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Civil Petition for Special Leave to Appeal No. 55‑P of 1968, decided on 6th December 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, dated the 17th October 1968, in W. P. No. 40 of 1968).
Ss. 14 & 17‑Award given by arbitrators filed in Court‑Pending proceedings parties filing compromise deed and Court passing decree on basis of compromise without any reference to award‑Questions : (i) whether decree made on compromise invalid, (ii) whether such a decree could not be passed without in first instance superseding or remitting award‑Special Leave to Appeal granted by Supreme Court to consider questions‑Civil Procedure Code (V of 1998), O. XXIII, r. 3.
Maqbool Ilahi Malik, Advocate Supreme Court instructed by Kh. Mushtaq Ahmad, Senior Attorney for Petitioners.
Nemo for Respondents Nos. 1 and 2.
Muhammad Asghar, Advocate Supreme Court instructed by Maqbool Ahmad Rana, Attorney for Respondent No. 3.
Date of hearing : 6th December 1968.
The petitioners, 16 in number are tenants in cultivating possession of the disputed land which formed part of the estate of the late Sir Muhammad Akbar Khan of Hoti who died on the 6th of October 1952, leaving behind 5 sons, 2 widows and 2 daughters as his heirs. The inheritance mutations for the agricultural land were attested in favour of the heirs according to Shariyat. Respondent No. 3, Mst. Gohar Taj, one of the daughters of the late Nawab transferred her entire share in her father's estate except 500 Jaribs of Shah Nehri land and 10 Jaribs of municipal land, in favour of her brothers by registered deeds by way of Hiba‑bil‑iwaz. Subsequently, on her marriage, she repudiated the gifts. In consequence the dispute was referred by all the heirs to the sole arbitration of the late K. B. Muhammad Ibrahim Khan, Judicial Commissioner of the former N.‑W. F. P. by an agreement deed dated the 6th of May 1954. The arbitrator gave his award on the 3rd of May 1965. He found that the gifts were void and inoperative as against the rights of Mst. Gohar Taj. 1 he award was filed in Court but before it was made the rule of the Court the West Pakistan Land Reforms Regulation (Martial Law Regulation No. 64 hereinafter described as the Regulation) was promulgated. Respondent No. 3 claiming to be the owner of 7/96 shares out of the estate of her late father filed her LC I and LC II Forms before the Deputy Land Commissioner which were rejected by him as she had already parted with her share in favour of her brothers by registered deeds mentioned above and what was owned by her did not exceed the ceiling under the Regulation. Her appeal to the Land Commissioner was also dismissed. Her contention before the Land Commissioner was that the gift deeds allegedly made by her had been declared void by the Arbitrator and that she should be considered the owner of 7/96 shares out of her father's estate and allowed to retain 3600 produce index units over and above the area which she could gift to her dependents under the Martial Law Regulation. She took the matter to the Chief Land Commissioner in second appeal which was accepted and her case was remanded to the Deputy Land Commissioner, Mardan. In the further proceedings that continued before the Land Commission Authorities ending with the decision of the Land Commission itself on the 14th of May 1960 it was ordered that the fate of her claim under the Regulation will depend on the decision of the Civil Court, wherein the award of the Arbitrator had been filed. In the Civil Court a new develop ment took place. The parties filed a compromise deed wherein besides other terms it was agreed that Mst. Gohar Taj was to get complete and full satisfaction of her Islamic law share in the estate of her father out of the agricultural land surrendered by the other heirs and resumed by the Government under the Regulation and that she would have no claim to any part of lands retained by those heirs themselves. The Civil Court passed a decree on the basis of this compromise without any reference to the award. On the basis of this decree the Land Commission Authorities have permitted Mst. Gohar Taj to file fresh forms, to select the area of her choice which she wants to retain. Amongst other lands her choice has fallen on the lands in possession of the petitioners from which she has sought their eviction.
The petitioners filed a writ petition in the High Court calling in question the action of the Land Commission Authorities on the ground that the land having been surrendered and resumed by the Government under the Regulation was in their possession as its prospective purchasers in their own right, under para. 19 of the Regulation and the scheme made there under and could not now be made over to Mst. Gohar Taj. The High Court has dismissed the writ petition giving rise to the present petition for leave to appeal.
It is evident that in reviving the case of Mst. Gohar Tai, the Land Commission Authorities have based their decision on the decree of the Civil Court made on a compromise. The learned counsel for the petitioners has urged with great force that this decree was a nullity being based on a compromise by which the other heirs conceded Mst. Gohar Tafs claim to lands for which they had no title having surrendered it in favour of the State. It is also submitted that the decree made on the compromise was invalid; as it could not be passed without in the first instance superseding or remitting the award as required by law.
As the points raised are of importance and require examina tion, we grant leave to appeal. Security in the sum of Rs. 1,000
Status quo as to possession will continue.
Leave granted.
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