JUDGMENT SHEET

IN THE LAHORE HIGH COURT, AT LAHORE

(JUDICIAL DEPARTMENT)

Writ Petition No.12403-2010

(Izhar Ullah Babir etc Vs. Province of the Punjab, etc)

JUDGMENT

DATE OF HEARING: 08.11.2012

PETITIONERS (Izhar
Ullah Babir etc) Mr.Shahid Mahmood Khilji, Advocate.
REPRESENTED BY:

RESPONDENTS Mr.Imtiaz Ahmed Kaifi, Addl.A.G. with

(Province of the Punjab Abdul Jalil Patwari for respondent
etc) REPRESENTED No.1.
BY: Ch.Muhammad Anwar Bhindar,
Advocate for respondents No.2 to 8.

ABDUS SATTAR ASGHAR J:- Petitioners have

invoked the constitutional jurisdiction of this Court under Article
199 to impugn the order dated 21.4.2010 passed by learned
Additional District Judge Sargodha whereby civil revision lodged
by respondents No.2 to 8 was accepted and plaint of the suit for
declaration etc. lodged by the petitioners was rejected under
Order 7 Rule 11 CPC.

2. Brief facts leading to this petition are that parties

grandfather namely Majeed Ullah Khan died in the year 1938
leaving behind a widow namely Gul Jan and two sons namely
Shah Jahan Khan and Lal Badshah. Petitioners are legal heirs
of Lal Badshah whereas respondents are legal heirs of Shah
Jahan Khan. Majeed Ullah Khan was allottee of the agricultural
Writ Petition No.12403-2010 2

land under the Horse-Breading Scheme. Consequent upon the

demise of Majeed Ullah Khan the said land was transferred in
the name of Shah Jahan Khan father of respondents No.2 to 7
and husband of respondent No.8 vide mutation No.40 dated
23.5.1938. After the demise of Shah Jahan Khan, the land
further devolved upon respondents No.2 to 8 vide mutation
No.204 dated 26.1.1979. Respondents No.6 and 7 also mutated
a part of the said land in favour of respondents No.2 to 5 vide
mutation No.483 dated 11.8.2006. Respondent No.8 also
transferred a part of the said land in favour of respondents No.9
and 10 vide registered deed No.35 dated 27.1.2007 and
mutation No.492 dated 05.3.2007. The petitioners being legal
heirs of Lal Badshah son of Majeed Ullah Khan lodged a suit for
declaration etc in the year 2009 challenging the aforementioned
transactions on the ground that their predecessor in interest
namely Lal Badshah was unlawfully deprived of his legal share
in inheritance as son of Majeed Ullah Khan violative to the
Muslim Laws of Inheritance, therefore, petitioners being co-
sharers be declared lawful owner to the extent of their
respective shares in the suit land and the above cited
transactions be declared illegal, void abinitio and of no legal
effect as against their rights.

3. Respondents No.2 to 8 lodged an application under

Section 7 Rule 11 CPC on 24.4.2009 for rejection of the plaint in
the said suit. The said application was resisted by the
petitioners. The learned trial Court dismissed the same vide
order dated 05.11.2009. Being aggrieved respondents No.2 to 8
assailed the said order through revision petition before the
learned Additional District Judge Sargodha which was allowed
and the plaint was rejected vide impugned order dated
21.4.2010.
Writ Petition No.12403-2010 3

4. It is argued by learned counsel for the petitioners that

the learned Additional District Judge Sargodha has passed the
impugned order on wrong premises of law and facts without
application of judicious mind as well as without taking into
consideration the facts and material available in the contents of
the plaint necessitating a full dressed trial; that if benefit of the
Section 19-A of the Colonization of Government Lands (Punjab)
Act (V of 1912) is not available to the petitioners then they
become eligible for share in the land under Section 20 of the
Act ibid and that Rule of Primogeniture was not applicable to the
tenancy granted to their predecessor Majeed Ullah Khan under
the Horse-Breading Scheme; that learned Additional District
Judge while passing the impugned order misinterpreted the
provision of Section 20 of the Colonization of Government
Lands (Punjab) Act (V of 1912) while accepting the revision
petition lodged by respondents No.2 to 8; that the learned
Additional District Judge through the impugned order although
held that the succession of Majeed UllahKhan was governed by
Section 20 of the Act but failed to appreciate that the said
Section maintains that if original tenant dies the succession of
tenancy will devolve in the following order:-

a) the male lineal descendants of the tenant in the male line of

descent (the term lineal descendants shall include an adopted
son whose adaptation has been ratified by a registered deed).

b) the widow of the tenant until she dies, or remarries, or loses

her rights under the provisions of this Act;

c) the unmarried daughters of that tenant until they die or marry,

lose their rights under the provisions of this Act;

d) the successor or successors nominated by the tenant by

registered deed from among the following persons, that is to
say, his mother, [his pre-deceased sons widow, his pre-
deceased grand-sons widow] his married daughter, his
daughters son, his sister, his sisters son, and the male
agnate members of his family;
Writ Petition No.12403-2010 4

e) the successor or successors nominated by the Collector from

among the persons enumerated in clause (b) of this section.

that in the light of the expression male lineal descendant used

in clause (A) of the above quoted provision of Section 20 of the
Act petitioners father Lal Badshah being one of the male lineal
descendants was also entitled to the tenancy along with his
elder brother Shah Jahan Khan but unlawfully deprived. He has
also taken reliance upon Mst.Ghulam Bano alias Gulab Bano
and others Vs. Mst.Noor Jehan and others (2005 SCMR
658);

5. It is resisted by learned counsel for the respondents

with the contentions that petitioners have no locus standi or
cause of action, therefore, learned Additional District Judge has
rightly accepted the revision petition to reject the petitioners
plaint in the suit for declaration etc.; that the impugned order
does not suffer from any factual or legal infirmity; that the
petitioners have no case to invoke the constitutional jurisdiction
of this Court; that admittedly land was allotted to the
predecessor in interest of the parties under the Horse-Breading
Scheme, therefore, in terms of Section 4 of the Colonization of
Government Land (Punjab) Act 1912 read with Schedule-I the
provisions of Section 20 of the Act are not applicable to this
case; that as per terms and conditions of the Horse-Breading
Scheme 1904-1905 under which the land was allotted to the
parties predecessor in interest Rule of Primogeniture was
applicable in case of death of the original allottee and for this
reason the impugned mutation No.40 dated 23.5.1938 although
bearing the name of Lal Badshah as son of Majeed Ullah Khan
was not allotted any land being younger brother of Shah Jahan
Khan; that the learned Additional District Judge although
Writ Petition No.12403-2010 5

misquoted the provisions of Sections 19-A and 20 of the Act

however rightly rejected the plaint under Order 7 Rule 11 CPC.

6. Arguments heard. Record perused.

7. Admittedly petitioner was allottee of the land under the

Horse-Breading Scheme it is so revealed through paragraph
No.1 of the plaint. He died in the year 1938. The impugned
mutation No.40 was attested on 23.5.1938. Copy of the said
mutation is available on the record which contains pedigree
table showing Shah Jahan and Lal Badshah as his sons. It also
transpires that the land allotted in the name of Majeed Ullah
Khan under the Horse-Breading Scheme was transferred in the
name of his elder son namely Shah Jahan Khan.

8. At this stage it would be expedient to reproduce

hereunder Section 4 of the Colonization of Government Land
(Punjab) Act 1912 along with relevant extract of Schedule-I
attached thereto for ready reference:-
Application of the Act. This Act shall, unless the [Provincial
Government] otherwise directs, apply to land to which the
provisions of the Government Tenants (Punjab) Act, 1893, have
been applied and to any other land to which the [Provincial
Government] may by notification in the official Gazette apply it and
which at the time of the notification was the [Property of the
Provincial Government].
Provided that [unless the [Provincial Government] by
general or special order otherwise directs] nothing in sections 20,
21, 22 and or in the proviso to section 14 of this Act shall apply to
tenancies specified in Schedule I of this Act, or to any class of
tenancies created hereafter which the [Provincial Government] may
declare to be Scheduled tenancies.
SCHEDULE-I
List of excepted tenancies referred to in section 4.
A In the Lower Chenab Colony the tenancies of tenants holding
on the conditions applicable to
(1) ----
(2) ----
(3) ----
(4) ----
(5) ----
Writ Petition No.12403-2010 6

(6) ----
B -- In the Lower Jhelum Colony the tenancy of tenants holding
on the conditions applicable to
(1) Horse-breedings tenants.

Admittedly the land pertaining to tenancy in question

falls within the Lower Jhelum Colony Area. Bare reading of the
afore quoted proviso of Section 4 of the Act read with relevant
extract of the Schedule-I makes it crystal clear that Section 20
of the Act is not applicable to the Tenancies granted under the
Horse-Breading Scheme in the Lower Jhelum Colony Area.

9. Section 19-A of the Act was introduced in the year 1951.

since the parties predecessor in interest Majeed Ullah Khan
died before promulgation of the Colonization of Government
Lands (Punjab)(Amendment) Act 1951 therefore provisions of
Section 19-A of the Colonization of Government Lands (Punjab)
Act 1912 are also not applicable to this case.

10. Besides Promulgations of West Pakistan Muslim

Personal Law (Shariat) Application Act 1962 being general law
on the subject would also have no derogatory effect on the
terms and conditions of the tenancy granted to the parties
predecessor in interest under the Horse-Breading Scheme
pertaining to the lands maintained under the Punjab Tenancy
Act (Punjab) Act 1893 a special law on the subject.

11. Learned counsel for the respondents have furnished a

copy of terms and conditions regarding tenancies under the
Horse-Breading Scheme 1904-1906 Tehsil Sargodha along with
Schedule issued by Revenue Department Government of India.
Relevant extract whereof reads below for ready reference:-
Writ Petition No.12403-2010 7
Writ Petition No.12403-2010 8

12. Afore quoted terms and conditions of the Horse-

Breading Tenancy Scheme makes it crystal clear that in the
year 1938 when Majeed Ullah Khan died the Rule of
Primogeniture was applicable. Learned counsel for the
petitioner has also annexed a copy of letter issued by Deputy
Secretary Government of the Punjab Development Department.
Writ Petition No.12403-2010 9

An extract whereof reads below:-

From
W.F.G.Lo Beilly, Esquire,I.C.S.
Deputy Secretary to Government, Punjab.
Development Department.
To
The Commissioner,
Rawalpindi Division.

Subject:- Abrogationof horse breeding conditions in the

Lower Jhelum Colony, Shahpur District.
Sir,

I am directed to forwarded herewith a copy of

Punjab Government notifications Nos.4396-C, 4397-C,
4398-C and 4399-C dated the 14th October 1940
abrogating the special conditions of horse breeding and
succession by primogeniture, applicable to horse breeding
peasants an Nazrana-paying horse breeding tenants, in the
Lower Jhelum (Colony Shahpur district). I am also to
enclose for wide publicity a copy of the announcement
made by the Honble Minister of Revenue, at Sargodha, on
14th October, 1940, on this subject. It is to be noted that the
primogeniture conditions will be abrogated from the date of
Honble Minister of Revenues announcement while horse
breeding conditions will continue until Ist January 1941.

2. I am further to convey the orders of Government of

the Punjab that on the abrogation of the conditions referred
to above malikana shall be charged from the grantees
concerned at the rate of -/6/- (six anas in the rupee of land
revenue with effect from kharif 1941m instead of 12/- anas
(annas two only) per allotted acre per harvest for formal
charged.

3. The Governor of the Punjab is also pleased to

permit these grantees to acquire proprietary rights in
following manner:-
a) -----------
b) -----------
c) -----------
4. --------------------
5. --------------------
6. --------------------
Sd/-
I have the honour to bow
Sir,
Your most obedient servant,
Sd/-
H.F.C.Le Bailly,
Deputy Secretary, Development.
Writ Petition No.12403-2010 10

No.4402-C.
A copy, with a copy of this enclosures, is forwarded for information
and guidance, to the Deputy Commissioner, Shahpur.

By order,
Sd/-
Deputy Secretary, Development
No.4403-C.
A copy, with a copy of this enclosures, is forwarded for information
and guidance, to the Chief Engineer, Irrigation Works, Punjab.
By order,
Sd/-
Deputy Secretary, Development
.
13. Contents of the above letter of the Government of the
Punjab makes it crystal clear that special condition of
succession under the rule of Primogeniture was abrogated
w.e.f. 14.10.1940. The impugned mutation No.40 dated
23.5.1938 whereby succession of tenancy devolved upon Shah
Jahan Khan predecessor in interest of respondents No.2 to 8
therefore was passed in accordance with law under the rule of
Primogeniture. Petitioners lack any locus standi and cause of
action to question the validity of the said mutation and the
subsequent transactions on the basis thereof. The plaint
challenging the vires of said mutations was therefore rightly
rejected by the learned Additional District Judge Sargodha.
Needless to say that mere misquoting of any provision of law
does not render the impugned order illegal. I do not find any
legal infirmity in the impugned order passed by learned
Additional District Judge Sargodha.

14. I have carefully gone through the above cited case of

Mst.Ghullam Bano. Facts of the cited case are altogether
distinct and distinguishable from the facts of this case. The
dictum laid down in the cited case therefore cannot be siphoned
on to the facts of this case and thus is of no avail to the
petitioners.
 Writ Petition No.12403-2010 11

15. Besides it is pertinent to mention that the allotment of

tenancy under the horse breeding scheme by the Competent
Authority in accordance with the law and rules does not call for
interference by this Court in exercise of constitutional
jurisdiction. Reliance is made upon Noor Muhammad Vs.
Member, Board of Revenue and others (2006 SCMR 769)
and Sub. Muhammad Asghar Vs. Mst.Safia Begum and
another (PLD 1976 Supreme Court 435).

16. For the above discussion and reasons, this constitutional

petition having no merit is dismissed.

(ABDUS SATTAR ASGHAR)

JUDGE

Approved for reporting.

JUDGE

Ejaz