Brief facts in the instant Regular Second Appeal are that land measuring 27 Kanals and 13 Marlas comprising of Khasra No,698-699, Khata Khatooni No,65/252-253 entered in "Missal Haqiyat" for the year 1910-1911 was owned by an occupancy tenant Ahmad son of Mandoo, who, died issueless. The mutation of his occupancy rights was sanctioned by the Revenue Assistant in favour of Mst. Begum Bibi, the sister of Ahmad and daughter of Mandoo. The plaintiffs Nos. 1 to 3, 5 to 8 and predecessor of the plaintiffs Nos. 4, 9 to 13 aggrieved by the said mutation filed a suit for possession of the land stating that Ahmad the occupancy tenant had died issueless and the occupancy rights in the said land had extinguished, they be given possession of the suit land. They also averred that Fateh Muhammad the defendant No,1 was not a legal heir of Ahmed deceased and as such was incapable of inheriting the occupancy rights of Ahmad deceased. The plaintiffs were the proprietors of the suit lapd. Suit for possession was decreed by the then learned Senior Civil Judge, Gujrat vide judgment and decree dated 8-8-1955 observing that under section 59 of the Tenancy Act no right of succession was given to the defendant No,1 and the defendant No,1 was not a limited owner. Aggrieved by this order Mst. Begam Bibi the sole defendant filed an appeal. The learned Additional District Judge vide judgment and decree dated 31-10-1955 held that Mst. Begam Bibi defendant held the occupancy rights in the said land for her life only because she had been allowed td hold as such by the then proprietors of the suit land. Mst. Begum Bibi during her holding gifted the suit land to Muhammad Fazil, Niaz Ali and. Asghar Ali son of Abdullah etc., which was challenged by the plaintiffs proprietors being based on collusion and fraud. They also challenged the consent decree. Under that consent decree the Mutation No,4188 was sanctioned on 3-3-1964.
The plaintiffs also challenged the mutation through civil suit stating that in appeal the status of Mst.
Begam Bibi was determined as limited owner till her life and she could not alienate the said property through gift and the consent decree in this respect all the entries in the mutation are illegal. In this suit defendant No,5 Bashir Ahmed did not file the written statement despite providing sufficient opportunities so the case was closed to his extent. The defendants Nos.1 to 4 in their joint written statement admitted that Ahmad son of Mandoo was the occupancy tenant of the suit land, who denied that the plaintiffs or their predecessor i,e, Muhammad son of Sahibdad was the owner of suit land. They also admitted that his right of-the suit land after the death of Ahmad deceased devolved upon defendant No,1 Mst. Begum Bibi and plaintiff filed a suit against the said mutation, which was decreed but the said decree being impugned in the appeal was reversed and defendant No,1 Mst. Begum Bibi held the suit land as absolute owner because she has deposited the .Compensation under the Tenancy Act, which was duly received by the plaintiffs, therefore, the gift made by her in favour of defendants Nos.2 to 4 is legal one. They also pleaded that the defendant No,5 who was one of the proprietors of the suit land had filed a suit in respect of this very gift against the present defendant, but the same was dismissed, therefore, the present suit was barred by res judicata. They also averred in the written statement that plaintiffs had received the compensation of the suit land deposited by the defendant No,1 and they are estopped by their conduct to file the present suit and even if the defendant No,1 is said to be a limited owner, she has become the full owner of the suit land by way of adverse possession for a period of more than 12 years. The following issues were framed on the pleadings of the parties:-
(i) Whether Begum Bibi was the full owner? If so its effect?
(ii) Whether the plaintiffs are estopped from filing the present suit?
(iii) Whether the suit is barred as res judicata?
(iv) Whether Begum Bibi was a limited customary owner and the Hiba and the subsequent decree are void, ineffective, inoperative, null and void?
(v) If Issue No,4 is held in the affirmative whether the suit is premature?
(vi) Relief. The learned Civil Judge vide judgment and decree dated 25-10-1971 decided Issue No,1 against Mst. Begum Bibi holding that vide judgment and decree passed by the learned District Judge dated 31-10-1955 between the same parties and on the same issues it was held that Mst. Begum Bibi was in possession of land as occupancy tenant for her life only and that she did not possess any better status. Issue No,2 about estoppel, issue No,3 res judicata, Issue No,4 whether Mst. Begum Bibi was a limited owner and Hiba and subsequent decree are void and inoperative and Issue No,5 were decided against the defendant and the suit was decreed. An appeal was filed by the defendant, which was accepted and the judgment and decree of the learned trial Court was reversed with cost vide judgment and decree dated 5-1.1-1973. This is a second appeal challenging the judgment and decree dated 5-11-1973 passed by the learned District Judge by virtue of which he set aside the judgment and decree passed by the learned trial Court.
2. The grounds of "appeal are that the learned District Judge misinterpreted the provisions of section 8 of the Punjab Tenancy Act, misapplied the same in the present case and that too in violation of law. Mst. Begum Bibi was not competent to take the benefit of section 114 of the Punjab Tenancy Act (ai amended) and could not deposit Zar-e-Malkana for acquiring ownership rights under the law. The learned District Judge misconstrued the law laid down in section 114 of the Punjab Tenancy Act and as such the learned District Judge failed to give fading on all issues and illegally set aside the judgment and finding of the trial Court, as there was no evidence on the record to show that respondent No,1 became the owner of the land in dispute after depositing the Zar-e-Malkana as found by the learned trial Court. The learned District Judge gave finding on no evidence. He has relied on Rabnawaz v. Jahana (PLD 1974 SC 210), Mst. Began v. Mst. Bai (PLD 1971 Lahore 567), Adam Khan and others v. Zarin Shah and others (1992 SCMR 1771), Ali Begum and 2 others v. Zardad Khan and others (1994 SCMR 1140), Ghulam Muhammad v. Mst. Amiran Khatoon etc. (1987 SCMR 1232) and Sardar Muhammad Yousaf etc. v. Government of Pakistan (PLD 1991 SC 760).
4. Learned counsel for the respondents submitted that he admits that a chain of authorities by the learned superior Courts have established that limited owner cannot alienate the entire holding and she can only alienate the property to her extent. But each case stands on its own footing. The present suit is not filed by the legal heirs of the deceased Mst. Begum Bibi respondent. It is filed by the original proprietors of the land. During the pendency of suit as well as the appeal since devolving the occupancy rights to Mst. Begum Bibi no legal heir has come forward with the claim that he has been affected by the alienation of property. When the present appellants consented and admitted that Mst. Begum Bibi was the sister of last occupancy tenancy holder and when they accepted the Malkana Mst. Begum Bibi had become full owner even by virtue of section 114 of the Punjab Tenancy Act she has become absolute owner. As all these judgments apply to the rights of the heirs of the limited owners and not to the proprietors of the village whose whole land becomes extinct when the property is devolved upon Mst. Begum Bibi and she has paid Malkana to original owner, therefore, the present appellants have no locus standi to challenge the transaction of gift to the heirs of Mst. Begum Bibi as intervention of section 114 has taken away their right, therefore, the judgment passed by the learned District Judge is perfect as the appellants are not the reversions, they are the original owners and all the cited judgments do not apply to them.
5. I have heard the learned counsel for the parties and perused the record. According to the facts and :circumstances of the case the last occupancy tenant Ahmad died on 22-12-1945 and mutation of occupancy rights was sanctioned by the Revenue Authorities in favour of his sister Mst.
Begum Bibi as the said occupancy tenant was issueless. The appellants/predecessors are proprietors of the disputed property. Both these facts are admitted in two rounds of litigation between the parties at the time of extinction of tenancy rights under section 114 of the Punjab Tenancy Act when proprietary rights were conferred upon the occupancy tenant and when Mst.
Begum Bibi after being conferred with the proprietary rights deposited the price and Malkana alienates the property through the gift-deed in favour of her maternal-grand-issues.
6. I have also perused the judgments produced by learned counsel for the appellants. After perusal of all these judgments it is settled beyond any doubt that a widow after conferment of proprietary rights cannot alienate the entire holding to the detriment of her legal heirs but each case stands on its attending circumstances. In the present case none of her legal heirs has come forward and challenged the alienation of entire holding through gift by Mst.Begum Bibi. The gift is challenged by the proprietors of the disputed property. Their right became extinct at the time when the mutation of last occupancy tenant was sanctioned in favour of Mst. Begum Bibi and whenafter incorporation of section 114 of the Punjab Tenancy Act the proprietary rights devolved upon the occupancy tenants and she deposited the entire price. Since the disputed gift was the alienation of entire holding in favour of her maternal-grand-issues and no legal heir came forward that she could only transfer or alienate the property to her extent and not the entire holding, therefore, all these judgments cited by learned counsel for the appellants do not apply to the present case. Though from the chequred history of the case owners of the disputed property were challenging the mutation of occupancy tenant in favour of Mst. Begum Bibi through civil suit and then consenting in the appeal about her right as 'limited owner' till life but they did not challenge the conferment of the proprietary rights upon Mst. Begum Bibi when section 114 of the Punjab Tenancy Act came into being the provisions are quoted below:-- "Extinction of occupancy tenancies.--(1) Notwithstanding anything contained in any law for the time being in force, including this Act, no person shall, after the coming into force of the Punjab Tenancy (Amendment) Act, 1952, acquire or have occupancy rights in any land under any excitement or contract or any decree or order of any Court or other authority and the existing occupancy rights in respect of all lands other than lands owned by Government or by any person who under the law for the time being in force is an evacuee, shall on the coming into force of the aforesaid Act, be extinguished, and the land comprised in a tenancy so extinguished shall vest as hereinafter provided.
7. Keeping in view the facts and circumstances of the case, the law on this point and the cited judgments it is rightly held by the learned Appellate Court that Mst. Begum Bibi had become absolute owner after the extinction of rights on proprietors and could alienate her entire holding in the absence of any legal heir challenging the same. Instant Regular Second Appeal is dismissed.
No order as to costs.