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Civil Appeal No.131 of 1975, decided on 4th March, 1986.

(Against the judgment and order, dated 16‑7‑1974 of the Lahore High Court Lahore, in Writ Petition No.465‑R of 1974).

‑‑‑Art. 185(3)‑‑Land settlement‑‑Heirs of, right‑holder‑‑Share of entitlement‑‑Leave to appeal granted to vendees from one of heirs of deceased right‑holder to examine whether entitlement of their vendor had been correctly fixed so as to ensure that appellants were not deprived of any portion of land purchased by them except what was necessary under law applicable to case.

‑‑‑S. 12‑‑Transfer of Property Act (IV of 1882), S. 44‑‑Transfer of land‑‑Proposed and confirmed in name of deceased right‑holder‑‑At first one daughter recorded as exclusive heir but subsequently three daughters found to be his legal heirs and land allotted to them in equal shares‑‑Appellants purchased land from one of three heirs‑ Collateral's belated claim to inherit 1/3rd in said estate of deceased allowed by Settlement authorities‑‑Plea that two other daughters, had got their claim settled in their name separately, not proved from revenue record‑‑Entitlement of vendor reduced by Settlement authorities to 1/3rd out of 2/3rd available for three daughters‑‑Order impugned‑‑Decision of Settlement authorities being in accordance with law, upheld‑‑Appeal of vendees dismissed.

Malik Saeed Hassan, Senior Advocate Supreme Court instructed by S. Abid Nawaz, Advocate‑on‑Record (absent) for Appellants.

Abdul Aziz, Advocate and Ch. Ghulam Mujtaba, Advocate‑on- Record (both absent) for Respondents Nos. 1 to 3.

Maqbool Sadiq, Advocate Supreme Court and S. Inayat Hussain, Advocate‑on‑Record (absent) for Respondents Nos. 4 to 5.

Respondents Nos. 6 to 7: Ex parte.

Date of hearing: 4th March, 1986.

‑Leave to appeal was granted to the vendees from one of the heirs of the deceased right‑holder to examine whether the entitlement of their vendor had been correctly fixed so as to ensure that the appellants were not deprived of any portion of the land purchased by them except what was necessary under law applicable to the case.

Mst. Anwari, daughter of one Mehrban, was the temporary allottee of land in Chak 58/SB, Sargodha. She filed a claim in the name of her father, the deceased right‑holder Mehrban, which was verified for 3402 Produce Index Units. An allotment of 114 Kanlas of land equal to 1112 P.I. Units was confirmed against the entitlement of the deceased right -holder. Mst. Anwari was adjudged by mutation attested on 16‑10‑1953 to be the sole heir of Mehrban. Subsequently, mutation of inheritance of Mehrban was reviewed when it was found that Mst. Anwari had two other sisters, namely, Mst. Sarwari and Mst. Tamezan. The balance P.I. Units not settled in this Chak were got transferred to other estates, and according to the appellants, Mst. Sarwari and Mst. Tamezan got satisfied elsewhere their share of the entitlement. At a later stage, respondents No.4 and 5 appeared on the scene claiming to be collaterals of the deceased right‑holder Mehrban. Their claim to inherit 1/3rd share was allowed. The entitlement of Mst. Anwari was reduced to 1/3rd out of 2/3rd available for the daughters. The Rehabilitation Settlement authorities gave effect to the entitlement of the appellants in a manner to allow them only 1/3rd share the share of Mst. Anwri out of 114 Kanals of land. The case of the appellants throughout has remained that 114 Kanals land had fallen exclusively to the share of Mst Anwari as the two other" sisters had got the balance of the P.I. Units transferred to other estates where they had got it settled in their own exclusive names excluding Mst. Anwari altogether from such allotment. On this reasoning it was asserted that the whole of the allotment made of 114 Kanals should be treated as the 1/3rd share of Mst. Anwari in which the other sisters had no share and if the claim of the collaterals was allowed, they could get only 1/3rd out of its leaving 2/3rd for Mst. Anwari which she could transfer to the appellants. In this manner instead of 378 P.I. Units (1/3rd of the total entitlement of Mst. Anwri in the name of the deceased right‑holder) she would be entitled to 2/3rd (756 P.I. Units out of 1,134 P..I. Units retained in that Chak). The appeal within the Settlement Department filed by the appellants failed on 9‑11‑1965 , Their revision too failed on 16‑5‑1966 and their constitutional petition was dismissed on 16‑7‑1974.

The case of the appellants before us is that collaterals had so much delayed laying claim to a share in the estate of deceased right -holder Mehrban that they were not entitled to claim any and the 1/3rd share allowed by the Settlement authorities could not be allowed to them. They have reiterated their claim that the three daughters had separated their share out of the entitlement of the deceased right‑holder and 114 Kanals allotted to Mst. Anwari in Chak 58/SB, Sargodha, was exclusively and entirely her share as was the allotment elsewhere, of the other sisters. In the circumstances, even if the collaterals were to be given 1/3rd the remainder i.e. 2/3rd of 114 Kanals was exclusively owned by Mst. Anwari and they were entitled to retain the same as bona fide purchasers. Finally, it was asserted that as the two sisters had allowed Mst. Anwari to be recorded as the exclusive owner of the property and had separately obtained their own allotments elsewhere they could not object to such a sale by Mst. Anwari in favour of the appellants.

In order to locate and ensure the factual basis of the contentions of the appellants with regard to the exclusive allotment to Mst. Anwari and to other sisters elsewhere an order was passed by this Court on 17‑4‑1975 the relevant portion of which reads as hereunder:‑

"Learned counsel realising the difficulty in his way wants time to amend his petition and to produce further documents to show that the other two sisters of Mst. Anwari had transferred their claims to other districts. The time prayed for is allowed. The petition is adjourned to another date in office in the next session of the Court at Lahore" .

Another order was then passed on 19‑5‑1975 in continuation of the earlier order, the relevant portion of which is as hereunder:‑

"Pursuant to the penultimate paragraph of the said order the petitioners have filed amended petitions and copies of certain documents. They have, however, not filed RL‑II issued in favour of respondents 2 and 3 to show whether, if at all, they were allotted any land in respect of the claim of their deceased father Mehrban elsewhere than in the district of Sargodha.

Mr. Aziz Ahmad Bajwa, learned counsel for respondents 1 to 3 requests for short adjournment to enable him to take instructions from his clients in respect of the averments made in the amended petition".

In the order granting leave to appeal, the following directions are recorded:‑

"The original confirmation orders in forms RL‑II in favour of the three sisters. Mst. Anwari, Mst. Sarwari and Mst. Tamezon, shall be called from the respective districts so as to be available at the time of the hearing of the appeal. The learned counsel for the petitioners shall furnish full particulars in this behalf."

It is to be noted that the appellants have not provided the particulars of the RL‑Its in which the allotment to other sisters were made nor they themselves filed copies of RL‑11 to bear out the facts asserted by them. Instead, copies of Jamabandi have been filed which show the holding of the two other sisters in various estates. These Jamabandies cannot serve the purpose of RL‑II, the basic document which could reflect the nature of the allotments made and the legal effect thereof.

Para. 67‑B of the Rehabilitation Settlement Scheme was applicable to the admitted facts of the case. It provides as hereunder:‑

"67‑B. The rights of the deceased right-holders should be conferred upon their successors after proper enquiry and in and when allotments are made to the successors they should receive land only to the extent of their respective shares in the inheritance. (Reference former Punjab Government Memorandum No. 3705‑R(L)s dated 2nd June, 1953 and No.9448‑R(L)) dated 13th November, 1953).

A reference to the RL‑II of Mst. Anwari shows that the proposal was recorded in the name of Mehrban the deceased rightholder. The confirmation too was in his name. It was on the same RL‑II that at first Mst. Anwari was recorded as the exclusive heir of Mehrban and thereafter she alongwith Mst. Sarwari and Mst. Tamezon shown the allottees in equal shares. There was no exclusive allotment made to Mst. Anwari as such. In the circumstances, as against the allotment made against the name and claim of the deceased right‑holder the three sisters had to be shown as sharers and none of them as exclusive owner. The RL‑II relied upon by the appellants does not support the claim set out by them and the other RL‑II which could go a long way in establishing claim have not been placed on record in spite of three separate orders with regard to their prosecution. The orders passed by the Rehabilitation Settlement authorities impugned by the appellants are in accordance with law, for the proposal was entered in the name of the deceased right‑holder and confirmed in his name and all the three daughters are shown as his heirs. When the collaterals succeeded in claiming 1/3rd share in the same they have also been shown as heirs, co‑sharers of the same allotment. In view of the law referred to the Settlement authorities had no option but to reflect the factual, position in the manner in which they have done.

We find no merit in the appeal and dismiss the same' with no order as to costs. It appears that by an order of this Court, dated 23‑8‑1974 the appellants were called upon to furnish a security of Rs.10,000 to the satisfaction of the Assistant Commissioner, Sargodha with the direction that in case the appellants were unsuccessful, the aforesaid money should be untilised towards the payment of rent/mesne profits for the use and occupation of the land in dispute. In the circumstances of the case, we direct that the appellants shall be entitled to the refund of the security and that the party entitled to rent/mesne profit shall avail of the ordinary process of law in enforcing the claim.

M . I. Appeal dismissed.

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