GHULAM JILLANI Versus Mst. GHULAM FATIMA
This is plaintiffs second appeal which has been directed against judgment dated 26‑10‑1970 passed by learned Additional District Judge, Sargodha dismissing his appeal from judgment and decree dated 7‑6‑1969 passed by Civil Judge, Sargodha by which he partly decreed his suit to the affect that the sale made by Ghulam Fatima defendant No.1 would not effect his reversionary rights and the suit qua the remaining relief was dismissed.
2. The facts relevant for disposal of this appeal in brief are that one Altaf Ali son of Muhammad Khan was grantee of the suit land. He died in the year 1939 leaving behind two widows namely Attar Nishan and Ghulam Fatima the'' respondent No.1. The said property devolved on both these widows in equal shares. Mst. Attar Nishan died m the year 1948 and her share in the property was of mutated in the name of the plaintiff/appellant to the extent of 3/4th share and remaining 1/4th share was mutated in favour of Mst. Ghulam Fatima defendant No.1.
3. Mst. Ghulam Fatima defendant No.1 in the suit sold the land to Ghulam Haider. The appellant challenged the said sale by filing the suit from which this appeal has arisen. His case was that respondent No.1 was a limited owner upto the re‑marriage or death, therefore, she was not legally bound to alienate the suit land. It was also stated that earlier she had gifted the land which was challenged through suit which was decreed in the terms that the said gift was in fact against the reversionary rights of the plaintiff. He also averred that her limited interest having terminated, therefore, he became owner in possession of 3/4th share of the disputed property. A declaration was sought that the plaintiff was owner in possession of 3/4th share of the suit land and a decree for permanent injunction was also sought as a consequential relief to restrain the defendant to interfere in his ownership and possession of the suit land. It was also prayed alternatively that the sale‑deed executed by Mst. Ghulam Fatima defendant No.1 in favour of defendant No.2 which was challenged be declared to be void and ineffective against plaintiff's reversionary rights. The suit was contested. The learned trial Court framed the following issues:‑
(1) Whether the suit has been correctly valued for the purpose of court‑fees and jurisdiction, if not, what is the correct valuation?
(2) Whether the plaintiff has no locus standi to bring the present suit?
(3) Whether the suit is maintainable in the present form?
(4) Whether Mst. Ghulam Fatima is a limited owner of the occupancy rights under the Colony Act and was incompetent to alienate the suit property?
(5) Whether the alleged sale deed dated 3‑7‑1967, is illegal, unauthorised and ineffective against the rights of the plaintiff?
(6) Whether the defendant No.1, has alienated the suit land by way of sale in favour of defendant No.2?
(7) Whether the limited estate of defendant No.1 has been terminated on account of the sale of the suit land? If so, what is its effect?
(8) Relief.
4. After recording evidence, the learned trial Court decided issues Nos.1 and 3 together in affirmative. Under issue No.2 it was held that the plaintiff was admittedly the reversioner of last male holder, therefore, he being vested with rights and interest in the suit property had locus standi to file the suit. Issue No.4 was answered in the affirmative as the learned counsel for the defendant conceded that Mst. Ghulam Fatima defendant No.1 was a limited owner under section 19‑A of the Colonization of Government Lands Act. Under issue No.5 it was held that the limited interest of respondent No.1/defendant No.2 did not terminate with the coming into force of Shariat Act No.VI of 1962 she being the limited owner under Colonization of Government Lands Act to which the said Shariat Act was not applicable so it was held that limited interest would hold good upto life or re‑marriage of respondent No.1. The plaintiff was held to hold reversionary rights and would be getting his 3/4th share at the termination of limited estate m the event of death of respondent No.1 or remarriage. Issue No.6 was not contested. Issue No.7 was also decided in the terms of findings on issue No.5. As a consequence of these findings the suit of the appellant/plaintiff was decreed to the extent of declaring that the disputed sale vas not effective qua his reversionary rights and qua the remaining relief it was dismissed. Both the parties fled two separate appeals before the learned lower appellate Court which was also dismissed by impugned judgment dated 26‑10‑1970.
5. Ch. Muzammal Khan, Advocate learned counsel for the legal representatives of respondent No.1 argued that since respondent No.1 has died, therefore, her limited estate having terminated as per terms of the decree impugned in the appeal, therefore, the appeal has become infructuous and the appellant could file a suit for possession of 3/4th share in the land. As against that learned counsel for the appellant however, argued that according to findings of the Courts below the relief of declaration claimed by the plaintiff that he was owner in possession of the land having been refused and the suit having been dismissed to that extent which findings are not sustainable in law as the limited interest according to the appellant stood terminated with the coming into force of the Shariat Act .1962 and it was in point of that time that the appellant was entitled to inherent 3/4th share and as such was entitled to recover possession of the land and was not to be made to wait till the life estate was terminated on re marriage of Ghulam Fatima or her death as such appeal has not become infructuous. In support of his contention. he has relied upon judgment reported as Mst. Began v. Mst.8ai 198'1 S C M R 80 in which it has been held that even the life estate held by a female under Colonization of Government Lands Act also terminated with the coming into force Shariat Act, 1962, therefore, it is urged that the findings on issue No.5 cannot be sustained.
6. I have considered the arguments and find that argument of learned counsel for appellant has considerable force. The findings on issue Na.5 in view of this authoritative, pronouncement cannot be upheld. It is unsustainable therefore, is hereby set aside. Issue No.1 is decided in favour of the appellant.
7. Learned counsel for the appellant however conceded that he was not in possession of land. Learned counsel for the appellant submitted that the appellant was entitled to recover possession of his share of land at the time when he file' !he suit ire cause at that time limited estate had already been terminated under the provision of Shariat Act, 1962 and he may be allowed to amend the plaint so as to incorporate as a consequential relief, the prayer for possession of land. It has been held in judgment reported s Ahmad Dm v. Muhammad Shafi and others F L D 1971 S C 762 that in such a case omission to ask for consequential relief of possession of property where declaration was sought, the suit could not fail but the plaintiff was to be required to amend the plaint. The learned counsel for the respondents have not raised any objection if the appellant is allowed to amend the plaint as prayed by the learned counsel for the appellant. In view of this concession and the said judgment of the Supreme Court the appellant is hereby allowed to amend the plaint as requested. In the result the appeal partly succeeds. The impugned judgment and decree to the extent of dismissal of the appellant's suit qua relief of declaration of his ownership in the land is hereby set aside and the case is remanded to the trial Court to decide the same on merits in accordance with law. The trial Court shall fix the time for filing the amended plaint by the plaintiff and thereafter he shah proceed to decide the suit. There will however be no order as to costs.
AA./G‑147/I, A Case remanded.