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Civil Petition No. 1378 of 1983, decided on 10th April, 1984.
(On appeal from the judgment dated 5‑11‑1983 of the Lahore High Court, Lahore in R.S.A. No. 756 of 1976).
Constitution of Pakistan (1973)
‑‑‑Art. 185(3)‑‑Colonization of Government Lands (Punjab) Act (V of 1912), Ss. 19 & 19‑A‑‑‑State land‑‑Allotment to ejected tenant‑‑Succession to deceased tenant's right‑‑Will of deceased bequeathing his property in favour of petitioner made at time when State land stood resumed by Government‑‑‑ Land restored to allottee after his death‑‑Held, petitioner could not claim ownership of or right to suit land in circumstances of case‑‑Leave to appeal refused.
Ch. Muhammad Hasan, Advocate Supreme Court and Rana Maqbool Ahmad, Advocate‑on‑Record for Petitioner.
Ch. Khalil‑ur‑Rehman, Senior Advocate Supreme Court and Sh. Salahuddin, Advocate‑on‑Record for Respondent.
Date of hearing: 10th April 1984.
J‑‑ One Lal Din son of Rahim Bakhsh was given, in his capacity as an ejected tenant, a temporary allotment of State land measuring 43 Kanals 3 Marlas. This land however, was resumed by the Collector, Faisalabad vide his order, dated 18‑5‑1966. The appeal and the revision against the aforesaid order of resumption before the Commissioner and the Member, Board of Revenue, having failed he filed a writ petition in the Lahore High Court, which was ultimately allowed and the case remanded to the Member, Board of Revenue for decision afresh. In the meantime, Lal Din died on 19‑7‑1970.
Pursuant to the remand order made by the High Court, the Board of Revenue, by its order dated. 2‑6‑1971, found the order of resumption to be unjustified and held that Lal Din was entitled to its restoration.
A question then arose as to who were his heirs, so as to be benefited by the order passed by the Member, Board of Revenue. The petitioner, admittedly, was not an heir of Lal Din but claimed that the deceased had, by a Will dated 18‑10‑1969, bequeathed his entire property including the rights in the above State land in his favour. He, therefore, filed a suit for a declaration that he was owner in possession of the suit land. This suit was resisted by the respondent, who claimed to be the daughter of Lal Din. The learned trial Court dismissed the suit of the petitioner on 27‑1‑1976. His appeal was dismissed on 30‑7‑1976 by the learned Additional District Judge. The second appeal, filed by the petitioner in the High Court, was also dismissed mainly on the ground that the petitioner was not entitled to any part of the State land because at the time when the Will was made, the proprietary rights had not been conferred on the deceased and any alienation of the property by Lal Din was hit by section 19 of the Colonization of the Government Lands (Punjab) Act, 1912. It was, however, held that the Will was effective to the extent of 1/3rd of the property of the deceased other than the land in dispute. In other words, the judgment and decree of the Courts below were upheld in respect of the State land, but as regards the rest of the property of Lal Din, if any, the suit was decreed to the effect that the Will would be operative to the extent of 1/3rd of the said estate. This petition for leave to appeal is directed against the last‑mentioned order of the High Court.
Ch. Muhammad Hasan, in support of this petition for leave to appeal, has submitted that the Courts below have overlooked the provisions of sections 19‑A of the Colonization of Government Lands (Punjab) Act, 1912, whereby Muslim Shariat Law has been made applicable in respect of succession to tenancy rights held by a Muslim tenant. It was argued that in case of a conflict between the provisions of sections 19 and 19‑A, the provisions of the latter section would prevail over the provisions of section 19 on account of the latter being a subsequent legislation on the subject.
It is not necessary to examine the above contention in any great detail because it is manifest that the Will, dated 18‑10‑1969 made by Lal Din was made at a time when the State land, now in dispute, stood resumed by the Government and the deceased had no rights therein. It was only on 2‑6‑1971 that the land was restored in favour of Lal Din. However, he had already died on 19‑7‑1970 before the restoration of the land to him.
No other ground was pressed. This petition, therefore, fails and is dismissed hereby.
S. Q. Petition dismissed.
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