MUHAMMAD SADIQ Versus DITTO

ORDER

The facts giving rise to this appeal are that Allah Ditta (since dead) and Ghulam Rasool filed a suit for declaration and possession of the suit land measuring 59 Kanals and 16 Marlas averring that Mst. Ditto widow of Fatta (the last male owner) was holding the life estate and being issueless was not legally competent to alienate the suit land, more than 1/4th of her share but she had alienated the entire suit land through mutations Nos. 433, dated 8‑1‑1968 and 601, dated 15‑2‑1973 in favour of respondents Nos. 2 to 10. Allah Ditta plaintiff died during the pendency of the suit and his legal representative Muhammad Sadiq, etc. were impleaded as plaintiffs in his place.

The suit was contested by the respondents. On the pleadings of the parties following issues were framed;

(1) Whether the suit is incorrectly valued. If so, what is the correct valuation and its effect? O.P.D.

(2) Whether the plaintiffs are estopped to bring this suit? O.P.D.

(3) Whether the suit is not maintainable in the present form? O.P.D.

(4) Whether this Court has no jurisdiction to hear this suit? O.P.D.

(5) Whether the suit is barred by time? O.P.D.

(6) Whether the defendant No. 1 was the holder of Life Estate and she had got such rights in the suit land allotted to her and could not alienate the same? O.P.D.

(7) Whether the disputed mutation No. 433 and 601 are unlawful, illegal, null and void and ineffective against the rights of the plaintiffs? O.P.P.

(8) Relief .

After recording the evidence the learned trial Court decided issue No.l in favour of the plaintiffs and the suit was held to have been rightly valued for the purposes of court‑fees and jurisdiction. Issues Nos. 2 and 3 were not proved by the defendant‑respondents. Under issue No.4 the civil Court held to have jurisdiction to hear the suit. Under issue No. 5 the suit was held to be within time. Issue No. 6 was decided in favour of the plaintiffs and against the defendant respondents and it was held that Mst. Ditto being the holder of Life Estate could not alienate the suit land. Issue No.7 was also decided in favour of the plaintiffs and the mutations referred to above were declared to be illegal and ineffective qua the rights of the plaintiffs. In view of the above findings the suit of the plaintiffs was decreed against the defendant‑respondents by the learned Civil Judge, 1st Class, Faisalabad on 14‑11‑1979. Feeling aggrieved the defendant respondents filed an appeal which was accepted by the learned Additional District Judge, Faisalabad on 27‑6‑1983 and the judgment and decree passed by the trial Court was set aside. Hence this appeal, by Muhammad Sadiq and Ghulam Rasool, etc. plaintiffs.

2. It is contended that there has been a misreading of evidence by the learned Appellate Court and documentary evidence has been ignored. Their main stay is on the' application moved by Mst. Ditto in the Court of Deputy Custodian, Faisalabad for the grant of no objection certificate and her admission that she could alienate the suit land to the extent of Ith share only. It is stated that after the said admission she could not have alienated the entire' suit land. They maintain that Collector, Faisalabad had also held vide order, dated 19‑11‑1964 that she could alienate the suit land to the extent of th share only.

3. The learned Additional District Judge observed that the petitioners had failed to show that the suit land had been allotted to Mst. Ditto as a limited owner. He further observed that the trial Court had relied on the orders passed by the Collector, Faisalabad in holding that Mst. Ditto was a limited owner but he did not refer to the decision of the Additional Commissioner (Revenue), Sargodha and Board of Revenue whereby Mst. Ditto was held to be a full fledged owner of the suit property and competent to alienate the same.

4. I have considered the points urged by the learned counsel for the appellants. These were also urged before the learned Additional District Judge and were adequately dealt with by him. The findings arrived at by him are based on evidence and no error or defect is shown up warranting interference by this Court in second appeal. The learned trial Court had not considered the decisions of the learned Additional Commissioner and the Board of Revenue in determining the status of Mst. Ditto and thus his findings were rightly set aside by the learned Additional District Judge in appeal.

Finding no substance in appeal, it is dismissed in limine.

H . B . T . / M‑574/ L Appeal dismissed.