaning thereby the order passed by the Member, Board of Revenue against the petitioners on 24-7-1963 is final to the extent of land owned by Mst. Ghulam Jannat. Subsequently, Mst. Zubaida died in the year 1970 and the land owned by her was also reverted to the respondents by the, order of the Member, Board of Revenue, dated 19-3-1984. The aforesaid fact clearly reveals that the issue is the same which has been finally decided earlier by the Member, Board of Revenue vide order, dated 24-7-1963 qua Mst.
9. Ghulam Jannat widow of late Mian Muhammad Saleh. In the present controversy the land was owned by second widow which is in dispute. The controversy between the parties 'is the same and this Court has laid down principle that writ petition is not maintainable in the earlier round of litigation in the aforesaid writ petition as the disputed question of fact could not be decided in Constitutional jurisdiction. I am not inclined to take different view keeping in view the principle of consistency as per principle laid down by the Honourable Supreme Court in Muhammad Muzaffar Khan's case PLD 1959 SC 9. The circumstances and facts qua both the cases are same and this Court -in the earlier round of litigation laid down aforesaid principle and observed as under:-- "This might be treated as only exception to the general rule with in which the present case fall is that in case of mutation adequate alternative remedy by way of civil suit is available, therefore, the writ petition is not competent."
10. The aforesaid principle is in accord with the law laid down by Honourable Supreme Court in Muhammad Younas's case 1993 SCMR 618, therefore, writ petition is not maintainable and the petitioners have alternate remedy by filing civil suit before the competent Court. In this view of the matter I am not inclined to give any finding qua the other contentions raised by the learned counsel for the parties so that the case of the either party may not be prejudiced.