1994 PLP 402 (SCMR)

Nemo for Respondents Nos.3 to

11. Dates of hearing: 8th and 9th December, 1991. SHAFIUR RAHMAN,‑J: ‑‑Leave to appeal was granted to examine whether the Courts had taken a correct view with regard to the nature of allotment made to a widow against verified claim received from India.

2. Mst. Faji widow of Khair Muhammad on migration to Pakistan submitted a claim form on which occupancy tenancy in her name as widow of Khair Muhammad was received, totalling 160 Kanals, 8 Marlas of which 56 Kanals, 18 Marlas was mortgaged. She got allotment in lieu thereof. She got the mortgage redeemed. On her death a mutation of inheritance was attested wherein 3/4th share went to the appellants and 1/4th to the plaintiffs/respondents Nos.l and

2. Mst. Faji had left behind two of her own brothers‑‑‑who were plaintiffs, and three sisters of Khair Muhammad her husband, whose heirs/successors‑in‑interest are the appellants and respondents Nos.3 to 11.

3. The Revenue Officer took the allotment in the hands of Mst. Faji as limited estate of her husband Khair Muhammad. The brothers of Mst. Faji/respondents Nos.l and 2 filed a Civil suit claiming that Mst. Faji was a full owner of the property and not a limited estate holder. The suit was contested. Mainly oral evidence was produced. The documentary evidence was mostly of the period after partition. The trial Court decreed the claim of the plaintiffs for the reasons appearing as hereunder:‑‑ "It is also noteworthy that admittedly a limited owner could not mortgage or sell the land but in the present case the land had been mortgaged by Mst. Faji and thereafter the same was redeemed by her on payment of Rs.2,

880. In such circumstances, it is quite evident that Mst. Faji was not the limited owner and was the full owner, therefore, she had mortgaged the property and thereafter she redeemed it in 1975 as shown by copy of Mutation No.557 Exh.P‑1 on the record. Another argument in this connection is that the defendants have not brought on the record the proof of mutation of inheritance for the land left by Khair Muhammad which could show that Mst. Faji had got this land as limited owner. For my above discussion I find that Mst. Faji was the full owner of the property in dispute, and was not a limited owner. Both these issues stand answered in favour of the plaintiff against the defendants."

4. The appellate Court affirmed the findings as hereunder:‑ "The plaintiffs have discharged the burden of issue No.4 in a legal way by examining P.W.1 to P.W.3 and producing documents Exh. P.1 to Exh. P.II. The fact that none of the P.Ws. has deposed that as to how Mst. Faji became the owner of the suit land, does not mean that Mst. Faji was not the exclusive owner of the suit land. They have deposed like such as the suit land was acquired by Mst. Faji much before their birth even. So, how could they depose about its origin. It is also evident from record that out of the defendants, six have not filed appeal and this also gives a fatal blow to the stand taken by the present defendants/appellants."

5. The High Court by the impugned judgment/order refused to go into the correctness or otherwise of the concurrent finding of fact recorded by the two Courts. Hence this appeal.

6. After hearing the learned counsel for the parties at great length and examining the record we find that in recording the finding of fact on such a controverted question, the Courts have committed three legal errors relating to reception and appraisement of evidence. In the first place, the two Courts have held the appellants responsible for not producing the documents, for the period prior to partition of the country, for showing from whom and in what manner and to what extent the property was inherited by Mst. Faji in India. Such a duty was cast on the appellants little realising that it was not possible in the existing conditions for the parties to obtain such documents or record from India. Secondly, they have over‑emphasized the weight and evidentiary value of the documents prepared in Pakistan after Partition reflecting the allotment of Mst. Faji and her dominion and control over the same. Thirdly, the Courts have omitted to give effect to the oral evidence, which, in the absence of the first two types of material was the best evidence that could be produced, provided it was inspiring and creditworthy.

7. So far as the antecedents of the parties and the nature of their tenancy is concerned, conspicuous features of it are that the land tenure held by the lady was of occupancy tenancy. It was hereditary. The parties are Arain by caste and agriculturist by tribe. The tenancies related to the agricultural land. These three factors would ordinarily indicate the applicability of custom rather than any other law to succession etc.

8. The oral evidence led by the plaintiffs is marked by inconsistency and evasiveness coupled with ignorance of material facts. The plaintiffs' witnesses do not know from whom she inherited the property, when it was inherited and what was its nature. Keeping in view the fact that her father Imam Din had left behind two sons and two daughters and the plaintiffs being sons of Imam Din, having not inherited anything from their own father, the property could not have come to her from her father. As against this, the appellants had produced a very consistent and creditworthy witness Shah Din aged 80 years resident of the same village in India to which the parties belonged. He has stated about the pedigree of Khair Muhammad and about the custom under which his widow inherited a limited estate. This witness was not put any question with regard to his knowledge or creditworthiness on the issues involved.

9. The Fard Haqiat prepared on the basis of record received from India also showed that she was holding the property as widow of Khair Muhammad, a' part of which was mortgaged. The fact that she mortgaged the property or that after partition got it redeemed, does not militate against her being a limited estate holder.

10. In the circumstances, we accept the appeal, set aside the judgments/orders and decrees of all the three Courts below and dismiss the suit of the plaintiffs approving the treatment of the allotment made to Mst. Faji as a limited estate and its devolution as such. No order is made as to costs. A.A./K‑232/S. Appeal accepted.