IQBAL Versus MUSHTAQ AHMAD

Facts giving rise to this petition under Article 98 of 1962 Constitu tion are that one Mst. Jhando widow of Miroo, a displaced person from East Punjab, on migration to Pakistan, settled in Chak No.72/GB, Tehsil and District Lyallpur. She filed a claim in respect of agricultural property left by her deceased husband in India. Her claim was verified for 34 kanals 11 marlas and the land in dispute was allotted and confirmed to her in satisfaction of her claim.

2. Mst. Jhando aforesaid died in 1960 and, on her death, Mutation No.193 of her inheritance was sanctioned on 26-6-1960 by Assistant Collector II Grade, 'Lyallpur, treating her as a limited owner. By means of this mutation, 1/4th of the property in dispute was given to Mst. Jhando or her heirs and the remaining 3/4th was given to Mushtaq Ahmad and others as collaterals of Miroo, husband of Mst. Jhando. Petitioners filed an appeal against the order, dated 26-6-60 which was accepted by the learned Collector, Lyallpur on 30-4-1961 and the case was remanded to A.C. II for fresh decision. On remand, A.C.II passed an order on 5-6-62 whereby 1/4th share of the property in dispute was given to the heirs of Mst. Jhando, 1/3rd of the remaining 3/4th share was given to the petitioners (it appears as collaterals of Miroo deceased) while the balance was given to Mushtaq Ahmad and others, respondents. Petitioners felt dissatisfied and again filed an appeal which was accepted by the learend Collector on 16-11-1962 and the case was once more remanded to A.C. II for fresh decision.. A.C. II decided the matter for the 3rd time on 5-6-1965 and this time he completely eliminated the petitioners, who again took the matter in appeal. Learned Collector who heard the appeal, took the view that it was incredible that Dooda and his sons would have died in quick succession and that only Mehdi Khan and Jiwan were alive at the time of death of Miroo. According to the learned Collector "the whole position deserved to be locked into in closer details". He, therefore, accepted the appeal vide order, dated 30-12-1965 (Annexure 'A') and remanded the case for 3rd time with the direction "that the Tehsildar should personally sanction the mutation afresh in the very chak to which this mutation relates. It would be a help if the pedigree table relating to the year 1909 to 1910 copy of which has been presented by the learned counsel for the appellant is also consulted while taking the decision".

3. Mushtaq Ahmad etc. respondents preferred an appeal against the aforementioned order of the Collector dated 30-12-65 and challenged the remand of the case for the 3rd time and it was contended that the mutation proceedings were of summary nature and it was not the function of the revenue Courts to go deep into the question of title and inheritance. The learned Additional Commissioner accepted the appeal of the respondents by order, dated 15-4-67 (Annexure 'B') holding that "the matter is not so simple as to fall within the jurisdiction of the Revenue Officer and I feel that what has happened during the last six years it would be futile to send the case back to the A.C. II for further enquiry. The best forum for sorting out the relationship of the parties with Miroo is a proper civil Court and the parties instead of wasting time before the Revenue Officers should go to the Civil Court to get it settled once for all".

4. Petitioners filed a revision petition which was rejected by the learned Member, Board of Revenue by his order dated 27-3-68 (Annexure 'C') holding that the case having already been remanded twice to A.C. II, there was no justification for the third remand and the parties aggrieved by the order of A.C. II were rightly directed to take recourse to the civil Court.

5. Petitioners who claim to be the heirs of Mst. Jhando deceased as also having "a further qualification of being the collaterals as well", filed this Constitutional petition to challenge the aforementioned orders of the Revenue authorities on the following grounds:

(a) On the authority of Full Bench judgment of this Court in Sher Muhammad's case P L D 1968 Lah. 234, Mst. Jhando was absolute owner and on her death the property in dispute devolved on the petitioners who were her only legal heirs. None of the revenue Officers including the learned Member, Board of Revenue took note of this judgment.

(b) Petitioners being the only heirs of Mst. Jhando deceased, the revenue authorities should have decided the mutation of inheri tance in their favour.

(c) In view of the Supreme Court judgment in Mst. Zainab v. Raji and others P L D 1960 S C 229, jurisdiction of civil Courts to entertain declaratory suit for establishing title to evacuee lands abandoned in India by a refugee claiming to own such lands was barred and as such the impugned order of the Additional Commis sioner directing the parties to go to civil Court for decision of their rights was clearly against the law declared by the Supreme Court of Pakistan.

6. I have heard the learned counsel for the parties. Learned counsel for the petitioner, in his submissions, has reiterated the aforementioned contentions.

7. As regards the contention raised on the authority of the afore mentioned Full Bench judgment of this Court in Sher Muhammad's case that Mst. Jhando was the absolute owner of the property in dispute, suffice it to observe that the view taken in Full Bench judgment of this Court was overruled by the Supreme Court of Pakistan in Additional Settlement Commissioner (Land) Sargodha v. Muhammad Shafi and others P L D 1971 S C 791 wherein it was held that the property allotted to a A female in lieu of the limited estate abandoned by her in India would, on her death, devolve on the heirs of the last male owner of the property left in India and not on her own heirs. This being the settled law, even if the petitioners are accepted as the only legal heirs of Mst. Jhando, they cannot inherit the entire property in dispute which according to law declared by the Supreme Court would devolve on the heirs of Miroo deceased. Petitioners will, therefore, only inherit the share which Mst. Jhando will get in the estate of her deceased husband. Petitioners, however, also claim to be the collaterals of Miroo which relationship appears to be disputed. Be that as it may, in order to become entitled to a share in the inheritance of Miroo deceased, both the parties shall have to establish their relationship with him in a proper Court of law as directed by the learned Additional Commissioner. It is significant that the case remained pending before the revenue authorities for about 7 years and in spite of the elaborate enquiry held in mutation proceedings in which bulk of evidence was recorded, question of the aforesaid relationship of the parties could not be decided. It was in this background that the Additional Commissioner came to the conclusion that the civil Court was the best forum for deciding this question and parties were, therefore, directed to seek their remedy in the civil Court. Even otherwise, question as to who amongst the parties is entitled to inherit the property in dispute and to what extent is B basically a question of title which can only be decided by the civil Courts. Revenue authorities, in the proceedings for sanctioning mutation, do not act as arbiters of the rights of the parties. Needless to emphasise ,that a decision in mutation proceedings is not a decision as to the title of the parties. Revenue authorities sanction the mutation to keep their own record in order and up-to-date. Reference in this behalf may be made to Muhammad Iqbal v. S.A.M. Khan, Member, Board of Revenue P L D 1970 Lah. 614. In Nirman Singh v. Rudra Partap Narain Singh A I R 1926 Privy Council 100, it was held by the Judicial Committee that mutation proceedings are not judicial proceedings in which title to and proprietary rights in immovable property are determined but that "they are much more of the nature of fiscal enquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid". Same view was expressed in Mst. Rasulan Bibi v. Nand Lal A I It 1930 All. 521 and was relied on in Ram Sarup Rai v. Charitter Rai A I R 1927 All. 338. An entry by virtue of the mutation is,' therefore, not the basis of title. Thus viewed from whatever angle, direction of the Additional Commissioner and the learned Memifer, Board of Revenue that the parties should get their dispute settled in a civil Court proceeds on correct legal premises and is not open. to exception on any plane.

8. As regards the petitioners' contention bused on Mst. Zainab v. Mst. Raji and others P L D 1960 S C 229, it may be noted that the view expressed therein was applicable to the case of inheritance of a deceased 'right holder' which term was interpretted in Syed Abdur Rashid v. Pakistan P L D 1962 S C 42 to mean a 'right holder' who had died before putting in his claim. Mst. Jhando was a confirmed allottee and not a deceased 'right holder'. In this view of the matter, civil Courts are not barred from deciding the question of succession to the estate of a confirmed allottee and it has been so held in Mst. Ghulam Fatima v. Muhammad Hussain and 5 others P L D 1976 SC 729. Thus, the impugned decision of Additional Commissioner directing the, parties to go to the civil Court for settlement of their dispute cannot be said to be barred by any law. Contention of the learned counsel for the petitioners in this regard is misconceived.

9. As held above, none of the contentions raised by the learned counsel for the petitioners has any substance. This writ petition is therefore, without any merit and the same is accordingly dismissed but there will be no order as to costs in the circumstances of this case.

M.Y.H. Petition dismissed.