Law:

Section:

(a) Constitution of Pakistan (1973)-----Art. 185(3)--West Pakistan Land Dispositions (Saving of Shamilat) Ordinance, 1959, S. 3--Shamilat Deh--Leave to appeal granted to consider whether A had sold to H lands with or without Shamilat; if same was without Shamilat rights then neither G nor his heirs can claim any share in partition of Shamilat. (b) West Pakistan Land Disposition (Saving of Shamilat) Ordinance (I of 1959)-- ---S. 3--G selling Malkiyat land without specifying that Shamilat was included--Transfer was of Malkiyat land only. JUDGMENT ALI HUSSAIN QAZILBASH, J.--This is an appeal by leave against the order and judgment of a learned Single Judge of the Peshawar High Court, dated 13-1-1975. 2. The facts are that the appellants and the pro forma defendants 1,2 and 9 to 11 (now respondents) brought a suit alleging that five nafar Shamilat attached to land bearing Khasra Nos. 682, 728, 943, 1226, 1337, 1338 and 1340, situate in village Masho Gaggar, Tehsil and District Peshawar, belonged to Ghulam Muhammad son of Hayatullah who sold the same without Shamilat on the basis of a decision of the Revenue Court to Habibullah for a sum of Rs.400.00 and a mutation was attested on 1e-8-1919 This mutation was pre-empted by Wali Muhammad, minor son of Ghulam Muhammad, and the suit was decreed. Pursuant thereof mutation No.1494 was attested on 16-8-1919. Thereafter Wali Muhammad made a gift of the suit land to Abdul Hakeem vide Mutation No. 1495 attested on 16-8-1919. A suit was brought by Habibullah challenging the pre-emption decree obtained by Wali Muhammad on the ground of collusion. The suit was decreed on 19-5-1920 and the land was mutated without any share of Shamilat in the name of Habibullah vide mutation No.1694 attested on 1i-6-1923. Though besides Mutation No. 1495, Mutation Nos. 1305, 1494 and 1694 clearly mentioned that the transfers were effective without Shamilat, yet Abdul Hakeem procured a Fard Badr bearing No. 79 attested on 1-11-1929 and thus brought himself in the revenue record as owner of Shamilat of the Khasra numbers conveyed by Ghulam Muhammad. Partition of Shamilat took place in 1962 and therein respondents 3 to 8 (heirs of Abdul Hakeem) were…

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