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Petition No. 581 of 1974, decided on 28th April, 1979.
----S. 25-Jurisdiction-Land permanently settled by Settlement Authorities before death of person-Settlement Authorities, held, had no jurisdiction to determine question of succession of such land.-[Jurisdiction-Succession].
Ghulam Fatima v. Muhammad Hussain P L D 1976 S C 729.
Hassan Mahmud Baig for Petitioners.
Naimatullah Qureshi for Respondents.
Date of hearing : 24th April, 1979.
In this petition the order of the Additional Settlement Commissioner '9 (Land), Hyderabad, dated 28th March, 1974 has been brought into challenge.
The relevant facts are that Yousaf Khan, son of Karima, was a claimant displaced person from agreed areas in India and he was given land bearing Survey Nos. 44/3, 51/2, 55/3, 96/10, 15 and 16 in Deh Mangria, Taluka Math, District Hyderabad under Khatuni dated 11th March, Yousaf died in 1975 - leaving behind Mst. Jannat as a widow, and Mst. Mukabir as his mother and Mst. Jannat as his sister who is now represented by the present petitioners'. The respondent No. 2 is challenging the claim of the petitioners 'that Mst. Jannat the sister of Yousaf Khan was alive at the time of the death of Yousaf Khan.
The Settlement Authorities have decided the question about the succession of Yousaf Khan and have come to the conclusion that Mst. Jannn sister of the deceased Yousaf Khan shall be excluded from inheriting the property of deceased Yousaf Khan. The position is that respondent No. 2 Sher Muhammad claims to be a residuary of the estate of deceased Yousaf, Khan and had contested the claim of heirs of Mst. Jannat the sister of deceased therefore the simple dispute was whether the petitioners can inherit the property of deceased Yousuf Khan as heirs of deceased Mst. Jannat who was alleged to have died after Yousaf Khan. The claim of the petitioners was negatived by the Additional Settlement Commissioner (Lands) Hyderabad by his order dated 28th March, 1974, after consider ing the evidence produced by Sher Muhammad respondent.
The petitioners were aggrieved against the said order and hence this petition.
Mr. Hassan Mahmood Baig, learned counsel for the petitioner has contended that deceased Yousuf Khan having died after the land in ques tion had been settled upon him permanently, the Settlement Authorities had no jurisdiction to determine the question of his succession. He relied upon P L D 1976 S C 729 where their Lordships of the Supreme Court have held that there is no provision of law or scheme authorising Settlement Authorities to determine questions of succession to estate of confirmed allottees and such questions have therefore to be decided by civil Courts, being beyond the purview of the Settlement Authorities. The net sub mission therefore is that the Settlement Authorities had no jurisdiction to determine the succession of the confirmed allottee Yousuf Khan. The fact of permanent settlement of land upon Yousuf Khan has been clearly alleged in para 1 of the petition and the Khatuni dated 11th March, 1957 has been filed which shows that the land had been allotted to deceased Yousuf Khan. There is no counter affidavit filed by the respondent No. 2 to the effect that there was no permanent settlement of land upon Yousuf Khan deceased. The Settlement Authorities had made no appearance in the matter. I am therefore taking it as fact alleged by the petitioner and not denied by the respondent No. 2 that land had been permanently settled upon Yousuf Khan deceased. Mr. Niamat Ullah Qureshi, learned counsel for respondent No. 2 has conceded that this is the correct position that the land had been permanently settled upon Yousuf Khan before his death and therefore in view of P L D 1976 S C 729, the Settlement Authorities had no jurisdiction to determine the succession of Yousuf Khan. The respondents Nos. 3 and 4 were served with notice of the petition but they have not cared to contest the same. In this view of the matter, the Additional Settlement Commissioner (Lands) Hyderabad had no jurisdiction to decide upon the succession of deceased Yousuf Khan and therefore the orders of the Settlement Authorities which were passed in respect of the succession of Yousuf Khan were without lawful authority and they are hereby set aside. If the parties intend to pursue the matter further they can get the succession determined through a competent forum. The petition is therefore allowed.
M. A. K. Petition allowed.
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