Hameed

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

C.R. No._____________/2001 1.

Hameed

Sons of Bahar, caste Rajpoot,

2.

Suleman

R/o Mouza Johar Goth, Tehsil Matli District Hyderabad (Sind). Petitioners VERSUS

1. Abdul Qadeer 2. Muhammad Rafique Sons of Suleman, caste Rajpoot, 3. Muhammad Siddique R/o Mouza Billoo Wala, Tehsil 4. Abdur Razzaq

& District Lodhran.

5. Nazir Ali 6. Muhammad Hanif S/o Maula Bakhsh 7. Mst. Qatban (deceased) 7(a). Muhammad Sharif 7(b). Nazeer Ahamd

sons

7(c). Muhammad Mursaleen 7(d). Mst. Toofi

Mst. Qatban & Ali Muhammad

daughters

(deceased)

7(e). Mst. Hajran 7(a) to 7(e) Rjapoot by caste, residents of Chah Matti Wala, Mouza Billoo Wala, Tehsil & District Lodhran. 8. Mst. Siddiqan daughters

Allah Bakhsh, caste Rajpoot,

9. Mst. Fatima

R/o Mouza Sarai, Tehsil & District Multan. 10.Mst. Jameela daughter of Allah Bakhsh, caste Rajpoot, R/o Mouza Moulvi Sikandar Wala, Tehsil & District Multan. 11.Province of Punjab, through District Collector, Lodhran. 12.Member Board of Revenue, Punjab, Lahore. Respondents

Civil Revision against the judgment and decree dated 13.6.2001 passed by Ch. Nabi Ahmad Additional District Judge, Lodhran, whereby he dismissed the appeal of the petitioners/defendants filed against the judgment and decree dated 22.9.2000 passed by Mr. Muhammad Sharif Janjua, Senior Civil Judge, Lodhran, decreeing the declaratory suit filed by the plaintiffs/respondents No. 1 to 6. CLAIM IN APPEAL: To set aside both the impugned judgments and decrees of the learned lower courts and to dismiss the plaintiffs’ suit with cost.

Value of Civil Revision: Rs. 400/- as mentioned in the decree sheet of the Trial Court.

Respectfully Sheweth: 1. That brief facts of the case as per averments of the plaint of the suit of respondents/plaintiffs No. 1 to 6 are that the land in dispute originally owned and possessed by their uncle namely Allah Bakhsh, who died in India prior to the creation of Pakistan and the land in question was transferred in favour of his widow Mst. Saeeda as limited owner under the Customary Law. After the division of the sub-continent, Mst. Saeeda Bibi, the said widow of Allah Bakhsh deceased, on her migration to Pakistan, filed a claim. She was allotted land in lieu of the land abandoned by her in India and now on her death, the defendants/petitioners in league with the Revenue Staff, got sanctioned her Mutation of inheritance No. 83 dated 11.4.91 in favour of daughter = 2/3 shares; and remaining 1/3rd shares in favour of defendants No. 1 to 3. It was alleged that this Mutation No. 83 was sanctioned against the provision of law by showing Mst. Saeeda Bibi widow of Allah Bakhsh as full owner. It was further alleged that the plaintiffs/respondents No. 1 to 6 challenged the Mutation of

inheritance No. 83 dated 11.4.91 by filing an appeal before the A.C/Collector, Lodhran, which was rejected vide his order dated 22.10.91. Being aggrieved of the said order, they filed an appeal before the Additional Commissioner (R) Multan and the same was accepted vide his order dated 27.7.92. However, the defendants/petitioners being aggrieved by this order of the Additional Commissioner, preferred a Revision Petition before Member Board of Revenue. The same was accepted vide order dated 19.10.94. Thereafter, the plaintiffs/respondents No. 1 to 6 challenged the validity of the order of M.B.R. by filing a writ petition No. 5075/94 in the Hon’ble Lahore High Court, Multan Bench, Multan; and the same was rejected with the observation that the plaintiffs/respondents No. 1 to 6 may go to Civil Court if so advised. The suit was resisted by the defendants and out of the pleadings of the parties as many as 12 issues were framed including issue No. 4, 7, 8 & 9 which read as under: Issue No. 4. Whether the suit is barred by time? OPD. Issue No. 7. Whetehr the family of Allah Bakhsh (deceased) was governed by custom, in the matter of inheritance, if so, what was that custom? OPP. Issue No. 8. Whether Mst. Saeeda Bibi was only limited owner of the suit land? OPP Issue No. 9. Whether the orders dated 19.10.94 passed by the Member Board of Revenue are illegal against facts, void, ineffective against the plaintiffs’ rights and liable to cancellation? OPP Certified copies of plaint, written statements, issues, judgments of Senior Civil Judge and decree are attached as Annexes “A, B + B/1, C, D & D/1” respectively. 2. That after recording evidence, the learned Trial Court decreed the suit in favour of plaintiffs and against the defendants vide judgment and decree dated 22.9.2000 (impugned). Certified copies of plaintiffs’ oral evidence, documentary evidence; and

defendants’ oral and documentary evidence are attached as Annexes “E, E/1, F & F/1” respectively. 3. That the defendants/petitioners being aggrieved by the aforesaid judgment and decree, preferred an appeal, which was dismissed vide judgment and decree dated 13.6.2001. Hence, this Revision Petition. Certified copy of grounds of appeal is attached as Annex “G”. Certified copies of judgment and decree of District Judge are attached as Annexes “H & H/1”respectively. 4. That both the impugned judgments and decrees have been passed illegally on the following amongst others: GROUNDS i)

That there is no convincing evidence on the record. That the family of Allah Bakhsh deceased was governed by custom in the matter of inheritance and that Mst. Saeeda inherited the land in dispute under custom as limited owner. She was recorded in the Revenue Record as full owner and also she was allotted land in Pakistan in lieu of land abandoned by her in India as full owner. To hold otherwise is based on no evidence and as such both the learned courts below while passing the judgments and decrees (impugned) have acted illegally and with material irregularity.

ii)

That even otherwise, the suit being barred by limitation was bound to be dismissed. It is an admitted position that after the enforcement of Muslim Personal Law (Shariat) Application (Removal of difficulties) Act, XXV of 1975, the plaintiffs did not make any application within one year as contemplated by sections 2 & 3 of the said act XXV of 1975, which was made enforceable from 31.3.1975. Under section 2 of this act, the last date for making such application was 31.3.1976, while the present suit was filed on 26.10.94 and as such it was hopelessly time barred. Sub section (2) of section 1 of this act required that “the act shall

come into force at once, but shall be deemed to have taken effect on and from 15.3.1948.” Prior to this Mst. Saeeda was all the time treated as full owner of the property allotted to her in lieu of the property abandoned by her in India. This title of Mst. Saeeda could liable to be challenged under section 2 of the Act XXV of 1975. The plaintiffs’ failure to challenge it within one year of the enforcement of the said act, Mst. Saeeda shall be have to be treated as full owner and on her demise, her property was inherited by her legal heirs. And Mutation No. 83 as such was sanctioned very rightly by the A.C. Collector IInd Grade, and the same was upheld by the learned Member Board of Revenue, Punjab, Lahore. Wherefore, it is respectfully prayed that this Hon’ble court may be pleased to accept the Revision Petition and by setting aside the impugned judgments and decrees of both the learned courts below, the plaintiffs suit be dismissed with cost throughout. Humble petitioners, Dated: 28.6.2001 Through: Zafar Iqbal Khan, Advocate High Court, 124-District Courts, Multan. C.C. No. 2216 CERTIFICATE: Certified as per instructions of the client, that this is the first Revision petition on the subject matter. No such petition has earlier been filed before this Hon’ble Court. Advocate IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

C.R. No. ______________/2001

Hameed etc.

Vs.

Abdul Qadeer etc.

AFFIDAVIT of: Hameed son of Bahar, caste Rajpoot, R/o Mouza Johar Goth, Tehsil Matli District Hyderabad (Sind).

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above-mentioned petition are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT

Verification: Verified on oath at Multan, this _____ day of June 2001 that the contents of this affidavit are true & correct to the best of my knowledge and belief. DEPONENT

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

C.R. No. ______________/2001

Hameed etc.

Vs.

Abdul Qadeer etc.

APPLICATION U/s 151 of C.P.C. for the grant of Stay.

Respectfully Sheweth:1.

That the above captioned Civil Revision Petition has been filed before this Hon’ble Court.

2.

That in view of the grounds of revision petition there is every chance of success. The plaintiffs’ suit is prima facie time barred and there is no evidence whatsoever on the record to prove that family of Allah Bakshh deceased governed under custom in inheritance matter. There is also no proof on the record that Mst. Saeeda inherited the property of her husband as limited owner. The revenue record shows that she was full owner of the property. Both the judgments and decrees of the learned lower courts are whimsical.

3.

That the respondents No. 1 to 6 are bent upon to dispose of this property. If they are succeeded in their designs, it will open a further gate of litigation and the petitioners shall suffer an irreparable loss.

4.

That balance of convenience also tilts in favour of the petitioners in that suit property be preserved till the decision of the revision petition.

5.

Affidavit is attached.

Wherefore, it is respectfully prayed that this application may be accepted and a an order be passed keeping the suit property in status quo till the decision of the revision petition. APPLICANTS Dated: __________

Through: Zafar Iqbal Khan, Advocate High Court, 124-District Courts, Multan. C.C. No. 2216

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

C.R. No. ______________/2001

Hameed etc.

Vs.

Abdul Qadeer etc.

STAY APPLICATION.

AFFIDAVIT of: Hameed son of Bahar, caste Rajpoot, R/o Mouza Johar Goth, Tehsil Matli District Hyderabad (Sind).

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above-mentioned application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT

Verification: Verified on oath at Multan, this _____ day of June 2001 that the contents of this affidavit are true & correct to the best of my knowledge and belief. DEPONENT

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

C.R. No. ______________/2001 Hameed etc.

Vs.

Abdul Qadeer etc.

INDEX S. No. DETAIL OF DOCUMENTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

ANNEXES PAGES

Civil Revision. Affidavit. Plaint. Written Statement. Written Statement. Issues. Judgment & decree of S.C.J. Judgment & decree of S.C.J. Oral evidence of plaintiff. Documentary evidence of plaintiff. Oral evidence of respondents. Documentary evidence of respondents Grounds of Appeal. Judgment of Appeal. Decree of Appeal. Stay Application. Affidavit. Power of attorney.

A B B/1 C D D/1 E E/1 F F/1 G H H/1

PETITIONERS Dated: ____________ Through: Zafar Iqbal Khan, Advocate High Court, 124-District Courts, Multan. C.C. No. 2216 IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

In re: C.M. No. __________/2001 In W.P. No. 640/ 2001 Hameed etc.

Vs.

Abdul Qadeer etc.

Application under section 151 C.P.C. for the grant of Stay Orders. Respectfully Sheweth: 1. That the above captioned C.R. No. 640/2001was admitted for regular hearing on 3.7.2001 by his lordship Mr. Justice Nazeer Ahmad Siddiqui, J. 2. That the applicants (revision petitioners) are recorded in the Revenue Record as owner in possession of the property in dispute as legal heirs of Mst. Saeeda who died in the year 1990. Copy of Register Haqdaran Zameen is Annex “J” & copy of Khasra Girdawari is Annex “J/1”. 3. That Mst. Saeeda as per Revenue Record was full owner of the property and on her demise, in 1990, mutation of inheritance was attested in favour of the applicants and as such they are owner in possession of the property in dispute and this decision of A.C.II was upheld by the learned Member Board of Revnue vide order dated 19.10.94 (Annex E/1 at Page 71). Against this order of Board of Revenue, W.P. No. 5075/1994 was also dismissed vide order dated 26.10.94 passed by the Hon’ble High Court (Annex P3 at page 55). As such the petitioners have a good prima facie case.

4. That respondents No. 1 to 6 are bent upon taking over possession of the property forcibly, loss of possession has always been considered as irreparable loss. 5. That balance of convenience also tilts in favour of the petitioners to keep the property in status quo till final decision of the civil revision. Wherefore, it is respectfully prayed that this Hon’ble Court may be pleased to pass an order restraining the respondents from dispossessing the petitioners forcibly and to maintain status quo till the final decision of Civil Revision. Affidavit is attached. Humble Applicants Dated: __________ (HAMEED ETC.) Through: Zafar Iqbal Khan, Advocate High Court, 124-District Courts, Multan. C.C. No. 2216

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN.

In re: C.M. No. __________/2001 In W.P. No. 640/ 2001 Hameed etc.

Vs.

Abdul Qadeer etc.

STAY APPLICATION. AFFIDAVIT of: Hameed S/o Bahar, caste Rajpoot, R/o Mouza Johar, Tehsil Matly, District Haiderabad.

I, the above named deponent do hereby solemnly affirm and declare that the contents of the above-mentioned application are true and correct to the best of my knowledge and belief and nothing has been kept concealed thereto. DEPONENT

Verification: Verified on oath at Multan, this _____ day of July 2001 that the contents of this affidavit are true & correct to the best of my knowledge and belief. DEPONENT