Mst. GHULAM BANO alias GULAB BANO Versus Mst. NOOR JEHAN
SARDAR MUHAMMAD RAZA KHAN, J.- -- Ghulam Bano alias Gulab Bano , Mst . Begum, Mst . Sat Bharai , Mst . Bhaag Bhari , Mst . Bakht Bano and the legal heirs of deceased Mst . Malkan , the daughters of Ghulam Muhammad of Mauza Rakwal Tehsil Talagang , District Chakwal , through this petition seek leave to appeal against the judgment dated 19-7-2004 whereby, on acceptance of the civil revision filed by the respondents, the predecessor of the respondents namely Haq Nawaz son of Ghulam Muhammad was declared to be the sole owner of the disputed land.
2. Admittedly, the property in dispute measuring 25 acres and 8 Marlas within the limits of Tehsil Lodhran was allotted to Ghulam Muhammad, the predecessor of the parties under section 10 of the Colonization of Government Lands Punjab Act, 1912. After his death on 22-3-1950 the entire property got mutated in the name of his only son Haq Nawaz through Mutation No.102 attested on 10-6-1950 . The petitioners including the mother of the petitioners Nos.2 to 5 brought a declaratory suit against their brother Haq Nawaz claiming their Shari Share in the property.
3. The suit, after contest, was once dismissed but subsequently after remand it was decreed on 18-6-1995 by the trial Court. The appeal before the First Appellate Forum was also dismissed on 15-9-1996 but the revision petition filed by the respondents was accepted and the learned Single Judge in the High Court reversed the concurrent grant of decree in favour of the petitioners, whose suit was dismissed.
4. So far, as the point of law is concerned, it is obvious as well as admitted that the land in dispute was allotted to Ghulam Muhammad son of Bakhtawar , the father of the parties, under section 10 of the Colonization of Government Lands ( Punjab ) Act of 1912. So long as, the amount settled between the allottee and the Government had not been paid, the allottee Ghulam Muhammad, under section 15 of the said Act, was to be treated as tenant. After his death Mutation No.102 of 10-6-1950 was attested in favour of Haq Nawaz his only son under section 20 of the Act, because he happened to be the only male lineal decendent of the original tenant in male line of descent. The first two Courts held that the original allottee during his lifetime had made the entire payment and thus, having become full owner, his daughters shall also inherit under the normal law of inheritance in accordance with Sharia . On the other hand, the High Court was of the view that Ghulam Muhammad had died without making full payment and that the payment was subsequently, made by Haq Nawaz and hence Haq Nawaz , in his own right, had become full owner of the property that once constituted his inherited tenancy under the Act. The pleadings of the parties and the judgments of the three Courts would indicate that the only crucial point involved in the instant case is the question of fact as to whether the payment was made by Ghulam Muhammad himself or it was subsequently made by his son Haq Nawaz , the predecessor of present respondents.
5. Under normal circumstances and under provisions of the special law before us, the tenancy, under section 20 of the Act, was to be inherited by Haq Nawaz provided Ghulam Muhammad had not made full payment and had not become absolute owner. Section 19-A provides for succession of tenancy in accordance with Shariah and nothing contained in section 20 of the Act, was to be applicable provided a Muslim tenant died after the coming into force of the Colonization of Government Lands (Punjab Amendment) Act, 1951. it is alleged that in the instant case Ghulam Muhammad had died prior to 1951 and hence his legal heirs i.e. the daughters cannot claim the benefit of section 19-A, added to the main Act. On the opposite side, it was alleged on the strength of Abdul Ghafoor s case PLD 1985 SC 407 decided by this Court, that in view of section 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act of 1962 and the section having retrospective effect, the succession to tenancy in the instant case would be governed by the law of Shariah .
6. In this behalf we had the opportunity of going through Mst . Bibi s case PLD 1989 SC 384 and Umar Din s case PLD 1995 SC 686, both full Bench judgments of this Court. The cumulative effect of both the judgments would be that promulgation of Shariat law being a general law on the subject would not have the effect of derogating from terms of the Act under which grant was made and which otherwise was a special law. We are of the view that the plaintiffs/petitioners cannot derive benefit from the provisions of section 19-A of the Colonization of Government Lands ( Punjab ) Act, 1912 and retrospectivity of section 2-A of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 cannot be benefited from.
7. Learned counsel for the petitioners relied upon a recent judgment of this Court in Mst . Naziran Bibi s case 2004 SCMR 94 but the facts thereof wherein the inheritance was allowed to devolve in accordance with Shariah , are different from the facts of the present case. In Mst . Naziran s case the inheritance pertained to a claim filed by a refugee for allotment of evacuee property. The claimant had died before the maturity of allotment and thus, it was held with reference to the claim of a refugee that it was to be inherited in accordance with Shariah . The logic behind that view was that a claim is submitted against a property of the claimant owned in India and had the claimant not migrated or died before allotment, his property, the subject-matter of claim would have otherwise been inherited by all his legal heirs in accordance with Shariah . In the instant case, the special provisions of a special law particularly related to the status of tenancy prescribed the devolution of inheritance qua tenancy in a specific manner and hence it had to be followed as per view taken by this Court in case of Mst . Imam Bibi and Ali Muhammad (supra).
8. Now we revert to the real point of controversy involved where one party (the petitioners/plaintiffs) claim that the amount of consideration was paid by their father Ghulam Muhammad while the other party ( Haq Nawaz ) claims to have deposited the amount himself. This exercise of appreciating evidence on record is adhered to, in order only to see as to whether, in the circumstances, the learned High Court was justified in setting aside the concurrent findings of two Courts below qua a question of fact.
9. To begin with the plaint, it is categorically mentioned that the suit of the petitioners pertained to an agricultural property measuring 25 acres 8 Marlas , no more and no less. This was exactly the property allotted to Ghulam Muhammad son of Bakhtawar . At times some people are allotted Ihatas as well, to be used for construction of residential purposes. Price of such Ihata is charged separately and proportionately to the price of land, as such. The allotment in question is entered at page 108 of the Ledger Register, the copy whereof is already on file. As the voucher of deposit allegedly made by Haq Nawaz was not properly legible like other Exhibits on file from Ledger Register Dakheel Kari scheme, we requisitioned the aforesaid register in original merely for comparison purposes and to have an opportunity of going through the original.
10. Page 108 categorically reveals that Ghulam Muhammad was allotted only the agricultural land measuring 25 acres, 8 Marlas against a sum of Rs.2 ,505 . There is no reference of allotment of any Ihata on the front page as well as on the backside of page 108, for; the backside of such page is specifically allocated for the purposes of entries of Ihatas . Such entry at the back is totally blank Whereas on the other hand, the challan form pasted at page 108 indicating the deposit of Rs.1 ,275 alleged to have been made by Haq Nawaz shows that it pertained to some property which included Ihata as separately entered despite the fact that no Ihata at all was allotted to Ghulam Muhammad and suit also did not pertain to any Ihata . The challan seemed to be doubtful at the very first instance.
11. The amount allegedly deposited by Ghulam Muhammad vide Dakhla No.487 is Rs.1 ,252 /8 Annas deposited on 19-6-1944 . If this is presumed to be the first instalment and disputed amount of Rs.1 ,275 is presumed to be the second instalment , then this second instalment must have been entered at page 108 of the register exclusively relating to the original allotment in favour of Ghulam Muhammad. No second deposit is at all entered in the relevant page or at the relevant place. Instead the deposit allegedly made by Haq Nawaz is entered at page 113 which pertained to allotment in the name of one Ghulam Muhammad son of Fazal Khan. His page is divided into two portions and in the second portion the entry of Haq Nawaz was made. His amount of Rs.22.50 is shown against Ihata on the same page and not on the back of the page 113 because that already contained the entry of Ihata measuring 1 Kanal , 12 Marlas belonging to Ghulam Muhammad son of Fazal Khan. This also makes the entry highly doubtful.
12. It cannot be deciphered from any conclusive documentary evidence as to when the amount claimed to have been deposited by Haq Nawaz , was so deposited. The date is ascertainable as 18-11-1967 only and only from entry at page 113 but this entry is not at all attested or verified by the Colony Assistant, the relevant column whereof is blank. The authentification of deposit and the date thereof is not forthcoming. Reverting to the challan of Rs.1 ,275 Exh.D.4 on record which is pasted at page 108 (Exh.P.5), the entries at numerous places are not legible. Original ledger register was requisitioned to remove the doubt, if any, but herein too the date of deposit is not legible. No doubt at times the seal of the bank is so affixed that some portion thereof is either dim or not marked at all. We are prepared to give such latitude but the amazing aspect of the matter is that the signature of the Bank Officer in red ink is also erased exactly from the same place where the month or year would have appeared below. It clearly seems that somebody in his effort to erase the month and year of deposit, has also erased the signature in red ink of the bank official over the stamp. This was done to avoid the detection of date which even otherwise could not be verified from Bank record as well as Treasury record because both, according to official concerned, had been destroyed. We do not know as to when the amount was deposited and against which land.
13. The challan form prepared by the Treasury for deposit in Bank is always in triplicate, each placed side by side and separated by two perforated lines . All the three are original. One of them is retained in the Bank, the other is sent to the Tehsil or the Treasury and the third one is handed over to the depositor. Which one of the challan is to go where, is always written in Urdu, only on top of the challan , for example, the challan in question copy Exh.D.4 which on top bears the inscription pert jo tahsil main rikha javay It is astonishing to note that at the bottom of same challan there is altogether a different inscription as pert jo dakhil kunanda ko wapis javay . Both these entries cannot be on one page and cannot at all be different under any circumstances. It appears that some portion taken from some other voucher has been pasted either at the lower level or at the upper level. Whatever be the mode adopted, the challan form appears to be bogus and forged. While turning the pages of the aforesaid original register, we were confronted with a similar challan form at page 111 against the allotment of one Muhammad Saleem . This form contains an inscription pert jo tahsil main rikha javay only on top of the form and no such description is at all given at the bottom. Obviously one form or copy is to go to one place and not two places at the same time. The challan (Exh.D.4) in the instant case contains the description showing that this copy would go to Tehsil and the same would simultaneously go the depositor. It appears that whosoever resorted to the forgery altogether forgot and omitted to notice the contradictory inscriptions on top as well as the bottom.
14. When total amount is paid by an allottee tenant, the office makes such entry in the remarks column of the leaf concerned with recommendation that deed of grant be prepared accordingly. Whereafter the sale-deed is executed by the Colonization Officer concerned. No such entries appear in the remarks column against the name of Haq Nawaz at page 113. It appears that by producing a simply forged receipt of Rs.1 ,275 , Haq Nawaz succeeded in getting a deed executed exclusively in his own favour .
15. In his statement Haq Nawaz had specifically mentioned that he had paid the last instalment of Rs.3 ,500 . If that instalment is added to Rs.1 ,275 deposited through the aforesaid challan , and the amount of Rs.1,252/8 Annas , the total comes to Rs.6,027/8 Annas or Rs.6027.50 Paisas ; whereas, the total amount of consideration in the instant case was Rs.2,505. We have scanned the entire original ledger register but could nowhere find any entry about Rs.3 ,500 . Seen from any angle, the deposit claimed by Haq Nawaz is proved to be fictitious. Obviously, he has done so to give an impression that the amount or amounts have been deposited by him after the death of his father.
16. On the other hand, the learned trial Court as well as the learned First Appellate Court have concurrently come to the conclusion that at page 108 pertaining to the allotment of Ghulam Muhammad son of Bakhtawar , there was no balance outstanding against Ghulam Muhammad and hence it would carry a strong presumption that he had paid the entire amount during his life time, otherwise, there was no sense in keeping a small instalment of Rs.1 ,252 /8 Annas pending for such a long time. The reasons given by the two Courts are fully supported from the record and hence we hold that Ghulam Muhammad had deposited the entire amount before his death and had become full owner of the property giving rise to devolution of inheritance in accordance with Islamic Law. In the given circumstances, the concurrent findings of two Courts below being correct and being in accord with the record should not have been interfered with by the learned High Court exercising revisional jurisdiction.
17. Consequently, the petition after conversion into appeal is accepted, the impugned judgment dated 19-7-2004 of the High Court is set aside and that of the trial Court as well as the First Appellate Court are restored. Owing to the relationship between the parties, they are directed to bear their own costs.
S.A.K./G-47/S Appeal accepted.