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Writ Petition No. 943 of 1963, decided on 26th July 1974.
----Art. 98-Other remedy open-Mutation cases-Alternative remedy by way of civil suit available-Writ petition not competent.
Ata-ur-Rehman v. Dost Muhammad Writ Petition No. 1226 of 1969 a Mien Ghulam Ahmad v. Muhammad Sarwar and others 1968 S C M R 573; Muhammad 1qhal v. S. A. M. Khan, Member, Board of Revenue West Pakistan, Lahore and 3 others P L D 1970 Lab. 614 ; Mst. Kaniz Fatima and 3 others v. Member, Revenue, Board of Revenue, Punjab, Lahore and 5 others P L D 1973 Lah. 495 ; The Province of East Pakistan v. Kshiti Dhar Roy and others P L D 1964 S C 636 ; Dr. M. O. Ghani Vice-Chancellor, univer sity of Dacca v. Dr. M. N. M. Mahmood P L D 1966 S C 802 ; Mst. Nazir Begum and others v. Province of West Pakistan and others P L D 1966 Lab. 195 ; Anjuman-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and the Government of West Pakistan through the Secretary Colonies Board of Revenue, West Pakistan Lahore P L D 1966 S C 639 ; .The Presiding Officer v. Sadruddin 4nsarl and another P L D 1967 S C 569; Mehboob Ali Malik v. The Province of West Pakistan and another P L D 1963 Lab. 575; Muhammad Nawaz etc. v. Member Roard of Revenue etc. P L D1973 Lab. 228 ; Lai and others v. Mian Dad and another 1968 S C M R 842(2) ; Syed Muhammad Munir and another v. Abu Nasa;. Member (judicial) Board of Revenue, Punjab. Lahore and 7 others P L D 1972 S C 346 ; Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shafi and others P L D 1971 S C 791 : Mst. Ilhamia and another v. Muhwali and others 1970 S C M R 631 and Umar Said and others v. Faiz Muhammad Khan and others P L D 1961 Pesh. 110 ref.
Mian Mahmood Ali Qasuri for Petitioners.
Respondents Nos. 1 and 14: Ex parte.
Sh. Ghias Muhammad for Respondents Nos. 2 to 6 and 8 to 13.
Dates of hearing : 3rd, 5th and 6th June 1974.
Four persons (the petitioners) who claimed to be the beneficiaries under a will have, by this writ petition, called in question order dated 24-7-63 passed by the Member Board of Revenue as final culmination of the mutation proceedings qua the death/inheritance of one Saleh Muhammad the property left by whom in the form of agricultural land was the subject matter of these proceedings.
2. The alleged facts narrated in the writ petition and reiterated by the learned counsel for the petitioners briefly stated are as follows;---
That despite his two marriages Saleh Muhammad had no issue. He died in March 1945. His two wives Mst. Gaulam Jannat and Mst. Zubaida Khatoon survived him. During his life time, in January 1928, Saleh Muhammad is stated to have made a registered will in favour of the petitioners (Annex: A' to the petition). The (Petitioners) claimed that they are close relations of Saleh Muhammad though not as clone as the respondents herein and further that on account of love and affection, "Saleh Muhammad devised his entire immovable property to the present petitioners". The two widows, however, it is admitted by them, were not intended by the testator to be deprived of their legal rights under custom to enjoy the property for life or till remarriage and right of inter se, succession by survivorship. He, therefore, provided that the will in favour of the petitioners was subject to the widows enjoying their "widows estate". It has also been asserted that "the widows were entitled to enjoy this estate indepen dently of the will according to the customary law relating to the Khokhar tribe of Shahpur District". According to the petitioners on the death of Saleh Muhammad, his estate was mutated in equal shares in favour of the petitioners and two widows "according to the rule of custom applicable to the Khokhar tribe of Shahpur District". The respondents reversioners of Saleh Muhammad, contested this 'Mutation but it is stated without any success, (The mutation order is Annex: 'B').
3: The widows are stated to have enjoyed the benefit "of the property as customary heirs" till 1961 when one of them Mst. Ghulam Jannat died. The Revenue Authorities were moved for sanctioning the mutation of one-half of Saleh Muhammad's property, which was in possession of Mst. Ghulam Jannat in accordance with the ordinary rule of succession (to
Saleh Muhammad's property) in accordance with the West Punjab Muslim personal Lam (Shariat Application) Act, 1948. Mutation No. 291 regarding village Lancer Makhdoom, Tehsil Chiniot. District Jhang was entered. The petitioners contested the claim of the respondents and asserted that if the property was not to be retained by the other widow by survivorship they and not the respondents were entitled to it by virtue of the will. The Assistant Collector vide order dated 20th June 1962, acted upon the will as is claimed, in accordance with Muslim Law and the petitioners were held entitled to only 1/3rd of the total property left by Satoh Muhammad. As to the re paining 2/3rd the two widows (including heirs) were held entitled to 1/4th share and so also the reversioners of the deceased were held entitled, according to their shares under Muslim Law. (Copy of the order is Annex. C'). Three appeals were filed against this order, one by the petitioners seeking the mutation in their favour of the entire property on the basis of the will. Some of the respondents filed an appeal challenging the order with regard to 1/3rd which was given to the petitioners and yet another set of respondents challenged the order in so far as it favoured the petitioners as also the other respondents. The Collector vile his orders dated 28-8-1962 sanctioned the mutat on of 1/8th share of the deceased widow Mst. Ghulam Jannat in favour of her heirs, 1/8th to the living widow and 3,14th share to the agnates of the deceased in accordance with the Muslim Law. The petitioners were excluded "in view of the supposed effect of section 3-A of the West Punjab Muslim Personal Law (Shariat Application Act, 1948 as amended". Copies ate (Annex. 'E' 1 to 'E' 3). The petitioners moved the Commissioner in appeal claiming to be the first and the only legatees "aid, therefore, asserted that the Collector's order was illegal. Description of the right of the widows in the will was claimed to be "recognition of their customary right" independently of the will. The Commissioner vide his order dated 12-2-63 (Annex. 'G') directed the mutat on of the entire property in favour of the petitioners. Two revisions Were filed from the respondents side before the Member, Board of Revenue and it is further asserted by the petitioners that the reversioners respondents contended therein that the petitioners were the second legatees and despite the will they were not entitled to succession in view of the provisions of section 3-A of the Act as amended. It is also asserted in the petition that "the genuineness of the will was not at all disputed by the respondents either in appeal or before the Board of Revenue. The revisions were accepted vide the impugned order dated 24-7-63 "holding that the present petitioners were the second legatees and were therefore in view of section 3-A not entitled to succession on the basis of the will (Copy Annex. 'J'). To impugn the said orders the petitioners then filed this writ petition.
In the written statement filed from the side of the respondents replies to the writ petition on merits contain the denial on facts and certain assumptions made with regard to the devolution of the property have also been controverted. There is no admission even with regard to that part of pars. No. 4 of the writ petition wherein the assertion qua the will has been made. On the other hand anything repentant to the claim of the respondents contained in the writ petition has been repudiated. The respondents however, also raised a preliminary objection that the writ petition raises a question of title to property for which an adequate remedy by way of civil suit is available. Otherwise also, in the context of the averments embodied in the writ petition involving inquiry as to existence or otherwise of custom, the controversy is such as can be more appropriately dealt with in a Civil Suit. In the circumstances the application of Article 98 of the Constitution of the Islamic Republic of Pakistan is not attracted to the case and the writ petition is liable to be dismissed on this short ground". It has also been raised as a preliminary objection that "without prejudice to the stand, taken up by the answering respondent in denial of the petitioners claim, it is submitted that the petitioners have no locus stands to maintain the present petition, even on their own averments as to their entitlement."
5. Learned counsel for the respondents in the very outset seriously raised the preliminary objection that the writ petition is not competent. He also pointed out that the petitioners have no locus satandi to file this writ petition even on the basis of the facts alleged in the writ petition in that the case of the second widow has yet to be dealt with. The reply of the learned counsel for the petitioners, that the position has changed since the filing of the writ petition because the second widow has also died during the pendency of the writ petition and that the mutation in that behalf has been decided, was not accepted by the learned counsel for the respondents as enough to confer any locus standi on the petitioners. A third preliminary objection was also raised with regard to the death of respondent No. 7 and the consequential abatement of the writ petition as observed by this Court in the order dated 10-4-1972. He (learned counsel for the respondents) opted for the time being, to argue only the Drat mentioned preliminary objection and stated that he would defer the arguments on the other two preliminary objections till after the decision of the first one. Both the learned counsel agreed on this arrangement. Consequently, arguments have been addressed on the preliminary objection that this writ petition is not competent. While elaborating this argument learned counsel for the respondents relying on some of my own judgment including on- dated 28th February 1973, in Ata-ur-Rehman v. Dost Muhammad Writ Petition No. 1226 of 1969 contended that essentially the controversy is with regard to the succession to the property of Mst. Ghulam Jannat, Saleh Muhammad and the consequent mutation orders, which are always subject to a decree of the civil Court. He also contended that the mutation relates to inheritance and raises a question of title involving inquiry into the application or otherwise of custom therefore it is not a fit subject for writ jurisdiction. He further contended that the writ petition is directed against the mutation proceedings wherein essentially only fiscal inquiry is made and does not finally decide the question of title, and as an effective adequate remedy by way of civil suit is available, therefore the remedy by way of writ is not competent. In this behalf learned counsel relied on the specific constitutional bar. He also relied on the several rulings of the Supreme Court and this Court wherein it has been held that orders on mutation proceedings cannot be brought under challenge in writ jurisdiction. In particular he referred to Mian Ghufam Ahmad v. Muhammad Sarwar and others (1968 S C M R 573). Muhammad 1qbal v. A. M. Khon, Member, Board of Revenue, West Pakistan, Lahore and 3 others (P L D 1970 Lah. 614) and Mst. Kaniz Fatima and 3 others v. Member (Revenue), Board of Revenue. Punjab, Lahore and S others (P L D 1973 Lah. 495) and lastly in the form of general proposition he contended that where the question of title is involved the proper remedy is by way of Civil Suit and not through writ petition. In this behalf he relied on The Province of East Pakistan v. Kshiti Dhar Roy and others (PLD1964SC636 ), Dr. M. O. Ghani, Vice-Chancellor, University of Dacca v. Dr. N. M. Mahmood (PLD1966SC802
) and Mst. Nazir Begum and others v. Province of West Pakistan and others (P L D 1966 Lab. 195). Learned counsel for the petitioners in reply contended that the view held by me in several other writ petitions wherein mutation orders were brought under challenge needs modification, and alternatively, according to him in the present case, if the factum of will remains undisputed it is only the question of law which needs to be resolved, therefore, alternative remedy by way of suit is neither proper nor adequate. He has relied on Anjumon-e-Ahmadiya, Sargodha v. The Deputy Commissioner, Sargodha and the Government of West Pakistan through the Secretary Colonies Board of Revenue, West Pakistan, Lahore (P L D 1966 S C 639 ), The Presiding Officer v. Sadruddin Ansari and another (P L D 1967 S C 569) and Mahboob Ali Malik v. The Province of West Pakistan and another (P L D 1963 Lab. 575 ).
6. Learned counsel for the petitioners took me through the various provisions of the Land Revenue Act as also the relevant rules and instructions with regard to mutation and preparation of revenue record but after carefully applying my mind to the arguments of both the learned counsel in view of the controversy having already been settled in judicial pronouncements of the superior Courts particularly of the Supreme Court, I am unable to change my view already expressed in this behalf. In Muhammad Nawaz etc. Member Board of Revenue etc. (P L D 1973 Lah. 228) I held that remedy by way of civil suit was available for correction of revenue records. It was observed that "such like entries and those on mutations do not create title over the property and indeed writ jurisdiction is not intended for such purposes." Reliance was placed on Mian Ghulam Ahmad v. Muhammad Sarwar and others (1968 S C M R 573 ) Lai and others v. Mian Dad and another (1968 S C M R 842) and Muhammad Iqbal v. S. A. M. Khan, Member Board of Revenue West Pakistan, Lahore and three others (P L D 1970 Lah. 614 ). Ruling of the Supreme Court, namely. Seed Muhammad Munir and another v. Abu Nasar, Member (Judicial) Board of Revenue Punjab, Lahore and 7 others (PLD1972SC346) cited in support of the writ petition was distinguished on the basis that where remedy by way of civil suit was barred, as in the case of mutation under the laws relating to displaced persons (land cases) a writ petition would be competent. An earlier ruling of the Supreme Court namely, Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shafi and others (PLD1971SC791) was also referred in this behalf. There are other rulings in which somewhat similar view was held. They are Mst. Ilhamia and another v. Muhwall and others (1970SCMR631), Umar Said and others v. Faiz Muhammad Khan and others (PLD1961Peah.110 ) and the latest one is a Division Bench ruling of this Court Mst. Kaniz Fatima and three others v. Member (Revenue), Board of Revenue, Punjab, Lahore and five others (P L D 1973 Lah. 495 ) in which the earlier view held in Muhammad Iqbal v. S. A. M. Khan, Member, Board of Revenue, West Pakistan, Lahore and three others has been reiterated. In so far as the general proposition (leaving aside the question of mutation) with regard to the alternative remedy is concerned the rulings of the Supreme Court cited by the learned counsel for the respondents. in the cases of Kshiti Dhar :Roy and the University of Dacca no doubt generally support him, But their Lordships having already given rulings on cases arising out of mutation orders which have been referred to above, it is not necessary to enter into a detailed discussion of the general question of alternative remedy. Same observation would apply to the two rulings of the Supreme Court cited by the learned counsel for the petitioner, one in the case of Sadruddin Ansari and the other of Anjuman-e-Ahmadiya they need not be analysed because of the same reason, namely there are direct rulings of the Supreme Court on the question of alternative remedy, in cases of mutation. It needs to be clarified here that as already held by me in some cases the question of alternative remedy would not arise when it (alternative remedy) A is barred. This might be treated as only an exception to the general rule within which the present case falls that in case of mutation adequate alterna tive remedy by way of civil suit is available, therefore, the writ petition is not competent.
7. Before parting with this case, it needs to be clarified that I have mot made any comment of my own on the assertions made by the parties on questions of fact or law not even with regard to the meaning/ interpretation of the orders passed by the Revenue Authoritie3. This course has been adopted for obvious reasons, not to prejudice the case of any party on merits It also needs to be mentioned that I have avoided detailed discussion on the maintainability of writ petition in case of mutation, because it would have amounted to repetition of what has been discussed by me in about half a dozen cases in which I held the same view. In particular, reference may be made to cases of Muhammad Nawaz and Ata-uT-Rehman.
8. In the light of the above discussion I upbold the first preliminary objection raised by the learned counsel for the respondents and hold that this writ petition is not competent. Same accordingly is dismissed but there shall be no order as to costs.
K.B.A. Petition dismissed:
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