AHMAD DIN vs MUHAMMAD SHAFI AND OTHERS

1. HAMOODUR RAHMAN, C. J.--This appeal by special leave arises out of a suit for a declaration to the effect that the appellant was the sole heir of one Allah Bakhsh and that the respondents herein had no right to inherit from him.

2. The said Allah Bakhsh, who was originally, a resident of Chak No, 16/GB, Tehsil Abob Garh, in Beekaneer State in India, migrated to Pakistan and was allotted 130 kanals and 16 marlas of land in village Tapiala Dost Muhammad, Tehsil Shandara, District Sheikhupura. He died on 11th August 1952, without a wife or any issue. After his death a mutation was attested under para. 67, Part II of the Rehabilitation and Settlement Scheme, on the 18th December 1953, in the presence of the appellant and by this order of mutation Ahmad Din was given 1/3 share, Muhammad Shafi son of Chiragh Din 1/3 share, Inayat 7/48 share, Mst. Jan Bibi 1/24 share, Aisha Bibi and Fatima Bibi 7/48 share. The appellant did not object to this mutation, hence, separate Khatonis were issued in the names of the appellant, Muhammad Shafi and Jan Bibi in equal shares without any objection on the 18th September 1954. RL-II also issued to the heirs so recorded. The Khasra Girdawaris since prepared also show that these lands are in the cultivation of Ahmad Din and others and not Ahmad Din alone.

3. Some eight years thereafter Ahmad Din filed an appeal against the said mutation alleging that he was the only heir being the son of a brother of the deceased Allah Bakhsh. The respondent No, 1, Muhammad Shafi, he alleged, was a son of Murad Bibi, a sister of the deceased Allah Bakhsh, who had, according to him, died before the establishment of Pakistan and was, therefore, not entitled to inherit. Similarly, respondents Nos, 2 to 5 who were the heirs of another brother of the appellant called Rahmat were not entitled, according to the appellant, to inherit as the said Rahmat had also died during the lifetime of Allah Bakhsh. This appeal was dismissed on the 12th May 1962, on the ground that it was hopelessly barred by time, by the Deputy Settlement Commissioner (Lands), Sheikhupura.

4. Thereafter, the appellant filed the declaratory suit from which the present appeal arises. In this declaratory suit he merely prayed for a declaratory decree and a permanent injunction for restraining the respondents from interfering with his possession. This suit was filed on the 30th May 1962 and was contested by the respondents mainly on the grounds that it was barred by limitation, that the civil Courts had no jurisdiction to entertain the suit and the suit as framed was not maintainable in the absence of any prayer for possession by way of consequential relief. The respondents also denied that either Rahmat or Mst. Murad Bibi had predeceased Allah Bakhsh.

5. The trial Court found that the suit was barred by limitation under Article 120 of the Limitation Act and that the civil Courts had no jurisdiction to entertain the suit by reason of the provisions of section 16 of the Rehabilitation Ordinance, 1948, and 12 (1) of the Pakistan Administration of Evacuee Property Ordinance, 1949 but came to the conclusion that since the parties were in joint possession, according to the Khasra Girdawari, the suit was maintainable in its present form. No decision was, however, given on the merits.

6. On appeal the Additional District Judge, Lahore, took the view that the civil Courts had jurisdiction to entertain such a suit because the Settlement Scheme gives no law of inheritance for allottees.

7. The inheritance has, therefore, to be decided on the basis of the general law. Similarly, on the ground of limitation the learned Additional District Judge overruled the trial Court. The suit was, accordingly, remanded back for decision on merits.

8. On Second Appeal the High Court reversed the findings of the Additional District Judge. It held that after the Khatonis and R. L. Its had been issued without any objection by the appellant a change of possession had taken place and, therefore, the finding of the trial Court that the parties were in joint possession was wholly erroneous in law. After the issuance of separate Khatonis each party was in separate possession of his respective share as recorded in the register RL-H and, therefore, it was incumbent on the appellant to ask for possession by way of consequential relief. The High Court also took the view that the suit as framed was not maintainable and that the civil Courts had no jurisdiction to entertain the suit. The High Court was of the view that since the mutation of inheritance was recorded in accordance with the paras. 46 and 46-A of the West Pakistan Rehabilitation and Settlement Scheme of 1957, the suit was hit by the provisions of section 16 of the Pakistan Administration of Evacuee Property Act, 1957, and was, therefore, barred. According to the High Court, the suit was also barred by limitation.

9. Leave was granted in this case to consider as to whether the High Court was right on the questions of law decided by it.

10. Learned counsel appearing in support of this appeal has contended that the jurisdiction of the civil Courts to entertain a suit of this kind had not been taken away either by section 13 or section 18 of the Pakistan Rehabilitation Act, 1956 or by section 25 of the Land Settlement Act, 1958, for, no question relating to the evacuee nature of the property fell to be decided in this case. All that was sought was a declaration that the appellant was the sole heir of Allah Bakhsh with a consequential relief of an injunction for restraining the respondents from interfering with his possession.

11. This contention is, however, now not tenable in view of the decision of this Court in the case of Mst.

12. Zainab v. Mst. Raji where it has been pointed out that the "Rehabilitation Authorities possess the necessary powers to hold enquiries into claims made by refugees and to decide all questions of inheritance, in accordance with the instructions issued by the Rehabilitation Commissioner (Lands) under the Rehabilitation Resettlement Scheme Punjab".

13. Reference was also made by this Court in this connection to the instructions contained in paras. 46 and 46-A of the Rehabilitation Manual to show that since the question of inheritance to right-1 holders, as Allah Bakhsh was in the present case, was also to be decided by the Rehabilitation Authorities, the matter was in their exclusive jurisdiction and, as such, a similar question could not be allowed to be agitated in the civil Courts.

14. In that case too, Mst. Zainab had filed a suit for a declaration that she was the sole heir of her deceased brother, who had died on the way to Pakistan and that, as such, she alone was entitled to receive whatever compensation was being paid or may be paid in Pakistan in respect of the holding of a deceased brother in India. There too a permanent injunction had been asked for, as in the case before us, for restraining the defendants therein from interfering with her rights. The suit was held to be barred under the provisions of sections 13 and 18 of Pakistan Rehabilitation Act of 1956.

15. To the same effect is the decision of a Full Bench of the West Pakistan High Court in the case of Umar Daraz Ali v. Khurshid Ali . There too it was held that the mutations sanctioned by the Rehabilitation or Revenue Authorities under paras. 46 and 46-A of the Rehabilitation and Re- settlement Scheme Punjab, which is simply a measure for the re-settlement of refugees in Pakistan, do not pertain to inheritance to the estates of deceased right-holders. This is in our view correct, we see no reason, therefore, to differ with the decision of the High Court that such a suit was not maintainable in the civil Courts.

16. We are also in agreement with the High Court that the suit was barred by limitation. The appellant could not take advantage of the fact that he had filed a time-barred appeal from the mutation proceedings, for extending the period of limitation.

17. The period spent by him in prosecuting such a time-barred appeal cannot be excluded in computing the period of limitation under Article 120 of the Limitation Act. The suit which was filed in 1962 to challenge an order of mutation made in 1953 was therefore, clearly beyond six years and was, therefore, barred by limitation.

18. The contention of the learned counsel for the appellant that the suit could not fail merely by reason of the fact that the consequential relief by way of possession had not been claimed is not altogether without substance. If his suit was otherwise maintainable and he was otherwise entitled to the relief it was open to the Courts to allow him to amend the plaint by adding a prayer for possession and paying the appropriate ad valorem court-fees and then to grant him relief even though he had not specifically asked for it. But in the circumstances of this case since we have come to the conclusion that the civil Courts had no jurisdiction to entertain the suit and the suit was also barred by limitation, it is unnecessary to go into this question. This appeal must fail on that account and is, accordingly, dismissed but there will be no order as to costs. PLD 1960 SC 229 PLD 1960 Lah. 834