The petitioner through this civil revision has assailed the legality and propriety of the judgments and decree of the trial Court dated 19-2-1991 and that of the First Appellate Court dated 27-9-1990 by virtue of which the suit of the respondents, plaintiffs before the trial Court, was decreed by the trial Court and the appeal filed by the present petitioner before the first appellant was also dismissed.
2. Briefly stated the facts are that Abdul Majeed and others filed a civil suit for declaration against Abdul Ghani, the present petitioner, with the assertions that they are successors-in-interest of Hussain Bakhsh. It was alleged that after the creation of Pakistan Hussain Bukhsh alongwith his entire family migrated to Pakistan and came to Faisalabad. In these days an Abadkari Scheme was made in force for landless refugees in Thal and the said Hussain Bakhsh was selected for the purpose of allotment of and in Thal. Ultimately allotment of land as detailed in the headnote of the plaint in Chak No,4 (present number is 24) Khushab was made. It was further stated in the plaint that the plaintiffs at the time of death of Hussain Bukhsh were minors and the entire management of the family was in the hands of the defendant 6/7 prior to the filing of the present suit, the mother of the parties was also died and the plaintiffs demanded their ownership share in the suit land but the defendant refused and it transpired that the defendant got the allotment of the land effected in his favour. The petitioners/respondents submitted an application for correction of the record, which was dismissed by the Collector, hence the said suit. The suit was resisted and contested by the present petitioner/defendant and the trial Court framed following issues:-
(1) Whether the plaintiffs have no cause of action and locus standi to bring this suit? OPD
(2) Whether the suit is time-barred? OPD
(3) Whether the suit is bad due to non- joinder of the necessary parties, if so its effect? OPD
(4) Whether the form of the suit is incorrect, if so, its effect? OPD.
(5) Whether the defendant is entitled to special costs under section 35/A, C.P.C.? OPD
(6) Whether the Hussain Bakhsh son of Manik predecessor-in-interest of the parties was originally allottee in possession of the suit property mentioned in the headnote of the plaint? OPD.
(7) If issue No,6 is proved in affirmative, whether the proprietary rights of the suit property were conferred upon the defendant illegally, unjustifiably and unauthorizedly and registered Sale-deed No,591/1, dated 11-11-1987 and Mutation No,56 dated 26-11-1987 are illegal, against the facts, collusive, fraudulent and void upon the rights of the plaintiff for the reason stated in the plaint? OPP
(8) Relief.
The trial Court after recording the evidence of the parties gave them an opportunity of hearing and then came to the conclusion that the suit of the plaintiff/present respondent was liable to be decreed and decreed it accordingly. The present petitioner/defendant feeling himself aggrieved challenged it before the First Appellate Court from where it met the same fate. The petitioner has filed the present revision and has challenged the judgment and decrees of both the Courts below.
3. Learned counsel for the petitioner has submitted that the land was in possession of Adbul Ghani and in accordance with the provisions of Peasant Grant Scheme, 1955 the land could be given on lease or to be allotted was in accordance with The Thal Development Act and has placed reliance in this regard on the said Act. It was also submitted that the said Abdul Ghani was provisionally allotted this land on 13-9-1955, which was approved on 27-11-1958. Hussain Bakhsh, father of both the parties,, admittedly died on 28-10-1949. It is submitted that there is no proof of Hussain Bakhsh being in possession of the property in any manner, either as a tenant or as an allottee, except Exh.
P.1. It is submitted that even otherwise from the beginning Abdul Ghani exclusively was in possession of the property and remained in possession of the property and on the basis of this possession and making the land cultivable, he was allotted this land. Learned counsel further relied on Fard Taqseem, Exh.P.6, which clearly shows that Hussain Bakhsh has died. The property is in possession of Abdul Ghani, who is cultivating it and it has been allotted in his name. The names of the present respondents, plaintiffs before the trial Court do not figure anywhere. Learned counsel has also relied upon the evidence of P.W.2. Talib Hussain and that of D.W.1 Lal Din, D.W.2 Wali Muhammad and Abdul Ghani as D.W.3.
It is also submitted by the learned counsel for the petitioner that an application for correction of the record about the alottment of land in suit was submitted by the respondents/plaintiffs upon which after giving an opportunity of hearing to the parties, the Collector has rejected the application, which is Exh. P.11 on the record. Learned counsel in support of his contention placed reliance on PLD 1973 Note 148 at p.225 that the ultimate authority with regard to the allotment of the land belonging to the Provincial Government is the Collector and that if a person does not take possession of the property belonging to the Government as a tenant under the Colonization of Government Land Act then no relationship in between him and the Government exist and has placed reliance on Muhammad Shafi v. Hayat Khan (PLD 1978 Lahore 1228). With these submissions he has prayed that the judgment and decrees of both the Courts below are against facts and law, hence liable to be set aside and the revision petition be allowed.
4. On the other hand, learned counsel for the respondents have submitted that in view of the provisions of section 19-A of Colonization of Government Lands Act on the death of a Muslim tenant succession is to be devolved upon in accordance with Muhammadan Law and no nominee or other person is entitled to inherit this tenancy. He has placed reliance upon the case of Manzoor Ahmad v. Mst. Salman Bibi (1998 SCMR 338) and Fazal Shah 'v. Muhammad Din (1990 SCM R 868) to argue that Hussain Bakhsh was the original tenant in possession of this property owned by the Provincial Government by way of allotment of this land in his favour and on his death all his legal heirs were entitled to inherit it. It is added that the judgment and decrees of the both the Courts below are liable to be maintained.
5. After having heard the learned counsel for. both the parties and perusing the material available before this Court, the fact which requires determination and consideration are that whether Hussain Bakhsh, father of both the parties, to the suit was the allottee of this land, whether he ever took possession of this property as a tenant under the Provincial Government as provided under the Colonization, of Government Lands Act, whether till the time of his death he remained in possession of the property as a Muslim Tenant and if he it was so whether the property in inheritable devolved upon all the legal heirs and if this is not so whether Abdul Ghani was in possession of the property in his independent capacity, whether he made the land cultivable, whether he was entitled to remain in possession of the land under the Thal Development Act, 1949 and was entitled 'to have the rights over the property under the Peasant Grant Scheme, 1955. The present respondents, who 'were plaintiff's before the trial Court, asserted their claim being the heirs of Hussain Bakhsh. The onus to prove this issue was on them. The respondents have simply relied upon Exh.P. I, Parchi Aarzi Kasht' which is in the name of Hussain Bakhsh. Apart from this no other document is clear with regard:to the proposition that Hussain Bakhsh had any link A with this property. The submission of learned counsel for the plaintiffs/respondents that on the death of a Muslim tenant, the issue with regard to that property is to be determined in accordance with Muslim Laws and no nominee is entitled to remain in pOssession or to have the allotment of the land: There is no cavil with the proposition of law laid down by the Honourable Supreme Court in the case of Manzoor Ahmad and Fazal Shah (Supra). Now the only question as above stated is whether Hussain Bakhsh was a Muslim tenant in possession of the property as observed above.
There is no cogent evidence to this effect that Hussain Bakhsh ever reached Khusab, Hussain Bakhsh ever took possession of the property as a tenant under the Government and he was ultimately allotted this property. The entire evidence particularly Exh.P.11, 'which is a document produced by the respondents/plaintiffs themselves is that it was Abdul Ghani who came to Khusab and took the possession of this property as a tenant under the Government and made it cultivable and was entitled for its allotment by remaining in possession even on 'the enforcement of Peasant Grant Scheme. The property in suit being the ownership of the Provincial Government, the ultimate authority to make allotment of this land is the Collector as held in the case of Sardar Muhammad Aslam Sial v. Government of Pakistan (PLD 1973 Note 148 at p. 225). It was Abdul Ghani who took the possession of the land as a tenant under. the Government in accordance with the formalities provided in the Colonization of Government Land Act and the relationship of owner and.tenant only existed in between the Government and Abdul Ghani as observed in the case of Muhammad Shafi (supra).
6. As it was for the respondents/plaintiffs to prove their case, they in view of the above said discussion have clearly failed to prove their assertions and version in the plaint. There was no material with the trial Court to have passed decree in their favour and there was also no material available with the First Appellate Court to have confirmed the findings of the trial Court and dismissed the appeal of the present petitioner. In this eventuality the judgments of both the Courts below suffer from illegality and material irregularity and that of misreading and non-reading of evidence on record, as such the resent revision petition is allowed. The judgments and decrees of both the Courts below are set aside and resultantly the suit of the respondents/plaintiffs before the trial Court is dismissed. No order as to costs.