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Civil Petition for Special Leave to Appeal No. 28‑P of 1970, decided on 3rd April 1970.
(On appeal from the judgment and order of the West Pakistan High Court, Peshawar Bench, dated the 2nd October 1969, in Civil Further Regular Appeal No. 188 of 1961).
Art. 58(3)‑Point not raised in High Court‑Presumed to have been abandoned‑Cannot be allowed to be agitated in Supreme Court.
Peer Bakhsh Khan, Advocate Supreme Court instructed by Muhammad Tariq Khan, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing : 3rd April 1970.
The property in dispute is of Said Rehman son of Lal Gul, who was the owner of agricultural land and residential property .situate in village Matta Rustam Khel and Panjpao. On his death in the year 1932, his property was mutated in the name of his widow, Mst. Sahib Jamala. Mst. Sahib Jamala transferred the entice property inherited or received by her from her husband to the petitioners Mst. Sardara, wife of Saifur Rahim and Amir Nawaz minor son of Saifur Rahim. Mst. Sahib Jamala died in the year 1958. On her death, the heirs of Abdur Rahim son of Lal Gul, except Saifur Rahim, instituted a suit for possession of 174/288 share out of this property belonging to Said Rahman against the petitioners. They contended that Mst. Sahib Jamala widow of Said Rahman was a limited owner under custom. She could not transfer the whole property to the petitioners. The heirs of Abdur Rahim also alleged that there was a family arrangement between Abdur Rahman, the other son of Lal Gul that the property of Said Rahman would go to heirs of Abdur Rahim and the property of Gul Rahman, the other son of Lal Gul, who had died issueless, would go to Abdur Rahman.
The petitioners contested the suit. The learned Sub‑Judge, First Class, by judgment dated the 8th May 1961, decided all the issues in favour of the plaintiff respondents and passed a decree for possession in their favour regarding the following property :‑
(A) (i) 1/2 share of Khasra Nos. 1736 to 1740 situated in village Matta Palangzai.
(ii) Khasra Nos. 1769 and 1771 situated in village Matta Palangzai.
(B) (i) 1/2 share of Khasra No. 2685 situated in village Matta Rustam Khel,
(ii) Khasra No. 1139 situated in village Matta Rustam Khel.
(iii) 10/64 share of Khasra No. 2689 of Matta Rustam Khel.
(iv) 9/32 share of Khasra Nos. 1199, 2062/1200, 2061/1200, 1120, 1196, 1197 and 1198, situated in village Matta Rustam Khel.
(v) 10/128 share of Khasra Nos. 932, 989, 990, 1071, 1075, 1076, 1080, 1082, 995, 987/1,987/3 and 1092, situated in village Matta Rustam Khel.
(C) (i) Khasra Nos. 2745/2180, 2742/2179 and 2164 situated in village Punjpao.
(ii) 1/6th share of Khasra No. 2147 situated in village Panjpao.
(D) (i) 4 houses situated in village Panjpao.
(ii) 1/2 share of a house situated in village Panjpao.
The petitioners' appeal in the Court of District Judge, Peshawar, was dismissed by judgment dated the 23rd September, 1961. This judgment was challenged in Civil Further Regular Appeal No. 188 of 1961.
It will be noticed that Mst. Sahib Jamala claimed landed property to the extent of 25 Kanals, 2 Marlas in village Mian Isa on the basis of the dower deed (copy Exh. D. W. 1/13), executed by Said Rehman in favour of his wife, Mst. Sahib Jamala, on the 8th May 1922. The Courts below had accepted this claim and held the dower deed as valid document admissible in evidence. The petitioners claimed before the High Court that the plaintiffs' suit with respect to two Mianas out of the four Marlas in suit situated in village Mian Isa should have been dismissed. The learned Courts below dismissed this claim but the High Court in appeal, accepted the claim of the petitioners in respect of two Mianas given by Said Rahman to Mst. Sahib Jamala in the Abadi of village Mian Isa. The view of the Subordinate Courts that the property was situated in village Panjpao and, therefore, has not been proved to have been transferred to Mst. Sahib Jamala was set aside by the High Court with the following observation :‑--
"The finding of the learned trial Court that the two dowered Mianas are situated in Mian Isa and not Mauza Panjpao is erroneous. Mauza Panjpao is a revenue Mahal and village Mian Isa is part of it.
The High Court, therefore, held that the two houses transferred by dower deed to Mst. Sahib Jamala belonged to her and not to Said Rahman and the plaintiff‑respondents were not entitled to any share out of the two Mianas. A direction, therefore, was given that these two houses which were the property of Mst. Sahib Jamala should be distinctly separated from the four suit Mianas at the time of the execution of the decree.
The petitioners' claim with regard to other property belonging to Said Rahman was not accepted. The petitioners seek special leave to file an appeal against the judgment of the High Court .dated the 2nd October 1969.
In support of the petition, Mr. Peer Bakhsh Khan, learned counsel for the petitioners, has contended that Mst. Sahib Jamala was the occupancy tenant of the land in village Matta Palangzai which she had inherited from her husband Said Rahman. On payment of cash compensation she became the owner of this land under the North‑Western Frontier Province Tenancy Act and therefore, this land should have been given to the petitioners. In this connection, the learned counsel referred to para. 10 of the judgment of the trial Court in which following observations have been made :‑
"It is also to be noted that Mst. Sahib Jamala wife of Said Rahman is recorded occupancy tenant of Khasra Nos. 1177, 1120, 1121, 1127, 1128, 1119 and 1123. The previous number of Khasra No. 1117 was 997 while that of 1120 etc., 4396/ 105."
The contention of the learned counsel has not impressed us. In the first place, the question of occupancy tenancy and its conversion into full ownership was not raised before the High Court and, therefore, this point cannot be allowed to be agitated in this Court. It will be taken that this point was abandoned in the High Court. In any case from the judgment of the trial Court, it appears that the claims of the petitioners in respect of the above Khasra numbers were accepted and it was held that Mst. Sahib Jamala was the owner of this property. This is apparent from the following observation of the trial Judge, reproduced in the judgment of the High Court which finding has been accepted by the High Court :‑
"Mutation on the basis of the deed must have been attested, as in Misal‑e‑Haqiat of 1926‑27, Mst. Sahib Jamala is shown to be‑the occupancy tenant of these Khasra numbers and at that time it is to be noted her husband was alive. The genuine ness of the deed, in these circumstances, cannot be questioned. Plaintiffs' claim as regards Khasra Nos. 1177, 1120, 1121, 1127, 1128, 1119 and 1123 was, therefore, devoid of any force."
In view of this clear finding, the petitioners' claim regarding the occupancy tenancy of Mst. Sahib Jamala has been determined by the trial Court and it is not a live issue. There is no force in the petition which is dismissed.
Leave refused.
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