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Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act (XXV of 1975)--

---Ss. 2 a 3--Civil Procedure Code (V of 1908), O.VI,R. 10--Limited ownership--Plea of--Determination--Return of plaint--Trial Court before determining plea of limited ownership of refugee female allottee, raised by plaintiff /respondent, decided question of jurisdiction of civil Court to try said suit--Trial Court dismissed suit and returned plaint for lack of jurisdiction to try that suit--Appellate Court on appeal remanded suit for fresh decision in accordance with law observing that plea of limited ownership should have been determined first before deciding question of jurisdiction of civil Court--Court, in view of provisions of Act XXV of 1975 upheld and maintained order of First Appellate Court and remanded case.

Additional Commissioner, Sargodha v. Muhammad Shafi and another P L D 1971 S C 791 ref.

Ch. Muhammad Sanaul-Haq for Appellant.

Mirza Manzoor Ahmad for Respondent..

Date of hearing: 17th October, 1984.

This first appeal is directed against the judgment, dated 11-3-1975 of the learned District Judge, Muzaffargarh whereby accepting the appeal of the respondents the judgment and decree of the trial Court was set aside the .suit was remanded for fresh decision in accordance with law.

2. The relevant facts, briefly stated, are that the respondents filed a suit for possession of 134 Kanals 4 Marlas of land situated in village Chhappar Khor Saren with the assertions that Muhammad Yousaf father of Mst. Ruqia was the last male holder of the suit land and he had died in India before partition and after his death Mst. Ruqia became the limited owner of the suit land. The suit land was allotted to Mst. Ruqia as per entries of R1,-II and Mutation No. 873 in respect of the name of the respondents on 13-1-1970 but in appeal the land was again transferred to Mst. Ruqia. It was further alleged that the orders of Rehabilitation Authorities were void and ineffective against their rights. Mst. Ruqia had sold the suit land in favour of the appellant-defendant as per Mutation No. 966, dated 20-4-1965. This sale was also challenged on the assertion that the same was illegal, void and ineffective against the rights of the respondents and that the sale was without consideration. The suit was contested by the appellant, inter alia, on the grounds that the civil Court had no jurisdiction to try the suit which was also barred by res judicata as well as by limitation and that the plaintiff had no cause of action. The learned trial Court after framing the necessary issues dismissed the suit, inter alia, holding that the civil Court had no jurisdiction. The plaint was resultantly ordered to be returned to the respondents-plaintiffs. The respondents-plaintiffs filed an appeal and the same was accepted, vide judgment and decree, dated 11--3-1975. The learned appellate Court remanded the suit for fresh decision observing that as the plea of the respondent that Mst. Ruqia was limited owner of the suit land was denied by the defendant-respondent the said plea should have been determined first before deciding the question of jurisdiction of the civil Court. It was conceded before me that though the most important question involved in the case was whether Mst. Ruqia was the limited owner or not, yet no evidence worth the name was produced on record. The question of jurisdiction does not appear to have been properly attended to by the learned trial Court. Learned appellate Court was, therefore, justified in remanding the suit for fresh decision. In the meanwhile Legislature has also intervened by enacting Ordinance V of 1975. This Ordinance was repealed by the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 (XXV of 1975) which came into force on 31-3-1975. This was thus enforced within a few days of the passing of the impugned judgment. Sections 2 and 3 of the Act may be reproduced:

"2. Removal of difficulties. Notwithstanding anything to the contrary contained in any other law for the time being in force, all decrees, judgments or orders passed in any suit, appeal or other proceedings by any Court or other authority treating a refugee female allottee as full owner of the property allotted to her in lieu of the property abandoned by her in India or to which she was otherwise entitled, as a limited owner, shall be of no legal effect and such suit, appeal or other proceedings shall, on an application made by an affected person within one year of the commencement of this Act, be decided afresh.

3. Permission to file fresh suits, etc. Any person aggrieved by an alienation or an order of succession with regard to any property allotted to a refugee female in lieu of the property abandoned by her in India or to which she was otherwise entitled as a limited owner under custom, and who could not challenge such alienation or succession, may call it in question in a Court or before any other authority within one year of this Act."

In view of the abovequoted provisions of the aforesaid Act, the rights of the parties in the suit land have to be determined afresh in accordance with the aforesaid enactment which was brought on the statute book to extend the benefits of the decision of the Supreme Court rendered in Additional Commissioner, Sargodha v. Muhammad Shafi and another PLD 1971 S C 791.

3. In view of above, there is no alternative but to uphold and maintain the order remanding the suit. The appeal is, therefore, dismissed with no order as to cost.

4. The matter is old one. The learned trial Court is directed to dispose of the suit within four months. The parties will be at liberty to produce evidence -and to raise all the pleas available to them under law in respect of the question noted by the learned District Judge in the remand order, dated 11-3-1975.

H . B . T . Appeal dismissed.

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