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Civil Petition for Special Leave to Appeal No. 1135 of 1975, decided on 25th February, 1981.
(On appeal from the judgment and order of the Lahore High Court Lahore, dated 29‑9‑1975 in R. S. A, No. 525 of 1975).
(a) Punjab Tenancy Act (XVI of 1887)‑
-----S. 114‑Occupancy tenancy‑Suit for possession on basis of gift‑ Special leave to appeal‑Granted by Supreme Court to consider whether plaintiffs had no right to institute suit as they lacked reversion ary rights in disputed occupancy tenancy.
(b) Constitution of Pakistan (1973)-
----Art. 185(3)‑Special leave to appeal to Supreme Court‑Objection not taken in suit at any stage‑Nevertheless, objection being funda mental, leave to appeal granted to consider same.
Sh. Abdur Rashid, Senior Advocate for Petitioner.
Nemo for Respondents.
Date of hearing : 25th February, 1981.
MUHAMMAD HALEEM,
J.‑One Mehra was the occupancy tenant of 200 kanals and 18 marlas of agricultural land, situate in village Yaru Khel Paka, Tehsil Mianwali. He died in 1925 leaving him surviving two widows, Mst. Jatti and Mst. Maryan ; and from the former a daughter Mst. Amir Khatoon. In regard to his occupancy rights in the agricultural land, inheritance mutation was sanctioned wherein the two widows were given equal shares. In 1952 the Punjab Tenancy Act was amended and by sec tion 114, the occupancy tenants were given proprietary rights subject to the payment of compensation. It was the case of the petitioner that compensation through been ion in No.1977, gifted the land to the petitioner and delivered its possession.
Mst. Amir Khatoon and Mst. Jatti, instituted a suit for the possession of the land against the petitioner and the controversy therein was mainly confined to the question as to whether Mst. Maryan had become the full owner, and, further, as to whether in that event, the gift was effective. The A trial Court dismissed the suit on 25th of July, 1977, but the appeal was accepted on 30th of May, 1975. The petitioner filed a Second Appeal which was dismissed in limine on 29th of September, 1975.
On the finding given by the High Court that Mst. Maryan had not become the absolute owner of the property, the learned counsel challenges the maintainability of the suit on the ground that Mst. Jatti and her daughter Mst. Amir Khatoon, had no legal right to institute the suit for possession as they had no reversionary Tights qua the share of Mst. Maryan in the land. This objection was not taken in the suit at any stage but as it is fundamental we would grant leave to appeal to the petitioner.
Security for costs Rs. 2,000 in the meantime status quo as to possession. The petitioner should file the amended petition within a fortnight and the appeal arising out of this petition shall be heard on the present record with liberty to the parties to file additional documents, if any
Leave granted.
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