Pakistan Case LawMukhtar Ahmed (deceased) Versus Mst. Naziran
Sultan Tanvir Ahmad, J .--- Mr. Liaqat Ali Butt, learned Advocate for the revision-petitioners has pressed this civil revision on grounds of (i) misreading of evidence and (ii) that the revision-petitioners were entitled to inherit the property given as guzara allowance to Muhammad Ismail and Mst. Kolan Bibi. The revision is opposed by Ch. Ijaz Akbar, learned Advocate appearing on behalf of the respondents. Admittedly, the respondents are successors of Abdul Rauf- deceased , who was real brother of the predecessor(s) of the present revision-petitioners.
2.The revision-petitioners filed suit for declaration and permanent injunction claiming that the property measuring 60- kanal and 5- marla (as further described in the suit) was allotted to Muhammad Ismail, his wife Mst. Kolan Bibi, Abdul Rauf, Mukhtar Ahmad and Mst. Sardaran Bibi being refugees of Jammu and Kashmir. This property was allocated as subsistence allowance under the guzara scheme. The revision-petitioners have also claimed, in the suit, that they are co-allottees of the property to the extent of 2/3 shares. After framing the relevant issues, the learned trial Court recorded the evidence. The suit was decreed vide judgment and decree dated 16.02.2007, which was challenged in Appeal No. 36 of 2007. The learned Appellate Court accepted the same vide judgment and decree dated 17.11.2009.
3.Firstly, I would like to take up the argument as to the misreading of evidence. The revision-petitioner(s) themselves remarkably deviated from their original claim / averments in the plaint and deposed contrary to the same, during their cross-examination. In the suit, it is pleaded that five members of the family were allotted the land, whereas, Mukhtar Ahmad and Muhammad Sharif (PW-1 and PW-2) stated differently. PW-1 deposed that the land was allotted to him, Muhammad Ismail and Mst. Kohlan. Muhammad Sharif in response to a question deposed that Abdul Rauf, Mst. Sardaran Bibi and Mukhtar Ahmad were allotted the land:-
4.In order to explain the failure to file suit during the life-time of Abdul Rauf and then to file it after considerable period of the impugned mutation, against the widow and minors, original stance of the revision-petitioners was obtaining hisa-batae , however, in examination-in-chief totally different stance is adopted by PW-1, in the following manners:-
5.Now coming to the point of eligibility of the revision-petitioners to inherit the allocated land to their predecessor. Scrupulous reading of record reflects that land remained with Mst. Kolan Bibi and Muhammad Ismail (to the extent of their shares) as temporary allottees, who died in 1962 and 1967. The permanent rights were never conferred upon them. They remained in possession under guzara scheme, meant for maintenance only. Similar question went to the Hon ble Supreme Court of Pakistan in case titled Fateh Muhammad through Legal Heirs v. Ajaz Din through Legal Heirs and 2 others (1995 SCMR 883), which was addressed as under:-
..Before them the petitioner did not challenge the inclusion of respondent No. 1 in the allotment made in his favour provided the latter is ready to include him in the temporary allotment standing in his name to which respondent No. 1 never agreed on the ground that the Q.P.R. were regarding the inherited property but the temporary allotment was only for Guzara in which the petitioner could not claim any right. The Settlement Officers as well as the High Court came to the conclusion that the order of the Settlement Record Office was strictly according to law as the claim was joint in the name of respondent No. 1 and the petitioner and the allotment in lieu thereof could not legally be made only in the name of the petitioner. The temporary allotment obviously is in the name of respondent No. 1 alone and since it is only for Guzara, the petitioner had no right to claim a share in it and in arriving at this conclusion the High Court did not commit any legal error .
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6.In case titled Kala through L.Rs. and others v. Mst. Kamo Begum through L.Rs. and others (2013 SCMR 1558) leave was granted, inter alias, to examine if the allottee of temporary rights under maintenance scheme can be inherited. Upon failure to prove permanent allotment following has been observed:-
18. The law laid down in the afore-referred judgments could have been of relevance to the case of the respondents/plaintiffs if they had succeeded in proving that the suit land was ever allotted to their predecessor-in-interest Sardar Muhammad in which attempt they failed. Similarly the question whether temporary allotment to a refugee of Jammu and Kashmir is heritable or not would not be relevant in this case: first, because the respondents-plaintiffs failed to prove the allotment; and second because of belated challenge to the allotment made to the vendors of the appellant/defendants as the suit was filed after thirty years.
7.The question of inheritance of temporary allotment, under maintenance scheme, was examined by this Court in case titled Mst. Barkat Bibi v. Mst. Sakina Bibi and 7 others (1991 CLC 546) . The relevant extract reads as under:-
..It is asserted on her behalf that as daughter of Miskin Ali who was a temporary allottee of the land in dispute, she was entitled to take her due share in accordance with Islamic Law of inheritance applicable to his estate. I regret my inability to accept the contention because it has no serious merit in it. As said above, land was allotted to Miskin Ali as head of the family for purposes of maintenance in regard to himself, his wife and the son who associated with him in the family unit constituted for the purposes of receiving guzara. Upon death of Miskin Ali in 1965, his rights in the temporary allotment were transferred to the survivor-associate members of the family only. Right in the temporary allotment held by deceased Miskin Ali did not remain in vacuous. Plaintiff was never treated as member of the family headed by Miskin Ali as its sarbarah. Ext. D5 manifestly supports transfer of allotment rights to two surviving members of the family. Thereafter, all throughout, Mst. Alam Bibi and Mohammad Sadiq were treated as temporary allottees of the land. They alone enjoyed the benefit of temporary allotment and plaintiff did not assert her right to a share in allotment with them ..
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Further reference, if so required, can be made to the cases titled Allah Rakhi v. Sughra Bibi and others (1986 CLC 2095) and Mst. Sakina Bibi and another v. Mamla and 2 others (PLD 1977 Lahore 202).
8.A perusal of paragraphs Nos. 2 and 3 of the suit as well as evidence reflects that Muhammad Ismail and Mst. Kolan died prior to allotment was made permanent. Mr. Liaqat Ali Butt (learned-ASC) argued that revision-petitioners are entitled to inheritance rights in land allotted to Muhammad Ismail and Mst. Kolan Bibi, however, I am afraid that even this prayer cannot be allowed in view of the above discussed law.
9.Civil-revision is dismissed . No order as to costs.
MQ/M-197/L Revision dismissed.
Judges on this bench
- Sultan Tanvir Ahmad205 judgments