8/7/2021 P D 1994 Supreme Court 298

P D 1994 Supreme Court 298

 
Present: Abdul Qadeer Chaudhry and Saeeduzaman Siddiqui, JJ
 
KHUDA BAKHSH through his Legal Heirs‑‑‑Appellant
 
versus
 
Mst. NIAZ BIBI and another ‑Respondents
 
Civil Appeal No.160 of 1993, decided on 11th
December 1993
 
(On appeal from the judgment
and order of the Lahore High Court dated 31‑10‑1992 passed in
R:S.A. No.1089 of 1969).
 
(a) West Pakistan Muslim Personal Law (Shariat)
Application Act (V of 1962)___
 
‑‑‑‑S. 2‑A [added by
West Pakistan Muslim Personal Law (Shariat) Application Act (Amendment)
Ordinance (XIII of 1983)]‑‑‑Delivery of
possession through
execution proceedings, during pendency of appeal in High Court, when High Court
had not ordered stay of
proceedings‑‑‑Possession thus
obtained whether a past and closed transaction‑‑‑Appellants
had obtained decree of declaration under custom‑‑‑Such
decree
was confirmed by Appellate Court but High Court in second appeal, however,
found that suit of appellants being based on custom would stand
abated by
addition of S.2‑A in West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962‑‑‑Validity‑‑‑Section
2‑A(c) [as added in Act V of
1962] postulates that all suits and other
proceedings. would abate provided that it would not be applicable to
transactions past and closed where
possession of such land had already been
delivered under decree which had been obtained under custom‑‑‑Appellants
having obtained possession
during. pendency of appeal in High Co wpf, they,
could not take advantage of such provision for appeal being in con tnuation of
original suit, unless
Appellate Court would finally decide the matter, delivery
of possession would not nullify effect of S.2‑A(c) of the Act V of 1962‑‑‑Non‑grant
of stay
order by High Court was immaterial for High Court had entertained appeal
and same was pending for final adjudication.
Abdul Ghafoor etc. v. M. Shaff etc. PLD 1985 SC 407
ref
 
(b) West Pakistan. Muslim Personal Law (Shariat) Application Act '(V of 1962). _
 
‑‑‑‑S. 2‑A‑‑‑Punjab
Muslim Personal Law (Shariat) Application Act (IX. of 1948, S. 2‑‑‑Male
heir (donee) having acquired agricultural land under
custom from person who at
the time of such acquisition was a Muslim (before the commencement of Punjab
Muslim Law Shariat Application Act,
1948) would be deemed to become absolute
owner of such land ‑‑‑Donee, thus, being absolute owner of
load had full authority to alienate the same.
 
Hafiz SA. Rahman, Advocate
Supreme Court and Ejaz M. Khan, Advocate‑on‑Record for Appellants.
M. Munir Piracha, Advocate
Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for
Respondents.
 
Date of hearing: 11th December, 1993.

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JUDGMENT
 
ABDUL QADEER CHAUDHRY, J: ‑‑This
appeal by leave of the Court is directed against the judgment of the High Court
dated 31‑10‑1992
to consider the effect of section 2(a)(c) of West
Pakistan Muslim Personal Law (Shariat) Act (Amendment) ordinance, 1983
(hereinafter referred to as
an Act).
 
2. The facts in brief are
that Khuda Bakhsh, predecessor‑in‑interest of the appellants filed
a suit for declaration that the gift of suit land measuring
84 Kanals 6 Minas
made by Khanjar Khan, deceased in favour of Falak Slier, respondent No.2 by
means of Mutation No.392 dated 1‑2‑1966 was
illegal and against the
custom and thereby void and ineffective on the right of plaintiffs. The suit on
contest was decreed by the learned Civil Judge,
Jauharabad on 21‑3‑1969.
Mst. Niaz Bibi and Falak Slier, respondents filed an appeal against the
judgment and decree of the trial Court, but the
appeal was dismissed on 20‑6‑1969.
The respondents thereafter filed a second appeal before the High Court on 30‑9‑1969.
The learned High Court by
impugned judgment dated 31‑10‑1992 held
that the suit of the appellants was based on custom and it stood abated by
virtue of section 2 of the Act.
 
3. The learned counsel for
the appellants submitted that the High Court had not stayed the execution
proceedings. The petitioner obtained the
possession of the suit land on 6‑12‑1969,
therefore, it was a past and closed transaction. No effect could be given to
section 2 of the Ordinance
because this Ordinance was promulgated on 1‑8‑1983
and it specifically provided that it shall not be applicable to transactions
past and closed. In
order to appreciate the contention of the learned counsel
we reproduce hereinbelow section 2(a) of the Ordinance:‑‑‑
 
"2‑A. Succession prior to Act .IX of
1948 Notwithstanding anything to the contrary contained in section 2 or any
other law for the time being in
force, or any custom or usage or decree,
judgment or order of any Court, where before the commencement of the Punjab
Muslim Personal Law
(Shariat) Application Act, 1948, a male heir had acquired
any agricultural land under custom from the person who at the time of such
acquisition was
a Muslim:‑‑‑
 
la)?? he shall be deemed to have
become, upon such acquisition, an absolute owner of such land, as. if such land
had devolved on him under the
Muslim Personal Law (Shariat) Act;
 
(b)?? any decree, judgment or
order of any Court affirming the right of any reversioner under custom or
usage, to call in question such an alienation
or directing delivery or
possession of agricultural land on such basis shall be void, in executable and
of no legal effect to the extent it is contrary
to the Muslim Personal Law
(Shariat) Act;
 
(c)?? all suits or other proceedings
of such a nature pending in. any Court and all execution proceedings seeking
possession of land under such decree
shall abate forthwith:
 
Provided that nothing herein contained shall be
applicable to transactions past and closed where possession of such land has
already been delivered
under such decrees."
 

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4. According to sub‑clause
(c) all suits and others proceedings shall abate provided that it shall not be
applicable to transactions past and closed
where possession of such land has
already been delivered under such decree. The learned counsel stated that the
decree was granted in favour of the
appellants by the trial Court and that
decree was confirmed by appellate Court. There was no stay from the High Court.
The appellants obtained
possession of the land before the promulgation of the
Ordinance, therefore, no effect could be given to clause (c) of section 2‑A
of this Ordinance.
This contention has no force. The decree was under challenge
before the High Court. The appeal was in continuation of, the original suit and
unless
the appellate Court finally decides the matter it cannot be said that
the delivery of possession would nullify the provisions of the Ordinance. The
Ordinance is to be read as a whole and spirit of the Ordinance cannot be
ignored, while interpreting sub‑clause (c) with its proviso. It is
immaterial if
no stay was granted by the High Court. The High Court had
entertained the appeal and the same was pending for final adjudication.
 
5. The learned counsel has
referred to Abdul Ghafoor etc. v. M. Shaft etc. (PLD 1985 SC 407) in support of
his contention that when the decree has
been executed by delivery of possession
then it amounts to past and closed transactions. He has referred to curtain
observations of this Court made, as
at pages Nos.423 and 424 of the Report
point ( h ) is relevant and it reads as under:‑‑‑
 
"(n), In yet another eventuality neither of the
two foregoing postulations might be strictly relevant. It can be illustrated by
visualising a decree, setting
aside an alienation covered by sub‑clause
(b) of section 2‑A, having already been passed and the same being under
challenge in appeal. If the
appellate Court had not issued any order staying
the execution and accordingly it was .executed during the pendency of' appeal
and the possession
also delivered; but notwithstanding the execution the
pendency of appeal will keep the dispute alive and it (execution) will remain
subject to the result
in appeal, a further appeal or revision, if competent.
The execution of the decree per se notwithstanding the provision contained in
clause (c) might
not cause the abatement of the appeal. In such a case the
execution of decree and delivery of possession would be subject to and
controlled by the
provisions of the C.P.C. relating to the restitution on
acceptance of appeal."
 
It has been specifically stated that if the decree
had been executed during the pendency of appeal and the possession also
delivered but the pendency
of the appeal will keep the dispute lying alive. In
such a case the execution of the decree and delivery of possession would be
controlled to the
provision o: C.P.C. In the instant case the appeal was
pending, therefore, the delivery of possession would be immaterial.
 
6. There is another aspect
of the case. According to Section 2(a) where before the commencement of Punjab
Muslim Law (Shariat Application)
Act, 1948, a male heir had acquired any
agricultural land under custom from the person who at the time of such
acquisition was a Muslim, he shall be
deemed to have become an absolute owner
of such land. Khanjar Khan, the dor_ee, therefore, was absolute owner of the
land, he had full authority to
alienate the same.
 
7. This appeal has no force, the same is dismissed
with no order as to costs.
 
AA./K‑237/S
Appeal dismissed.
 

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