GHULAM HUSSAIN and another vs FAIZ MUHAMMAD and 7 others

1. ' MUHAMMAD AFZAL ZULLAH, CI-This appeal through leave of the Court is directed against judgment dated 21-10-1979 of the Lahore High Court whereby the respondents/defendants' Regular Second Appeal was allowed and the appellants/plaintiffs' suit arising out of a land inheritance dispute was dismissed. Leave grant order reads as follows:-- "The dispute in this petition for leave relates to land in Mianwali District, and the petitioners as well as the respondents are the heirs of one Lal Khan, who was the last sole owner of the land in dispute.

2. Lal Khan died on 28-10-1952 survived by his sons (the petitioners before us), by Mst. Saddan, his widow (respondent No,5) and three other daughters, who are respondents 6 to 8 in this petition for leave. The first respondent, on the other hand, was married to Mst. Amiran, a daughter of Lal Khan, who died more than five years before Lal Khan's death. However, although Mst. Amiran had died in 1946, the mutation of inheritance of Lal Khan was made in the names of all his heirs except respondent No,6 and instead a mutation was made in favour of Mst. Amiran, who had died tong before her father's death. Then on the basis of this mutation, the first respondent obtained a mutation of inheritance from Mst Amiran which was sanctioned on 20-11-1968. Half of the land was mutated in the first respondent's favour and the rest in favour of the other heirs of Mst. Amiran.

3. Then after obtaining this mutation in his favour the respondent gifted the land mutated in his name to respondents Nos.2 to 4, who are his children by his second wife.

4. ' In these circumstances, the petitioners, who are the sons of Lal Khan, filed a suit in the Court of the Civil Judge, Bahakhar for a declaration that they and respondents 5 to 8, be decarled as the owners of the suit land (namely, the land that had devolved upon them after Lal Khan's death) and they also prayed for a permanent injunction to restrain the respondents 1 to 4, from interfering with their possession of the suit land. As this suit was dismissed by the Civil Judge, who heard it, the petitioners filed an appeal in the District Court which was allowed by the learned District Judge, Mianwali by his judgment dated 10-1-1976. Therefore, the first four respondents challenged the judgment of the learned District Judge in an appeal in the Lahore High Court which was allowed by a learned Judge by his judgment dated 14-10-1979. Hence this petition for leave.

5. ' We pointed out earlier that the name of the sixth respondent had been inadvertently omitted from the mutation of inheritance of Lal Khan's death and that Mst. Amiran's name had been illegally substituted. In this connection, the learned Single Judge observed:--

8. It is quite evident from the mutation (Ex.P.2) that Mst.Mureedart was substituted by Mst. Amiran (deceased). Mst. Mureedan did not contest the suit. Even in the appeal she did not enter appearance. It is not disputed by any of the parties that Mst. Mureedan respondent alone would be the beneficiary of the decree and the position of the plaintiffs-respondents would not improve in any manner. A suit for declaration is competent only if the plaintiff is entitled to any legal character or right to property. No declaration can be granted unless the plaintiff succeeds in bringing his case within the ambit of section 42 of the Specific Relief Act. The plaintiffs respondents in substance had asked for a declaration in respect of right of a third party. Such a declaration suit is not covered by section 42 of the Act. It is quite obvious that the plaintiffs-respondents did not base their suit on an entitlement of any legal character."

6. "With these observations, the learned Single Judge allowed the appeal of the respondents.

7. "Mr. Qureshi submitted that the learned Judge had erred in holding that the petitioners were not aggrieved by the mutation illegally effected by the first respondent in his favour and in support of this submission, he referred us to the statement of the case of the petitioners in the trial Court's judgment. And, learned counsel's submission was that the learned Judge non-suited the petitioners on the basis of section 42 of the Specific Relief Act by misreading the plaint and the evidence.

8. "As these submissions require examination, we grant leave as prayed."

9. It cannot be denied that Mst. Mureedan respondent No,6 was entitled to inherit from her father and on the contrary the first respondent and his children had no right to inherit either as son-in-law of the last male-holder or as husband of Mst. Amiran who was the daughter of last male-holder, because, she had died earlier in 1946 before the death of Lal Khan the last male-holder who died in 1952. It is, therefore, obvious and almost admitted that a wrong mutation had been sanctioned whereby Mst. Mureedan respondent No,6, who was entitled to inherit was excluded, while, Mst.

10. Amiran and her husband and some of his children from the second wife were allowed to inherit property of Lal Khan without even a semblance of a right. The judgment in favour of Mst. Mureedan above-referred respondent No,6, rendered in first appeal was set aside by the High Court on the appeal of the respondent No,1 and his children who had absolutely no right to inherit Lal Khan's property and thus had no right to file an appeal. In other words they had no locus standi to file an appeal. In this view of the matter the appeal being incompetent should have been dismissed on this solitary ground. But the matter would not end here. The High Court as is apparent from the leave grant order faced a difficulty that Mst. Mureedan had not filed the suit and she being the only beneficiary was in the array of parties as a respondent, therefore, perhaps it was further thought she could not be granted any relief by the first appeal Court.

11. ' This, with respect, was not a correct approach to the difficulty for solving the same. Order XLI, Rule 33, C.P.C. Permitted the first appeal Court to grant a decree in favour of Mst. Mureedan respondent before it. It reads as follows:-- ORDER XLI.

12. ' Rule 33, Power of Court of Appeal.-- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: ' Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order).

13. Looked at from this angle the difficulty visualised by the High Court, vis-a-vis, the provisions of the Specific Relief Act would not present any insurmountable difficulty. It may be clarified that had there been any such difficulty we would not have hesitated to exercise further inherent power to do complete justice by undoing an un-Islamic mode of devolution of inheritance of Lal Khan deceased, the last male-holder in this case whereby a female heir Mst. Mureedan would have been deprived of her valuable right to inheritance. See for the support of this view Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 Supreme Court 1. But it is not necessary.

14. ' Same power was with the High Court itself and a similar power is with this Court under Supreme Court Rules Order XXXIII Rule 5. The trial Court also, it cannot be denied, had inherent power in a case like the present one on the analogy of provisions contained in Order XLI, Rule 33, C.P.C. And Order XXXIII, Rule 5, Supreme Court Rules to do justice between the parties before it, under section 151, C.P.C. If there was any need for an order for transposing a defendant as a plaintiff the same also could have been done under other provision of C.P.C. Including general enabling provision in this behalf, namely, section 153, C.P.C. This error or defect could be remedied by any of the Courts and could also be resorted to by this Court if there would have been any need but in view of the availability of the other more elaborate and effective power under Order XLI, Rule 33, C.P.C. The two lower appellate Courts and under Order XXXIII, Rule 5 of this Court, there is no need to resort to the said provisions of C.P.C. Including sections 151 and 153, thereof.

15. Accordingly, in the light or the foregoing discussion this appeal is allowed. The impugned judgment is set aside and the judgment and decree passed by the first appeal Court are restored. There shall be no order as to costs.