RAHIM BAKHSH vs Mst. ALLAH JAVAI (deceased) through her Legal Heirs and others
This matter arises from a petition for leave to appeal against the order of the Lahore High Court dismissing the petitioner's suit regarding the partition of ancestral land. The original owner's property devolved through successive generations, leading to a partition via Mutation No. 1732 dated 30-7-1962. The petitioner challenged the mutation alleging fraud and misrepresentation. The trial court decreed the suit in favor of the petitioner, and the Additional District Judge dismissed the respondents' appeal. However, the High Court accepted the respondents' regular second appeal, set aside the lower courts' decrees, and dismissed the suit. Before the Supreme Court, the core legal question concerned whether the partition of 45 kanals of land contravened paragraph 23 of Martial Law Regulation No. 64, and the effect of Notification No. SR2104/59/3194-LC dated 28th July, 1959, on the jurisdiction of civil courts. The Supreme Court held that the case raised a question of public importance regarding the statutory bar on partitioning joint holdings equal to or less than a subsistence holding, and consequently granted leave to appeal while ordering status quo.
- Does the partition of a joint holding with an area equal to or less than a subsistence holding violate Martial Law Regulation No. 64?
- What is the effect of Notification No. SR2104/59/3194-LC dated 28th July, 1959, on the jurisdiction of civil courts regarding land partition under Martial Law Regulation No. 64?
- Paragraph 23, Martial Law Regulation No. 64
ORDER
1. ' USMAN ALI SHAH, J.--The petitioner seeks leave to appeal against the order of the Lahore High Court, Lahore, dated 1-11-1988, passed in R.S.A. No,68 of 1973.
2. ' One Nizam Din the original owner of the property in dispute had three sons; namely, Abdullah, Faizullah and Rahmatullah. On his death the sons received their equal shares in the property under dispute. On their death the property devolved in equal shares to Chanandin, Mst. Umar Bibi and Mst. Allah Rakhi. Mst. Allah Rakhi sold her 1/3rd share to Chanandin, father of the Rahim Bakhsh petitioner herein and thus he became the owner of the 2/3rd share of the ancestral property, while out of the share of Mst. Umar Bibi, 1 kanal and 15 marlas was acquired by the local authorities and the petitioner Rahim Bakhsh remained in the exclusive possession of Khasra No,1402, measuring 4 kanals and 11 marlas. The respondents asked for the partition of the ancestral land which was carried out and completed vide Mutation No,1732, dated 30-7-1962.
3. ' Rahim Bakhsh petitioner herein challenged this order and pleaded that the said mutation was obtained by fraud and misrepresentation. The suit was only contested by the heirs of Mst. Chiragh Bibi, Mst. Umar Bibi and Mst. Allah Jawai. On the pleadings of the parties the learned trial Judge framed six contesting issues and after recording the evidence in the matter decreed the suit in favour of Rahim Bakhsh petitioner, vide order, dated 21-11-1964. Mst. Allah Jawai etc. Respondents herein filed appeal before the Addl. District Judge, which was dismissed, vide order, dated 10-2- 1973. The respondents then went to the High Court, Lahore in regular second appeal, which was accepted, the orders and decrees passed by the lower Courts were set aside and the suit of Rahim Bakhsh was dismissed. Hence this petition for leave.
4. We have heard the learned counsel for the parties and gone through the findings of the Courts below. The case reveals that a partition of 45 kanals of land had taken place, which is obviously in contravention of para. 23 of M.L.R. No,64, which provides that joint holding with an area equal to or less than that of subsistence holding should in no circumstances be partitioned. But the findings of the High Court with regard to the jurisdiction of the civil Courts, whether the partition was not violative of M.L.R. No,64, in view of Notification No,SR2104/59/3194-LC, dated 28th July, 1959, is a question of public importance and amongst others needs the consideration of this Court.
5. ' The result is that we grant leave to appeal in this petition. Status quo in meanwhile is to be maintained in all respects. Security is Rs,5,000.