MUHABAT Versus Mst. BAKHAT BHARI
I intend to decide the following revision petitions by one consolidated order having similar facts and law arising out of the same judgment.
(i) C.R. No.498 of 1991;
(ii) C.R. No.499 of 1991.
2. The brief facts out of which the aforesaid revision petitions arise are that the Mst. Budhai was limited owner of the land inquestion measuring 46 Kanals 1 Marla. On termination of her limited estate, the Revenue Rfficer sanctioned Mutation No.627 on 9-4-1980 according to which 17/72 share (1/8th share as widow of Sukha and 1/9th share as mother of Mst. Sattan daughter of Sukha, 1/3rd share as daughter of Sukha plus 1/6th share as sister of Janttan and 19/72 share to Mohabbat and other present petitioners as collateral of Sukha. Respondent No.1 being aggrieved filed a suit challenging the vires of the said mutation on the ground that she was entitled to half of the land in question as real sister of Noor Muhammad and in the remaining half of the suit-land she had acquired proprietary rights through adverse possession. The petitioners being aggrieved also filed suit challenging the vires of the said mutation on the ground that they were entitled to 7/8th share of the said land. The aforesaid suits were filed by the parties in the Court of Civil Judge 1st Class, Chiniot. The aforesaid suits were consolidated.
Out of the pleadings of the parties the trial Court framed the following issues:--
(1) Whether the suit is not maintainable in the present form? OPD.
(2) Whether the suit is time-barred? OPD
(3) Whether the plaintiff is estopped by his conduct to bring this suit? OPD
(4) Whether the plaintiff has no cause of action to bring this suit? OPD
(5) Whether the description of the suit-land is incorrect? OPD
(6) Whether Mutation No.627 dated 9-4-1980 is illegal, null and void and against the rights of the plaintiff? OPP
(7) Whether the plaintiff is owner in possession of the suit-land? OPP
(8) Whether the plaintiff has ripped her title by remaining in adverse possession of the suit-land for more than 12 years. OPP
(9) Relief.
The trial Court dismissed the suit of respondent No.1 Mst. Bukht Bhari and decreed the suit of the petitioners vide judgment and decree dated 9-9-1989. The respondents being aggrieved preferred two independent appeals in the Court of Addl. District Judge, Chiniot, who accepted the same vide impugned judgment and decree dated 11-11-1990, hence, the aforesaid revision petitions.
2. The learned counsel of the petitioners submits that after the consolidation of the tWo suits in respect of the disputed property one brought by Mst. Bukhat Bhari claiming her entitlement through Noor Muhammad, the last male holder and the other brought by Mohabbat and others claiming themselves as collaterals of Sukha, the last male holder were consolidated by the trial Court and by the judgment dated 9-9-1989 the suit of Mst. Bukhat Bhari was dismissed and that of Mohabbat and others decreed. The learned Addl. District Judge accepted the appeals without adverting to the reasoning of the trial Court. He further submits that Mst. Budhani the widow of Bakhta and the mother of Noor Muhammad and Mst. Bakhat Bhari had some time after the death of Bakhta, remarried his brother Sukha from whom she had two more daughters and Noor Muhammad son of Bakhta also died when he was still a child and Sukha, her second husband, later died without any male issue; therefore, First Appellate Court erred in law to accept the appeals in toto. without realizing that there is likelihood of the land left by both the brothers, namely, Bakhta and Sukha might have been mixed up by the Revenue Authorities and to exclude this possibility, it seems necessary to find out as where the land belonging to them, particularly after the consolidation proceedings, has gone. He further urges that section 2-A of the West Pakistan Muslim Personal Law (Shariat) Act, Amending Ordinance, No.13 of 1983 is not attracted in the present case. He further submits that the Fist Appellate Court admitted that Sukha was the last male owner; therefore, First Appellate Court erred in law to transfer the land through the impugned judgment and decree being sister of Noor Muhammad.
3. The learned counsel of the respondents submits that the First Appellate Court has rightly reversed the findings of the trial Court with cogent reasons in view of the provisions of section 2-A of the West Pakistan Amending Ordinance No.13 of 1983. He further submits that the respondents secured half share of her land from Noor Muhammad and the remaining from her uterine sister and mother of her uncle; therefore, judgment of the First Appellate Court is valid in the eye of law.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is better and appropriate to reproduce family tree to resolve the controversy between the parties:-- urdu 1218
Mere readings of the aforesaid family tree clearly establishes that the land is reverted to Noor Muhammad in view of 2-A of the aforesaid Ordinance; therefore, judgment of the First Appellate Court to the extent c of half share of late Noor Muhammad to be transferred through the impugned judgment to the respondents is valid, which is in accordance with the dictum laid down by the Honourable Supreme Court in Amin Din and 5 others v. Bahadur Hussain (PLD 1990 SC 816). The proposition of law is also supported by the following judgments:---
"Mst. Fatima v. Ghulam and others" (1993 CLC 567); " Zaid and others v. Muhammad Akram" (NLR 1993 SC 374); " Mst. Fazal Nishan v. Ghulam Qadir and others" (1992 SCMR 1773) and "Feroze Din and others v. Azmat Bibi and others" (1993 CLC 1626).
Therefore, the impugned judgment is upheld partly to the extent of half share given to the respondents with regard to the share of her brother late Noor Muhammad. The First Appellate Court did not determine the proper shares in accordance with Injunctions of Islam with regard to the remaining half of the land in question as is depicted from para. 9 of the impugned judgment of the First Appellate Court, left by Noor Muhammad and Sukha; therefore, revision petition are partly accepted to the extent of remaining half share which is not distributed and determined the share of the parties in accordance with Injunctions of Islam and also who are the collaterals who are entitled to have remaining half share of aforesaid owners of the land in question namely late Noor Muhammad and Sukha; therefore, to that extent the cases are remanded to the First Appellate Court to decide the , cases afresh while determining the shares of the parties in accordance with Injunctions of Islam. Parties are directed to appear before the District Judge concerned, on 24-5-2005, who is directed to hear the appeal himself or entrust the same to the Addl. District Judge. Parties and their counsel are directed to cooperate with the First Appellate Court so that the matter may be finalized as expeditiously as possible not later than six months. In case, any of the party or its counsel fails to cooperate with the First Appellate Court then the First Appellate Court is directed to invoke the penal provisions against the said party.
H.B.T./M-1022/L Order accordingly.