This revision petition filed by the petitioners-plaintiffs challenges the concurrent findings of the learned trial Court dated 7-6-1994 and of the learned lower Appellate Court dated 28-7-1999.
2. The facts of this case are relatively straightforward. Dhuman son of Juma respondent No.1 was originally owner of the suit-land measuring 28 Kanals, 1 Marla situated in Mouza Mong, Tehsil Mandi Bahauddin. The said Dhuman sold the land to Mirza son of Taja on 15-6-1961 vide Mutation No.5720.
On the same date vide Mutation No.5727 Mirza son of Taja sold the A land to Khanu predecessor- in-interest of the petitioners-plaintiffs. The said sale by Dhuman was challenged by his only brother (also named Mirza son of Juma). It was the case of Mirza son of Juma that Dhuman had no legal necessity justifying the sale and also that the sale was without consideration. Both the pleas were rejected by the learned trial Court, which proceeded to dismiss the suit of Mirza son of Juma on 15- 9-1964.
3. Mirza son of Juma preferred an appeal, which was allowed by the learned Appellate Court on 6- 12-1965. It was held by the learned Appellate Court that there was no g legal necessity for the sale made by Dhuman. In the circumstances, the right of Dhuman's reversioners including his brother Mirza was determined by the appellate decree dated 6-12-1965.
4. Thereafter Khanu filed a suit on 28-5-1969 claiming his interest and possession in respect of the suit property. In the said suit Dhuman appeared and made a statement to the effect that he had no right, title or claim in respect of the property. It was further stated on his behalf that he was not in possession of the property. On this basis, the suit was dismissed by the learned trial Court on the ground that the predecessor-in-interest of the petitioners had no cause of action.
5. Thereafter on 6-4-1982 the petitioners-plaintiffs filed a suit, out of which the present petition arises. They sought declaration of title to the disputed land. The case of the petitioners-plaintiffs is that by virtue of Ordinance XIII of 1983 section 2-A has been incorporated in Act No.IX of 1948. By virtue of section 2-A Dhuman has to be considered as an absolute and unencumbered owner of the disputed property. In order to appreciate the argument of learned counsel for the petitioners, section 2-A is reproduced as follows:-- 2-A. Succession prior to Act IX of 1948.---Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim: (a)He shall be deemed to have become upon such acquisition an absolute owner of such land, as if such land had devolved on hint under the Muslim Personal Law (Shariat).
(b)Any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, in executable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act.
(c)All suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith. Provided that nothing herein contained shall be applicable to transaction past and closed where possession of such land has already been delivered under such decrees."
6. It is clear from the above statutory provisions that Dhuman was, indeed, to be treated as an absolute owner of the disputed property. As a consequence it follows that he could have sold the property with or without any necessity. In the circumstances, the title which was conveyed by Dhuman to Mirza son of Taja and by Mirza son of Taja to Khanu, the predecessor-in-interest of the plaintiffs was a valid conveyance by virtue of the above statutory provisions.
7. The two Courts below, however, have proceeded on the premise that the matter between the parties was a past and closed transaction on account of the appellate decree dated 6-12-1965 (Exh.P.3), wherein the right of Mirza son of Juma as a reversioner had been established. I am afraid the reasoning of the two Courts below is contrary to the provisions of section 2-A noted above. It is to be noted that even though the decree, which was passed in favour of the reversioners was in the field, the same became in executable on account of the provisions of subsection (d) of section 2-A noted above. The fact that Khanu might have filed a suit for possession in 1965 when the decree Exh.P.3 was passed, is wholly irrelevant in the circumstances of the present case, because the title vesting in Khanu could not have been assailed by Dhuman's brother particularly when Dhuman was alive in 1965 and remained alive even after the petitioners initiated the present litigation.
8. In view of the above discussion, it is clear that the two Courts below have proceeded on an erroneous interpretation of section 2-A. The impugned judgments and decrees are, therefore, set aside. The result is that the suit of the petitioners-plaintiffs shall be decreed as prayed for.
H.B.T./M-2191/L