ALI ANWAR Versus MUHAMMAD RIAZ

ORDER

1. JAVID IQBAL, J.- -Leave to appeal is being sought against the judgment dated 13th November, 1979 passed by a learned Single Judge of the Lahore High Court, Lahore in- R.S.A. No. 252 of 1960.

2. The facts are that Mst. Jahano widow of Kala Khan sold land measuring 12 Kanals 11 Marlas on 25th September, 1956 to the present petitioners. Consequently respondent Muhammad Riaz collateral of Kala Khan deceased, who had died in 1931, instituted a suit for declaration to the effect that the sale in question was without consideration and legal necessity and that Mst. Jahano being a limited owner could not alienate the said disputed land under the law, and that furthermore the said sale would not in any way affect the reversionary rights of respondent Muhammad Riaz. The said suit was dismissed by the Additional Civil Judge, Second Class, Rawalpindi, on 27th March 1959, firstly, on the ground that the parties being weavers by caste and also being of a non-agricultural tribe were not governed by custom; and secondly, that although Mst. Jahano was an occupancy tenant of the disputed land she had deposited Malkana in 1952 when section 59 of the Tenancy Act had been amended vide Act VII of 1952 where under she had become absolute owner by acquiring proprietary rights in the land in question. Thereupon, Muhammad Riaz respondent preferred an appeal against the judgment and decree of the Additional Civil Judge but it was dismissed by the District Judge Rawalpindi on 20th December, 1960. Then Muhammad Riaz respondent challenged the judgment of the District Judge in R.S.A. No. 252 of 1960 which was accepted by a learned Single Judge of the Lahore High Court, Lahore as stated above.

3. It was argued by the learned counsel for the petitioners that the two lower Courts had given concurrent findings of fact pertaining to the question of applicability of custom to the parties and Mst. Jahano becoming full owner of the disputed land under the amended law i.e. Act VII of 1952 and that therefore no interference was called for. Reliance in this connection was placed on PLD 1985 SC 407 (Abdul Ghafoor and others v. Muhammad Shafi and others). It was also submitted that under section 114 of the Tenancy Act any occupancy tenant who at the time of the coming into force of the Punjab Tenancy (Amendment) Act, 1952 occupied any land as such would become full owner after payment of compensation. Since Mst. Jahano had deposited Malkana as required under the law, she had obtained full rights in the said land and did not remain a limited owner any more. It was next submitted that the learned Single Judge of the Lahore High Court, Lahore misread the evidence on record which led to miscarriage of justice.

4. Leave to appeal is granted, inter alia, to consider as to whether there was any misreading of evidence in the instant case in respect of concurrent findings of fact of the two Courts below with regard to non-applicability of custom and the acquisition of full rights pertaining to the property in dispute by Mst. Jahano who had also died in 1959/60. While hearing the matter the question shall also be examined that even if Mst. Jahano was full owner of the disputed land whether or not petitioners could retain more than 1/4th share in the said land of Mst. Jahano under the Muslim Law.

5. Security to be deposited Rs.2,500. In the meantime respondent Muhammad Riaz shall not alienate the disputed land, if he is in possession thereof.

6. M.I./A-100/L ?????????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.