1995 PLP 1253 (CLC)

2. The facts as narrated in the plaint are that the property (detailed in plaint) was owned by Mst. Karam Nishan as per Jamabandis for the years 1959‑60 and 1963‑

64. Ghulam Farid, father of Karam Nishan had died without any male issue and thereafter the land in dispute was mutated in the name of his widow, namely, Subhano as a limited owner. Subhano also died in 1932 and the estate left by Ghulam Farid was mutated in favour of Karam Nishan, Ghulam Fatima and Amir Begum, daughters and Allah Yar son of Khairun Nisa, the deceased daughter of Mst. Subhano from Ghulam Farid. It was further averred that Mst. Karam Nishan became widow in 1945; she had no issue while defendants 1 to 3 are her real nephews, that is, sons from the other sister and defendant No. 4 is son of sister's daughter. The case of the plaintiffs was that Karam Nishan was a limited owner under custom and the parties belonged to family of Rajput‑Khokhars of tehsil Depalpur which family followed the Zamindara custom in the matter of inheritance and under the said custom, she could not make any alienation by way of gift. It was submitted that the gift made by Mst. Karam Nishan in favour of defendants, as such, was illegal and ineffective as against the rights of the plaintiffs. Mst. Karam Nishan died on 17‑11‑1967 without any issue. Her sister had also died in her lifetime, they had no brother and as such the plaintiffs being residences are entitled to claim 3/4th of the land in question.

3. The suit was resisted by the defendants by raising various pleas which led to framing of the following issues:‑‑ (1) Whether the suit is barred by res judicata? OPD (2) Whether the suit is within time? OPP (3) Whether the plaintiffs have no locus standi to sue? OPD (4) Whether the plaint has been incorrectly valued for the purpose of court‑fee and jurisdiction. If so, what is the correct valuation? OPD. (5) Whether the suit is maintainable in its present form? OPD. (6) Relief. No evidence was produced by the parties and the learned trial Judge decided issues 1, 3 and 4 against the defendants. Since no evidence was produced, Issue No. 2 was decided against the plaintiff and as a result thereof, the suit was dismissed being barred by time. On first appeal, these findings were maintained and the appeal was dismissed.

4. Learned counsel in support of the second appeal submitted that the appellants‑plaintiffs are entitled to receive 1/3rd of the land as residuaries under Sharia by virtue of section 2‑A added by Ordinance XIII of 1983 to the West Pakistan Muslim Personal Law (Shariat) Amendment Act, 1962. In this respect reliance was placed on Abdul Ghafoor and others v. Muhammad Shaft and others (PLD 1985 SC 407) and the other judgments in which the aforesaid judgment was followed.

5. Mr. Amir Alam Khan, learned counsel for respondents, on the other hand, submitted that the land in dispute having not been established as ancestral property qua Karam Nishan neither section 2‑A added by Ordinance XIII of 1983 nor the precedents are applicable to the instant case. He argued that no evidence was produced by the appellants/plaintiff to show that the land in dispute was ancestral qua Mst. Karam Nishan or that Karam Nishan had received the land as a limited owner. It was next argued that the judgment dated 2‑5‑1938 passed in the case of Sikandar v. Mst. Karam Nisha and others (AIR 1938 Lahore 842) operates as res judicata and even on this ground, the suit was liable to be dismissed and the decree of dismissal merits to be maintained.

6. Mr. A.R. Shaukat, learned counsel for the appellants, in reply, submitted that the judgment referred to above (AIR 1938 Lahore 842) having not been produced before the learned trial Court, same cannot be noticed and in any case it does not show that the land subject‑matter of the present suit, was also subject‑matter of the suit which culminated in the decision dated 2‑5‑1938. A perusal of the record would show that a certified copy of the judgment passed in the suit by the learned trial Court dated 10‑3‑1937 was filed in the trial Court but ‑unfortunately this judgment was neither noticed by the learned trial Court nor by the learned appellate Court. A perusal of the said judgment would show that the parties to the present suit are successors of the parties to the earlier suit and the land, subject‑matter of both the suits appears also to be the same. A judicial notice can also be taken of unreported case. This judgment at least establishes that the agricultural land was originally received by Mst. Subhano as an occupancy tenant. Mst. Karam Nishan received this land under the family custom of Rajput to the exclusion of collaterals. Mst. Karam Nishan as such had not received the land as a limited owner under custom as the land was held to be self‑acquired property of Ghulam Farid, her father. Even if the said judgment is not noticed and the aforenoted facts following therefrom are ignored, still it was the duty of the appellants‑plaintiffs to establish that the land was received by Mst. Karam Nishan as a limited owner under the custom. Admittedly, no evidence whatsoever was produced to establish the assertion so made in the plaint. In this view of the matter, it cannot be held that Ghulam Farid was last male owner and Mst. Karam Nishan who was daughter had received the land as a limited owner till her life time in the capacity of daughter of last male owner. This being the position, section 2‑A added by Ordinance XIII of 1983 has no application, and the precedents cited by the learned counsel for the appellants including the Supreme Court judgment, Supra, do not stand attracted to the facts and circumstances of the present case. It, therefore, follows that the plaintiffs cannot succeed in their claim to inherit the property in the capacity of residuaries of Ghulam Farid. No other point was urged. The concurrent finding of fact of both the Courts below on the question of limitation was not challenged. For all these reasons, there is no merit in this appeal which fails and is dismissed leaving the parties, however, to bear their own cost. H.B.T/S‑686 Appeal dismissed.