Munir A. Sheikh, J.--This appeal by leave of the Court is direct against the judgment dated 27.9.1995 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur whereby on acceptance of revision petition, judgments and decrees of both the Courts below have been set aside and the suit filed by respondents decreed.
2. It was pointed out on the last date of hearing that Appellants Nos, 3 and 6 died in 1997 and 2000 respectively and learned counsel for the appellants got an adjournment to make an application for bringing on record their legal heirs. No such application has so far been made. Appellant No, 2 Rashid Ahmad who is present in the Court says that he informed the legal heirs of Appellants Nos, 3 and 6 who are his direct relations but they had not opted to join the proceedings. The interest of the remaining appellants being common with the deceased appellant, therefore, we would proceed to decide the appeal on merits.
3. Nabi Bakhsh deceased, predecessor-in-interest of parties owned land in India. He migrated to Pakistan on partition of the subcontinent. He made a will on 24.8.1953 in favour of respondents who were the heirs of his predeceased son Rehmatullah to the extent of half share in the land which he would have inherited had he been alive alongwith his other son Abdul Aziz who was alive. Nabi Bakhsh died in 1955. During his life time though land in dispute had been allotted to him temporarily but the same had not been permanently allotted in lieu of his claim about land left by him in India. On 1.5.1957 under Paragraph 46 of the Rehabilitation Settlement Scheme, the question of inheritance was decided by the Rehabilitation Authorities and on 23.12.1957, a formal mutation of inheritance of Nabi Bakhsh deceased of half share was sanctioned in favour of Abdul Aziz his living son and the other one half share was given to heirs of Rehmatullah his predeceased son on the basis of instructions issued by the Rehabilitation Authorities which provided that in a case where a right holder had died before filing of his claim about the land left by him in India, share in the inheritance would be given to predeceased son of such right holder which shall devolve upon his heirs.
4. Feeling aggrieved Abdul Aziz deceased predecessor-in-interest of he appellants filed appeal/revision petition before the Settlement ommissioner alleging that Rehmatullah was not entitled to inherit the property under the said instructions. It was dismissed by the said officer. A Constitutional petition was filed before the Lahore High Court which was accepted by holding that the conditions laid down in the instructions were not fulfilled as Nabi Bakhsh had died after filing of the claim and not before. Appeal was filed before this Court by the heirs of deceased Rehmatullah which was dismissed by upholding the findings of the High Court that the conditions laid down in the said instructions on the basis of which mutation of inheritance was originally sanctioned in favour of Rehmatullah pre-deceased son were not fulfilled.
5. In pursuance of these judgments of the High Court and Supreme Court, the Settlement Authorities took up the matter of correction of earlier mutation sanctioned giving share to heirs of Rehmatullah predeceased son and a fresh Mutation No, 437 by way of correction was sanctioned on 5.12.1987 and mutation of Inheritance No, 326 in favour of heirs of Abdul Aziz deceased as sole heir of Nabi Bakhsh was sanctioned.
6. The heirs of Rehmatullah feeling aggrieved filed civil suit from which this appeal has arisen for declaration that they were entitled to get 1/3rd share in the land of Nabi Bakhsh on the basis of will, therefore, the said mutation of inheritance was ineffective against their rights. Though in the written statement the question of execution and genuineness of will was also raised by the present appellants but the trial Court under Issue No, 11 held that execution of will had been proved. It was a registered will but effect was not given to it on the ground that the suit was barred by principle of resjudicata and also that the will was also not valid in view of law laid down in the case of Zafar Yab Ali and another v. Additional Rehabilitation and Settlement Commissioner and others (PLD 1968 Lahore 68).
7. Appeal filed by heirs of Rehmatullah was dismissed. Revision petition filed by them has been accepted through the impugned judgment dated 27.9.1995 against which this appeal by leave of the Court is directed.
8. We may observe that the learned Judge of the High Court in the impugned judgment has held that the parties argued the case on Issues Nos, 2 and 5 only which are reproduced as follows:-- "2. Whether the suit is barred by principle of res judicata ? OPD 1 to 6;
5. Whether the impugned will is against law and Shariat ? OPD 1 to 6".
9. In the memo of present appeal, the correctness of findings on Issue No, 1 has not been challenged. It has also not been pleaded that findings on Issue No, 11 of the trial Court were sought to be reviewed by necessary amendment that decree of dismissal of the suit passed in favour of the appellants should be maintained on the ground that execution of will or its genuineness had not been proved though they could do so without filing even objections. The findings on issue No, 11 recorded by the trial Court shall be deemed to have been accepted as correct, therefore, the same cannot be reopened and the present appeal has to be decided on the assumption that the execution and genuineness of the will is no more in dispute.
10. We have gone through the will and find that Nabi Bakhsh in clear terms had stated that he had land in India. In the inheritance of said land Rehmatullah pre-deceased son should be given (1/2) share. It has rightly been held by the learned Judge that under Paragraph 29 of Rehabilitation Settlement Scheme, a right-holder had valuable right of getting land allotted in lieu of his land left in India and his entitlement had to be determined in view of the special Jamabandis received from India. At the time when he made will in 1953 he had genuine claim duly verified against which he had been allotted land on temporary basis which was subsequently confirmed in his name under the Settlement laws. The principle laid down in the case of Zafar Yab (supra) was not applicable in the present case because the will in the said case was executed in 1944 in India qua land situated in India. In the present case will was executed in 1953 when Nabi Bakhsh was holding valuable right in the form of verified claim regarding the land left by him in India for which he was already holding land under his temporary allotment, therefore, property was available in respect of which he could make a will.
11.As to plea about applicability of principle of constructive res judicata, it may be mentioned that the same is not applicable to the facts and circumstances of this case. It is a case in which Rehabilitation Authorities were required under Paragrpah-46 of the Settlement Scheme to pass an order regarding inheritance of a claim holder which is a special law, therefore, only the question of inheritance between the direct heirs of the claim holder was the subject-matter of such proceedings and not the claims of strangers or third party. In these proceedings, direct heirs of Nabi Bakhsh could only be the parties and heirs of pre-deceased son who were treated as direct heirs under the instructions, therefore, it was not necessary for them to raise any claim under the will. It was, however, ultimately found in these proceedings that heirs of Rehmatullah could not under the said instructions as the conditions laid down therein had not been fulfilled as Nabi Bakhsh died after submission of the claim being the direct heirs as such the question which was directly and substantially in issue was whether heirs of pre-deceased son could inherit as heirs and nothing else. The claim based on a will could neither be raised nor decided in these proceedings the scope of which was limited. The claim based on the will being a third party claim was an independent matter which could be raised before the Civil Court for determination. The Settlement Authorities as observed above were not vested with the jurisdiction to entertain such a claim, therefore, another condition to attract principle of res judicata that previous Court should be a Court having jurisdiction to decide the question raised in subsequent proceedings was also not fulfilled.
12.For the foregoing reasons, we are of the considered view that the findings recorded by learned Judge of the High Court in the impugned judgment do not suffer from any legal infirmity, therefore, we find no force in this appeal which is accordingly dismissed. Parties are left to bear their own costs.