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Writ Petition No. 261 of 1971, decided on 19th November 1978;

Rebabilitation Settlement Scheme (Punjab)-

. Paras. 67, 67-A, 67-B read with Scbed. VI and Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act (XXV of 1975), S. 3--Mutation of inheritance of deceased rightholder-Provisional-Can be opened at instance of heir left out or where any heir fraudulently or falsely got entire claim to exclusion of others-Propositus holding land as limited owner and mutation sanctioned before confirmation of land and also behind back of petitioner-Mutation, in circumstances, held, could only be sanctioned by Rehabilitation Authority-Commissioner's order holding matter to fall within jurisdiction of civil Court set aside and case remanded for decision afresh in accordance with law.-[Mutation-Muhammadan Law-Remand of case].

Mst. Ghulam Fatima v. Muhammad .Hussain and 5 others P L D 1976 S C 729 distinguished.

Muhammad Yaqub v. Member, Board of Revenue, Lahore and 3 others P L D 1973 S C 304 ; Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shafi and others P L D 1971 S C 751 ; Muhammad Ibrahim's case P L D 1977 Lah. 399 and Rashid Ahmad's case P L D 1962 S C 42 ref.

Sh. Ghias Muhammad for Petitioner.

Nemo for Respondent No. 1.

Ch. Abdul Waheed Saleem for Respondents Nos. 2 and 3.

Ch. Abdul Aziz for Respondents Nos. 4 and 5.

Nemo for Respondent No. 6.

Date of hearing : 6th November 1978.

The dispute in this case is about the inheritance of Mst. Meero widow of Nemat Khan, who died in India. Mst. Meero according to the petitioners died in September, 1952 in Pakistan, whereas according to the contesting respondents she died in September, 1947. Her claim was filed by Abdul Aziz respondent No. 3, as Attorney. The claim was verified and a mutation of inheritance entered on 8th May, 1952 in favour of the respondents in Chak No. 80/10-R, Khanewal. Another mutation of inheritance was sanctioned on 15th October, 1953 in Chak No. 268/R. B., Lyallpur.

2. The petitioners who had settled in Chak No. 441, Bhalwal, District Sargodha, never knew of the submission of claim. Their father died in 1954. They, however, came to know of it in the year 1970 when they made an application on 19th January, 1970 for. review of the mutation dated 15th October, 1953. The Collector asked for a report on it from his subordinates. The Naib-Tehsildar held an enquiry and made a detailed report dated 3rd August, 1970. He upheld the entitlement of the petitioners as heirs of Mst. Meero and suggested that the previous mutation be rectified.

3. The Collector went through the report and vide his order dated 8th August, 1970 directed that as it was a mutation of inheritance of a rightholder it ought to have been sanctioned by the Rehabilitation authorities. He further held that neither the Revenue Officer nor the civil Court bad the jurisdiction to determine that question. He, therefore, directed that the record be corrected after hearing the parties.

4. Respondents 2 to 5 filed an appeal before the Additional Commissioner, Sargodha but the same was dismissed on 28th September, 1970 as not entertainable. On 6th October, 1970 proceedings were taken up to implement the order dated 8th August, 1970 of the Collector. A mutation of inheritance was sanctioned by A. R. C. in favour of the present petitioners. Respondents 2 to 5 appealed against the order but latter withdrew the same. They then filed a revision petition against the order dated 8th August, 1970 before the Commissioner impleading only Muhammad Shafi petitioner. This petition was heard and decided on 24th November, 1970 whereby the Commissioner held that the Revenue Courts had no jurisdiction in the matter and that the matter ought to have been decided by the civil Court. The petitioners filed a review petition but the same was dismissed on 8th December, 1970. A revision petition filed by him before the Member, Board of Revenue, also failed and was rejected on 27th December, 1970 and hence the present writ petition.

5. It is contended by the learned counsel that as the question to be decided was about the inheritance of a deceased right-holder or a rightholder, to whom no load had been confirmed, the matter lay exclusively within the jurisdiction of the Rehabilitation authorities and the order passed by the Collector on 8th August, 1970 was a perfectly valid order. The learned counsel also referred to para. 67 of the Rehabilitation Settlement Scheme read with Appendix VI attached to the Scheme, wherein it is clearly given that tl e mutation of inheritance of a deceased right-holder is only provisional and can be reopened or varied in case fresh facts are found.

6. The learner counsel for the respondents submitted that as the land in question had been confirmed and as no proceedings had been taken against the mutation dated 8th May, 1952 (Annexure R/2) the Collector had no right to interfere with the land allotted and confirmed: It was further submitted tat as the allotted land had been settled permanently under section 16 of tie Displaced Persons (Land Settlement) Act, since, 1964 the Collector had no jurisdiction to reopen the same. The learned counsel also relied on Mst. Glulam Fatima v. Muhammad Hussain and 5 others (P L D 106 S C 729), but the same is not applicable to , the present case. That was a decision in respect of the inheritance of a confirmed allottee and not a right holder who died before confirmation of any land in his favour. He also referred to a few other judgments to show that no petition lay against a mutation. Reference was also made to Muhammad Yaqub v. Member, Board of Revenue, Lahore and 3 others (P L D 1973 S C 304) and Additional Settlement Commissioner (Land) Sargodha v. Muhammad Shafi and others (P L D 1971 S C 791). The rule laid down in those cases was that the property allotted to a. female in lieu of a limited estate left by her in India would, on her death, revert to the heirs of last male owner and the succession would open on the termination of her limited interest. Admittedly, Mst. Meero died before 1st September, 1952 when no allotment had been mode. Reference was also made by the learned counsel to section 3 of the, Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1,975. The learned counsel also referred to the case of Muhammad Ibrahim (P L D 1977 Lah. 399). It was held in that case, that in that respect the Provincial Legislature rose to the occasion and "for the removal of difficulties of the lawful heirs of last male-holders in respect of limited estates held by refugee females and to protect their rights with respect to the said property", and also considering it as "expedient to extend the benefit of the decision of the Supreme Court of Pakistan to the persons aggrieved by the 'earlier, erroneous view', on the subject on 31-3-1975, promulgated the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act XXV of 1975 which was retrospective with effect from 15-3-1948-(the date when Custom as a rule of succession was abolished and was substituted by Muslim Personal Law (Shariat) Application (Act IX of 1948)-indicating that the persons aggrieved front the earlier erroneous decisions of old cases which may have become final and in which no appeals may have been filed would also be eligible. to avail of the correct law on the subject by filing necessary applications and having recourse to the remedies provided in the Punjab Act XXV of 1975. It is well settled that when a Court interprets a particular section or a provision of a statute, then that interpretation is supposed to be in existence right from the time and date when that section or provision was enacted and from that. point of view when the Supreme Court gave interpretation of the law on the subject, then obviously it was supposed to be in existence Tight from the beginning of the relevant law or statute interpreted by the Supreme Court."

. 7. Both the parties agreed that Mst. Meero held the land in question as a limited owner. There is also no dispute about the ftact that the land in Lyallpur had been confirmed on 15th May, 1954 while the one in Khanewal had been confirmed on 25th December, 1959. Both the mutations were sanctioned before the confirmation of land and that too behind the back of the petitioners. According to the case of Rashid Ahmad (PLD 1962 SC 42), the mutation of inheritance in such a case could only be sanctioned by ' the Rehabilitation' Authority. Further, according to para. 67 read with the Schedule VI of the Rehabilitation Settlement Scheme and its paras. 67-A hard 67-B, a mutation of inheritance of a deceased right holder is provisional and can be opened at the instance of an heir who had been left cut or, where any one of the heirs fraudulently or falsely got the entire claim to the exclusion of others.

8. The contention of the learned counsel that the original mutation had been sanctioned by a Rehabilitation authority and riot a Revenue Officer is in conflict with the. specific finding of the Collector in his order dated 8th August, 1970. The document now produced by the respondents as Annexure R/1 showing that mutation in Chak No. 248/11. B. was sanctioned by the Rehabilitation authority cannot be accepted as genuine. In any case, as held above, that mutation was provisional and no finality could be attached to it. Every heir is entitled to retain only his share and no one can object if another heir claims his, particularly when he had been excluded in proceedings which were void being violative of the rule of natural justice. Even otherwise, the mutation in question could be opened in view of the judgment, a portion of which has been reproduced in para. 6 above.

9. The order passed by the Commissioner, was, therefore, without lawful authority and of no legal effect. Thus the order dated 8th August, 1970 of the Collector is maintained. The competent authority shill rehear the parties and decide the matter afresh in accordance with law. In view of the fact that the question involved was not free from difcultgy, the patties shall bear their own costs.

S. A. H.

Petition accepted.

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