MUHAMMAD RAFIOUE vs ABDUL GHAFOOR

' ABDUL SHAKURUL SALAM, J.---This appeal by leave arises in the following circumstances.

1. Relevant facts are that one Beru held land in village Lahra, Tehsil Sanam India. He was killed during the disturbances of 1947. His surviving son Muhammad Sharif was also killed in the said disturbances. The appellant filed a claim for the land abandoned by Beru in India which was verified. Mutations of inheritance from Beru to Muhammad Sharif and from the latter to the appellant were sanctioned by A.C. II on 7-6-1955. In lieu of the verified claim land measuring 143 Kanals 10 Marlas was confirmed on RL-II of Musa, Tehsil and District Gujrat on 17-9-1955. The respondent filed an appeal before the Collector/Deputy Rehabilitation Commissioner, Gujrat claiming that he was the son of Muhammad Sharif and not the appellant. During the pendency of this appeal, the appellant sold the land vide Mutations No, 50, 59, 60 on 14-4-1967 and 27-6-1967 in favour of Muhammad Sadiq etc. At the time of hearing of appeal, the appellant did not appear but one of the vendees Muhammad Sadiq appeared. The Collector/Deputy Settlement Commissioner, Gujrat, in a detailed order found that the respondent was the rightful heir of Muhammad Sharif son of Beru and the appellant had fraudulently sold the land. He cancelled the mutations of inheritance in favour of the appellant and remanded the case for fresh enquiry and decision. Subsequent mutations were also cancelled. This is vide order, dated 19-10-1967. The appellant challenged the order through an appeal which was dismissed on 2-7-1968. In remand proceedings, the Assistant Collector II, Gujrat sanctioned new Mutation No,69 in favour of the respondent holding him the sole heir of the ultimate right-holder Beru on 22-2-1969. The appellant filed an appeal which was dismissed as barred by time on 14-6-1969. His revision failed on 6-8-1969. He filed a Writ Petition No,1230-R of 1969 before the Lahore High Court which was allowed and case remanded to the Collector, Gujrat, for fresh decision of the appeal of the appellant. This is vide order, dated 17-4- 1972. In pursuance of the said order, the Collector/Deputy Rehabilitation Commissioner accepted the appeal. The respondent challenged the order through an appeal before the Additional Commissioner who ordered on 23-10-1974 for verification of the mutation afresh. The Assistant Commissioner-II Gujrat sanctioned the mutation of inheritance in favour of the appellant on 17-12- 1974. The order was challenged by the respondent before the Assistant Commissioner/Settlement Commissioner in revision but the same was dismissed in view of repeal of the Settlement laws on 13-6-1975. The respondent then filed a declaratory suit on 1-9-1975 to the effect that he was the heir of Muhammad Sharif son of Beru and not the appellant. The suit was dismissed on 25-4-1982 on the ground that the Civil Court did not have the jurisdiction. The respondent filed an appeal which was accepted by the learned Additional District Judge on the ground that since the question of fraud was involved Civil Court had the jurisdiction. The learned Additional District Judge remanded the case for fresh decision on merits vide order, dated 21-2-1982. In remand proceedings, the suit of the respondent was decreed on 3-1-1985. The appellant filed an appeal which was dismissed by the Additional District Judge, Gujrat on 2-2-1988 and his revision by a learned Judge of the Lahore High Court on 21-2-1988.

2. Leave to appeal was granted to the appellant to consider the question that notwithstanding that the appellant had not challenged the order of the learned Additional District Judge and prima facie he cannot dispute the correctness thereof, whether this Court cannot suo motu examine the same? This is vide order, dated 6-3-1990.

3. Learned counsel for the appellant vehemently contended that the Civil Court did not have the jurisdiction in the matter; secondly that the suit of the respondent was barred by time.

4. Taking the last contention first not only in view of the continuous litigation before the relevant authorities and the High Court as noted above, the decision of the three Courts below is correct that the suit was not barred, leave to appeal was also not granted on this point. Therefore, the second contention is rejected.

5. As regards the first contention, the learned Additional District Judge in the first round of litigation before the Civil Courts had held that since fraud was involved, the Civil Courts had the jurisdiction.

He remanded the case for decision on merits. This order, dated 21-2-1982 was not challenged by the appellant. He took a chance to succeed in remand proceedings. Having failed he cannot turn round and say that the Courts had no jurisdiction. In any case in view of the leave granting order the question was examined whether in exercise of suo motu jurisdiction, the order of the learned Additional District Judge should be allowed to stand. The learned Additional District Judge had held that in view of the fraud alleged (in getting the mutations sanctioned) which matter could not be adjudicated upon by the authorities the Civil Courts had the jurisdiction. It may be noted that the litigation was going on before the relevant authorities until the law under which they exercised jurisdiction i.e, settled law was repealed. Therefore, recourse could be had to the Civil Courts possessed of plenary jurisdiction to determine the dispute. More importantly, the three Courts below have held that the respondent was the heir of the right holder. There is no justification to exercise suo motu jurisdiction to enable the appellant to usurp the rights of the respondent.

6. In view of what has been stated above, this appeal is dismissed with costs.