MST. HASSENA Versus MST. MINI
This regular second appeal relates to certain property left by one Maula Bakhsh who died in 1924 leaving behind a widow, Mst. Jiwan, and a daughter, Mst. Zainab. He had no male issue. Besides the said ladies, Maula Bakhsh was survived by a sister, Mst. Allah Jawai and a brother, Jalal. Din. Jalal Din died without leaving any issue or widow. Mst. Allah Jawai is the appellant before me. Respondent No.2, Nazir Ali and respondent No.3, Faqir Ali are sons of said Mst. Zainab. On the death of Maula Bakhsh his land as well as two houses and a Haveli belonging to him came into the hands of his widow, Mst. Jiwan. Out of his landed property, 599 Kanals and 12 Marlas of land was in village Wah Garey, Tehsil Ferozewala, District Sheikhupura, and land measuring 13 Kanals and 5 Marlas was in village Tariddey Wali of the said Tehsil. The said two houses and the Haveli were also located in village Wah Garey. After the land was mutated in the name of Mst. Jiwan, she made gift of the land measuring 599 Kanals and 12 Marlas situate in village Wah Garey, in favour of her daughter's sons, Nazir Ali and Faqir Ali, who, as already stated, arc respondents Nos.2 and 3 in the instant appeal. This gift was made on 8th April, 1941. after the death of Mst. Zainab. The collaterals of Maula Bakhsh assailed the gift by means of a usual suit under custom. The suit was decreed by the trial Court but the judgment and decree of the said learned Court were set aside in appeal. Thereafter, the collaterals preferred a second appeal, namely, R.S.A. No.98 of 1949. Faqir Ali died during the pendency of the appeal and his legal representatives were not impleaded within the time allowed by law. Thus, the appeal abated to the extent of his half share in the land involved in the said appeal. The appeal was, however, allowed to the extent of the other half share of Nazir Ali and the collaterals' suit was decreed accordingly. Thereafter, Mst. Jiwan sold the land in respect of which the collaterals' suit had been decreed. This sale was made in favor of said Nazir Ali, on 2nd July, 1959. Thereafter, Mst. Jiwan died on 26th October, 1900. Mutation of inheritance relating to the land left by her in village Tariddey Wali was attested on 18th May, 1961 and following persons were awarded shares noted against each:‑
Mst. Allah Jawai 7/16
Legal heirs of Mst. Zainab 7/16
Muhammad Ali brother of Mst. Jiwan. 1/8
On this, the appellant, Mst. Allah Jawai, filed a suirclaiming 7/16 share in the entire land measuring 612 Kanals and 17 Marlas, left by Maula Bakhsh, and in the two houses and the Haveli referred to above. The suit was resisted, inter alia, on the ground that she was not a sister of Maula Bakhsh. This plea found favour with the Civil Judge before whom the suit was instituted. Her suit was, therefore, dismissed by him on 29th September, 1963. She then went in appeal before an Additional District Judge who reversed the finding of the learned Civil Judge regarding the relationship of the appellant, Mst. Allah Jawai and decreed her suit qua the property‑in the hands of Nazir Ali but maintained the judgment and decree of the learned trial Court in other respects. This gave rise to two regular second appeals. One of those appeals, namely, R.S.A. No.284 of 1905 was filed by Nazir Ali and other one, which is in hand, was preferred by Mst. Allah Jawai.
2. Regular Second Appeal No.284 of 1965 filed by Nazir Ali came up before my learned brother. Akhtar Hassan, .1. on 1st June, 1985 when it was disposed of by him with the following observations_‑
"This suit was based upon Custom. Under section 2‑A, clauses b and (c), West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983, the appeal shall abate whereas the decree under appeal has become void. The appeal is disposed of having abated."
Thereafter, a review petition was filed by the appellant, Mst. Allah Jawai, which was dismissed by my said learned brother on 27th October, 1987. Order passed by him on the review petition was assailed before the Supreme Court by means of Civil Petition for Special Leave to Appeal No.768 of 1987. This petition was, however, dismissed by the Supreme Court, on the ground of limitation, on 25th November, 1987.
3. Mst. Allah Jawai died during the pendency of this appeal whereupon her legal representatives were brought on the record.
4. Today, when the instant .appeal was taken up for hearing, a preliminary objection was raised by learned counsel for respondents Nos.1 to 4 and 8 (hereinafter referred to as the respondents) that since my learned brother, Akhtar Hassan, J has declared that the decree under challenge "has become void" and his order is still holding the field, I have no, jurisdiction to decide the present appeal, on merits. Learned counsel for the appellants, however, argued otherwise and cited Sh. Muhammad Riaz Diwana through his Legal Heirs v. Sh. MUhammad Sharif and others 1989 MLD 3663 (Lahore); Lai Din and 2 others v. Mst. Zeenat Bibi and 4 others 1987 CLC 587 (Lahore) and Mst. Lachhmi v. Mst. Bhulli AIR 1927 Lahore 289 to contend that I could examine validity of the verdict of my learned brother and if I did not agree with him I could decide the instant appeal on merits. His submission was that the decision of my learned brother, by which the appeal was disposed of by him, was void inasmuch as provisions of the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983, hereinafter referred to as the said Ordinance, were not attracted to the appeal before him.
5. It was not the plea of learned counsel for the appellants that my learned brother had no jurisdiction to dispose of the appeal as aforesaid. His contention, in substance, was that the provisions of the said Ordinance, were not applicable to the appeal with him. In other words, he was not satisfied with my learned brother's interpretation of the said provisions. Although the order by which the appeal was disposed of is a short one yet he recorded a detailed order on the review petition giving reasons for striking down the decree under the said Ordinance. Now, the question requiring determination is whether I can sit in appeal over the verdict of my learned brother who is as good a Judge of this Court as myself.
6. As for the case‑law cited by learned counsel for the appellants, the case of Sh. Muhammad Riaz Diwana through his Legal Heirs related to two suits in respect of an agreement to sell certain property. One of the suits was for specific performance of the agreement and the other was for avoiding that agreement. When the matter came up before the High Court appeal arising out of the suit for avoiding the agreement was dismissed with the finding that the agreement could not be avoided by the appellant (plaintiff) therein. Thereafter, the appeal arising out of the suit for specific performance was decided on merits. For obvious reasons, that appeal could be so decided because in the other appeal decided earlier the agreement was found to be a valid one. If the position had been otherwise, appeal arising out of suit for specific performance would not have been decided on merits. It is, therefore, apparent that facts of the case of Sh. Muhammad Riaz Diwana through his Legal Heirs are different from those of the appeal before me, Resultantly, the said case is of no help to the appellants.
7. Case of Lal Din and 2 others was in respect of the inheritance of one Hakim. Mst. Hussain Bibi brought a suit claiming share in the property left by him alleging that she was his widow. Another suit was filed by the collaterals of Hakim. Their plea was that Mst. Hussain Bibi was not the widow of the deceased. Ultimately, both sides came before the High Court with two separate appeals. The appeal of Mst. Hussain Bibi was decided first and it was held that she was not the widow of Hakim. Thereafter, the appeal of the collaterals was taken up. While deciding their appeal it was clearly observed by the High Court that question relating to the status of Mst. Hussain Bibi could not be gone into because the same had already been decided in her appeal. The appeal of the collaterals was, therefore, decided in other respects. This judgment, to my mind, goes against the appellants instead of being of any avail to them because it is also the plea of the contesting respondents that the decision of my learned brother setting at naught the whole of the decree under challenge does not permit me to examine the validity of the same decree in connection with the present appeal.
8. The third case relied upon by learned counsel for the appellants is that of Mst. Lachhmi. In that case, on the death of one Dewa Singh, his landed property was mutated, half in the name of one Mst. Bhulli who claimed to be his widow, and half in the name of Mst. Lachhmi, the widow of his pre deceased son, Bishan Singh. Each widow sued the other for declaration that she (plaintiff) was the exclusive owner of that land and that the other (defendant) had no right in it of any kind. Both suits were disposed of by a single judgment which decided that Mst. Bhulli was the owner but that Mst. Lachhmi was entitled to hold possession of half the land in lieu of maintenance. Separate decrees were drawn up in each suit declaring the right of the plaintiff according to that decision. Mst. Lachhmi appealed against one of these decrees only, namely, the decree passed in the suit in which she was the plaintiff. Her appeal was heard by a Full Bench of the then High Court at Lahore. It was held by the majority of the Judges constituting the Full Bench that the fact that no appeal had been preferred by Mst. Lachhmi against the decree in the other suit of Mst. Bhulli could not prevent Mst. Lachhmi's appeal from proceeding. Chief Justice of that High Court who was also a member of the said Full Bench, however, differed with the majority view. As indicated above, the case of Mst. Lachhini related to the competency of a single appeal in the circumstance, stated above and it was not ruled therein, by any one of the Judges constituting the Full Bench, that if there are two appeals against one and the same decree and one of the appeals is decided by a Single Judge of a High Court, another Single Judge of that very High Court who. is seized of the other appeal can pronounce upon the correctness or otherwise of the judgment and decree passed in the appeal decided earlier or can decide the appeal with him by examining the impugned decree on merits. Contention raised by learned counsel for the appellant, therefore, does not derive any support from the precedent case of Mst. Lachhmi.
9. It has already been stated that according to my learned brother Akhtar Hassan, J. the whole of the decree assailed herein "has become void". His view has attained finality inasmuch as the review petition filed before him as well as the Civil Petition for Special Leave to, Appeal, made by the appellants before the Supreme Court, did not meet with success. My learned brother is as good a Judge of this Court as myself. Learned counsel for the appellants has not cited any law permitting me to sit in appeal over the view expressed by him. Case‑law relied upon by him has been found to be of no help to the appellants. As explained the real grievance of the appellants is that. interpretation placed by my learned brother on the provisions of the said Ordinance is not correct. This does not mean that his order‑is void because it is not the case of the appellants that he had no jurisdiction to dispose of the appeal before him. In the circumstances, decision of my learned brother is also either correct or incorrect, but not void.
10. As explained above, ruling of my learned brother that the entire decree assailed herein "has become void" has attained finality. It is, therefore, holding the field. Also, for the reasons given above, I cannot sit in appeal over the verdict of my learned brother. In this state of affairs, I am constrained to B proceed on the premises that the decree under appeal has already been founa to be void and, therefore, there is neither any occasion nor I have the; jurisdiction to examine the correctness or otherwise of the said decree.
11. With these observations, the appeal is disposed of with no order as to costs.
M.B.A./A‑117/L Appeal dismissed.