FAZAL JAN Versus ROSHAN DIN

1. MUHAMMAD AFZAL ZULLAH, CJ.--This appeal through leav of the Court has arisen out of a land inheritance case.

2. The facts and circumstances including the points for examination, as stated in the order for grant of leave to appeal, are as follows:

3. "Leave to appeal has been sought by Mst. Fazal Jan plaintiff/petitioner; against the dismissal by the High Court, of her Civil Revision. It has arisen out of her suit for declaration relating to inheritance. It was dismissed. The appeal also failed.

4. The petitioner's claim was that she had inherited the suit property through her father Abdur Rehman who was the real paternal-nephew of Fazal Din, the original owner. The respondents' plea, as it appears from the sketchy facts brought on record of this petition, was that the petitioner had nothing to do with Fazal Din. It was also held so by the High Court on account of discrepancies in this behalf in various statements made by the petitioner. Another plea raised was that -the respondents' side was the owner by virtue of the mandatory operation of the law relating to extinguishment of occupancy tenancy and if that is accepted the petitioner would have no case. Question of limitation was also raised which was decided against the petitioner by the learned lower Courts."

5. After hearing the petitioner, at some length, she tried to show her connection through her father directly with Fazal Din. He, it seems was the occupancy tenant. We summoned the record also but it is clear from its examination that the case was badly conducted not only from the petitioner's side but also from the respondents' side. All the relevant documents were not brought on record. The trial Court was not denuded of power to summon all the necessary Revenue Record and also to summon the Patwari so as to supply omissions from both sides. It was also the duty of the two higher appellate Courts. It seems that it was an appropriate case for exercise of power under Order XLI, Rule 27, C.P.C. for bringing on record additional evidence. The suo motu exercise of this power would also have been fully justified in the facts and circumstances of the case. This is demonstrated by the fact that petitioner examined two witnesses besides herself to support her claim regarding her possession of the suit land and agreement Exh. P2 was also placed on record showing that she was in possession of the land which was with one Misri son of Zina Pathan on contract cultivation basis and that he had similarly its possession under her father. P.W.3 Khairullah had supported the petitioner but P.W.2 made a short statement saying that he had earlier made a statement in favour of the petitioner and that he had nothing more to say. As against this the evidence led from the respondent side is the statement of Mujahid Khan defendant who deposed that he had pre-empted the sale of this land and had obtained pre-emption decree in that behalf. And for this reason only, according to him, the petitioner/plaintiff had no connection with the land. On this the counsel for the defendants closed the evidence with the following statement:

6. On the contrary the counsel for the plaintiff had not closed her evidence because he had stated as follows:

7. ?

8. The original record of the trial Court shows a miserable jumble of papers which also, it is possible, might have resulted in miscarriage of justice. It is high time that the Chief Justices of the High Court may look into this sorry state of record maintenance by the Civil Judges when conducting the trials. The Registrar of this Court will after carefully noticing the flaws in this behalf in the present case address a separate letter to the Registrars of all the High Courts. And if need be the subject may also be considered in the next meeting of the Chief Justices.

9. $e that as it may, after having the experience of hearing the petitioner in person it is not surprising that her case also has not been properly handled. She appeared in person before this Court as well as before the First Appellate Court. It is almost impossible to get any coherent picture from her jumbled up submissions. And that also explains the so-called discrepancy pointed out in the High Court in her version about her connection with Fazal Din--whether it was through her father or uncle.

10. That however should not have deterred the Court or higher appellate Courts from digging out and discovering the truth and reality. The petitioner has at least made a claim that she got the property from her grandfather Fazal Din whether real or through her own father or a predecessor grandfather through a paternal-uncle. On the other hand respondent's case starts and ends with Mst. Piari who no doubt is mentioned as widow of Fazal Din; but it is not clear as to whether she got the property from Fazal Din or through some other source. If it was through Fazal Din then the question of the character of Mst. Piari's estate should also have been thoroughly examined. And in that context the reversionaries of Fazal Din might haw. been found out. The petitioner was one of the claimants in this behalf with further claim and material in her support that she remained in possession of the land. There is another circumstantial support for the petitioner's case; namely, there were abrupt entries in the record of rights in the name of Mst. Piari in 1961-62 = there is no link of the suit land with her prior thereto. It appears that everything happened in a haste may be at some stage indecent, as well. There was mutation of ownership on the basis of what has been described in one of the impugned judgments as statutory process. There was another mutation of gift thereafter. There were sales also one after the other and it all culminated then in a pre-emption decree it is not known in what circumstances; whether, through contest or consent. A strong possibility cannot be excluded that a woman like the petitioner as we saw her in Court, being unable to manage and hold and protect her property, others might have taken undue advantage of her incapacity. For all these and other related reasons we consider it a fit case for grant of leave to appeal.

11. The record shall be prepared meticulously with the assistance of the counsel for the parties.. The petitioner, it is apparent from appearance, is incapable of conducting this complicated case herself; therefore, it is in the interest of justice that she should also be provided with the assistance of a competent experienced civil lawyer. This assistance (it is further emphasised) to the lady would also be deemed to be in pursuance of fundamental right contained in Article 25 clause (3); wherein an assumption has been made that the "State" shall make special provision for the protection of women and children. The protection here does not only mean the protection of the body but also the rights. These rights include the property rights. Although the word "State" here, prima facie, does not include judiciary as it is not included in the definition in this behalf in Article 7 of the Constitution yet in the peculiar context of Article 25(3) "the State" would here also include the judicial functionaries. The question of protection of the rights of women and children arises almost in every case wherein they or either of them ate involved. Accordingly the "State" her- would include the Presiding Judges who hear and decide such like cases- Additionally the definition in Article 7 would not prevent a Court from directing the State to perform the. function visualised in Article 25 (3). Thus in both senses; namely, contextually as well as by statutory definition, the petitioner can be provided with legal assistance. through engagement of a competent counsel. He should be able to sort out the confusion created mainly by the incapacity of the woman/petitioner who as stated by her has none to help and look after her affairs. We order accordingly that the counsel shall be engaged at State expense.

12. The question as to why she should not have been provided assistance from free legal aid agencies it suffices to observe that. they are not at all up to the mark and the purpose underlying Article 25 (3); which would not be served by recourse to such like free aid alone, see the case of Mst. Zubaida Cr. Appeal No. 18 (S)/1988, convict of the offence of Zina (Enforcement of Hudood) Ordinance, 1979. Her case was similarly mismanaged and on this discovery on a jail petition the Supreme Court had granted special leave to appeal.

13. The petitioner seems to be a pauper. There shall be no security for costs.

14. This appeal shall be heard at Peshawar. The office to suggest a panel of lawyers from which the learned counsel would be selected to assist the Court on payment of his fee as already ordered by the State."

15. In obedience to the direction regarding the appointment of lawyer, as a measure of free legal aid to be provided by the State, Mian Muhammad Younis Shah was appointed under the orders of this Court. He not only put in considerable efforts to reconstruct and correctly read the record available in this Court, but also, as stated by him, managed to examine the record of the lower Courts. His diligence and sense of duty in this behalf has been appreciated in open Court.

16. According to his reading of the record, with which we have absolutely no reason to differ, Fazal Din, the original so-called owner of the suit property, was in reality an occupancy tenant under section 5 of the Punjab Tenancy Act, 1887, as it was applicable in the Province of N.-W.F.P. He amongst other heirs left Piari as widow. It seems that she took over the tenancy as widow's estate. On account of change in the law relating to occupancy tenancies brought about in 1950, a mutation was attested in 1952, whereby the occupancy tenancy by statutory dispensation got converted into the normal ownership estate but with the ? rider that Piari Jan held this estate also as a limited owner. There are two reasons for treating this as only a limited estate; firstly, this question came up before the superior Courts and it was held that widows in the position of Piari Jan would only hold limited estate--see Miskin and another v. Mst. Hassan and others PLD 1968 ? v. Mst. Ghulam Sakina and another PLD 1982 SC 1. It was held that the customary constraints continued to remain attached to such like estates of the widows. Secondly, as explained by the learned counsel the rule of inheritance in ? such like cases as introduced in the Punjab in 1948 and in the Frontier in 1935 regarding normal ownership rights in agricultural land was introduced in ? N--W.F-P. regarding the occupancy rights in 1939 by the Punjab Tenancy N_-W_F.P. (Amendment) Act, 1939. The inheritance was to be governed by the Rules of Muslim Law. In the Punjab also such a change regarding occupancy rights was subsequently introduced. As a result of the aforenoticed statutory dispensation and/or the dispensation by the precedent law Mst. Piari, on the extinguishment of the occupancy rights and creation of ownership rights could inherit only 1/4th from Fazal Din's estate as widow's share. But this law was not followed by the Revenue Authorities. They illegally attested a mutation in favour of Mst. Piari Jan, as if she would inherit the whole of Fazal Din's estate. After this mutation in 1952, in almost, in a rush Mst. Piari Jan tried to get rid of the suit property as if it carried some defect or taint. She made a gift thereof in favour of Ghulam Rabbani. He also acted in the same manner and sold it to Maqsoodur Rehman by another subsequent mutation. Maqsoodur Rehman also did not want to retain the property and through an arrangement involving the right of pre-emption it passed on in 1975 to Mujahid. All this shows what the appellant Mst. Fazal Jan deposed in her statement, namely, that they were all knit in conspiracy to deprive her of the right of inheritance in Fazal Din's estate.

17. Coming now to the question as to whether she has any connection with Fazal Din. The matter is very simple. Her father is Abdur Rchman. He, according to her repeated confident assertions (she was examined twice) was real nephew i.e. brother's son of Fazal Din. Not only this she asserted and gave details of how Abdur Rehman and she herself remained in possession of the property; how some tenancy was created and how produce was being distributed. She also remembered details of certain crops which her father had reaped. Although she was examined twice in order to test her veracity with regard to the details of possession and her claim that she was the daughter of Abdur Rehman, who was related (paternal-nephew) to Fatal Din, she was not challenged through cross-examination in her deposition. It seems absolutely clear from the record that her assertion in this behalf was not in controversy and was thus nut challenged.

18. In the light of the above discussion there arc two lines of the factual aspects of this case. While on the one hand Mst. Piari and her successors-in-interest would not be able to hold more than 1/4th share, Mst. Piari had as widow of Fazal Din; the remaining 3/4th would obviously go to the other heir of Fazal Din deceased. The only claimant in that line of inheritance as successor to Fazal Din is the appellant Mst. Fatal Jan, who is the daughter of the nephew of Fazal Din. Thus she would get 3/4th while Mst. Piari and those deriving title from her would get 1 /4th.

19. Accordingly, as a result of these findings, this appeal merits to be accepted and a decree can be passed in favour of Mst. Fatal Jan to the extent of 3/4th of the suit property. It needs to be clarified that the record is not clear whether Abdur Rehman left any other heir than Fazal Jan, or for that matter Fazal Din had any heir other than Abdur Rehman. None has appeared from amongst such like persons before this Court, so as to make claim on the basis of inheritance of Fazal Din. If, and when there is any such claim of any other heir of Fazal Din made against the appellant Mst. Fatal Jan, it will have to be investigated and decided in accordance with the law.

20. The only question which remains to be decided is one of limitation. According to the learned counsel, the period of limitation would be 12 years under Article 141 after the initial disposal of the property by Mst. Piari by way of gift in 1962. And because the suit was filed in 1973 within the period of 12 years, therefore it was within limitation. This reasoning in so far as it goes does resolve the question of limitation, but as recently held by this Court in the case of Ghulam Ali and others v. Mst Ghulam Sarwar Naqvi PLD 1990 SC 1 it was not necessary for the appellant to have sought the annulment of the mutation concerned. The cause of action arose in her favour repeatedly when her inheritance right was denied or usurped by the respondents'. side at various stages. Accordingly, the appellant's suit was not hit by the bar of limitation.

21. In the light of the foregoing discussion and subject to the observations relating to any other heir of Fazal Din or Abdul Rehman this appeal is allowed. Mst. Fazal Jan appellant's suit to the extent of 3/4th of the suit land is decreed. There shall be no order as to costs.

22. As a counsel engaged at State expense, Mian Muhammad Younis Shah shall be paid adequate/reasonable fee for his commendable performance in this case.

23. M.BA./F-249/S ???????????? Order accordingly.