1980 PLP 1585 (CLC)

Syed Afzal Haider for respondent -No.

3. Dates of hearing : 18th December, 1978 and 7th July, 1979. The dispute between the parties, to land measuring 96 kanals 3 marlas situate in village Ferozepur Tehsil Pakpattan District Sahiwal which was sold by Shah Muhammad deceased, to respondent No. 2 for a consideration of Rs. 1.300. This sale was evidenced by mutation No. 373 sanctioned on 8th June, 1955. Respondent No. 2 filed a suit to Pre-empt the sale which was decreed and a mutation also attested in his favour on 23rd October, 1956.

2. This second appeal arises out of a suit tiled by the appellant on 11th July, 1960 for declaration that the land was ancestral qua Shah Muhammad deceased ; it was alienated by him without legal necessity; sale was therefore, ineffective on the appellant's reversionary rights, under custom. Respondent No. 3 alone contested the suit. The learned Civil Judge, came to the conclusion that the appellant who claimed to be Chisti by caste neither specifically alleged nor proved the "Rawaj-e-dam of his tribe. He also held that the sale was for legal necessity and the payment of consideration to the vendor, was fully proved Accordingly he dismissed the suit on 12th February, 1964.

3. In the first appeal the appellant contended that Montgomery (now Sahiwal) Chisti-Qureshis -were an agricultural tribe and therefore, they were presumed to be governed by custom in the matter of inheri tance. The learned Additional District Judge, who was seized of the appeal however, held that mere presumption did not conclusively prove the existence of custom ; which could be substantiated through instances that appellant failed to establish such instances either by oral evidence or by judicial pronouncements. He maintained that the onus of proof lay heavily on the appellant who did not discharge it. After discussing the case-law cited before him, the learned Additional District Judge, took the view that a presumption in favour of existence of custom could not be drawn in respect of the Chisti-Qureshis who claimed to have migrated from Arabia, and followed Islamic law. The findings of the learned trial Court were thus upheld and the appeal was dismissed by him on 16tb September, 1964. The unsuccessful appellant has now come up in second appeal.

4. The appellant's learned counsel argued, that the burden of the learned Additional District Judge's judgment was that the appellant could not succeed as he failed to prove the instance of custom. Relying ors Mst. Vaishno Ditti v. Mst. Ramchsri and others (A I R 1928 P C 294) he submitted that failure to give evidence of instances is not fatal to the appellant's case. For establishment of custom, lie sought support from the deposition of Muhammad Ali D. W. 2 and cited Atxa Muhammad v. Fateh Muhammad and others (A I R 1930 Lah. 909) and pages 20, 22 and 23 of the Customary Law of Pakpattan and Dipalpur Tehsils, compiled by Nawab Malik Muhammad Hayat Khan Noon (125 Edn.) to fortify his submissions.

5. In order to assess the correctness of the findings of the learned two Courts below, in the light. of the arguments advanced by the appel lant's learned counsel, I have thoroughly gone through the pleadings of the parties and the evidence produced by them. The appellant has not specifically pleaded the existence of the custom governing his family. Al person relying on custom must first allege it in his pleadings and then' prove what that custom is. Such custom may be proved by oral evidences of the members of the tribe, who are cognizant of. its existence and; affected thereby. While I am inclined to agree with the learned counsel for the appellant, that the proof of specific instances of custom is not B sine qua non fur establishing the existence of custom, but it is difficult to accept his contention, that the evidence on the record coupled with the case law cited by him, warranted a decision that the deceased Shah Muhammad was governed by custom and not by personal law. In Mst. Vaishno's case referred to by the appellant's learned counsel it was observed " Their Lordships are of opinion that, even though there be no evidence of instances, still, if the custom spoken to by the party's witnesses is in accordance with the custom applicable to his community according to the Manual of the Customary Law of the District, there is sufficient prima facie evidence of the existence of the custom, subject, of course, to rebuttal, and that it ought not to be held insufficient merely for want of instances."

6. It is to be noticed that the proof tendered by the appellant extremely falls short of the test laid down by the Judicial Committee in Mst. Vaishno's case. The appellant examined three witnesses and he himself appeared in the witness box. His witnesses have not said even a word about the custom. The appellant deposed that he is of Chisti tribe who followed agricultural custom, under which the ancestral land could not be sold. He however, despite being asked could not give any instance of custom. The learned counsel heavily relied on the statement of Muhammad Ali D. W. 2 made by him during cross-examination and I deem it fit to quote it hereunder, so far it is decipherable I do not think that this part of the statement of D. W. 2 is of any help to the appellant. In the absence of evidence of instances there should have been overhelming pre-ponderance of' oral testimony of those who ate governed by custom but there is no such evidence on the record. Refer ence in this respect may be made to Ram Laf v. Gopi (24 P R 1914) and Ahmad Khan v. rest. Channi Bibi (6 Lah. 502.). The report in Atta Muhammad v. Fateh Muhammad deals with the Chistis of village Asafwala, Ferozepur District and it has been held that according to Rawaj-i-Aam and the evidence they are not governed by their personal law. In order to attract the applicability of this precedent the appellant should have established by evidence some nexus between his tribe and the Chistis of. Ferozepur District. But unfortunately there is no such evidence on the file. The reference to pages 20, 22 and 23 of the Customary Law of Pakpattan and Dipalpur Tehsils, by the learned counsel also does not advance the appellant's - cause, as only the aliena tion by a widow has been discussed therein. In this respect, the learned counsel for respondent No. 3 rightly contended that there is an initial presumption that the Qureshis are governed by Islamic Law. He also referred to page 28 of the "Customary Law" by Rattigan (1938 Edn-) which provides :- "Speaking generally, it may be safely predicated of Qureshis that they are not members of an agricultural tribe. They belong to a tribe which cache original from Arabia, or at least so tradition has it, and they claim to be the tribe to which the Prophet belonged. Prima facie, therefore, the members of this tribe would be zealous of adhering to the principles of their personal lave, the Muhammadan Law, and in their case, even when we find them holding land, `the same presumption cannot be predicated regarding them as a class "as may properly made as a result of experience in regard to agricultural tribe either personally or in particular localities.'

8. For the foregoing reasons, the dismissal of first appeal is upheld and this second appeal is also dismissed as without being any merit, leaving the parties to bear their own costs. K. M. A. Appeal dismissed