P L D 1959 Baghdad﷓ul﷓Jadid 3 (PLP)

The parties to this appeal are the children of Maulvi Muhammad Ashraf‑ud‑Din who died in the year 1948. On the 2nd of February 1952, Maulvi Muhammad Manzur Ahmad, the eldest son of Maulvi Muhammad Ashraf‑ud‑Din, brought a suit a declaration that he was entitled to compensation awardable the acquisition of a piece of, land by the Rahimyarkhan Improvement Trust for the purpose of the Model Town. In the plaint it was alleged that though the plaintiff was entitled to a share in the property left by Maulvi Muhammad Ashraf‑ud‑Din under the Muslim Law, the Rahimyarkhan Improvement Trust had not shown him in their records as one of the persons entitled to compensation awardable for the land originally belonging to Maulvi Muhammad Ashraf‑ud‑Din which had been acquired by the Improvement Trust. The plaintiff prayed for a declaration that he had a share according to Muslim Law in the property acquired by the Rahimyarkhan Improvement Trust.

2. The defendants to the suit were four brothers of the plaintiff, his mother and his two sisters. During the pendency of the suit the mother of the plaintiff died and as she was the mother of all the other parties to the suit, no one was brought on the record as her legal representative. The plaintiff's claim in the plaint was contested by his brothers who pleaded that the land which had been acquired by the Rahimyarkhan Improvement Trust had been gifted to them by their father Moulvi Muhammad Ashraf‑ud‑Din in 1935 and as the plaintiff had no right in the land acquired by the Improvement Trust, he had been rightly considered by the Rahimyarkhan Improvement Trust to have no share in the compensation awardable for the land acquired. A number of other pleas were also raised against the plaintiff's claim and one of them was that the suit merited dismissal as it had not been brought within six years of the date on which Maulvi Muhammad Ashraf‑ud‑Din had made a gift in favour of four of his five sons in June 1935. On the pleadings of the parties the learned trial Judge framed the following issues :‑ (1) Is the suit within time ? (2) Did the plaintiff have any share in the property left by Maulvi Muhammad Ashraf‑ud‑Din which had been acquired for the purpose of the Rahimyarkhan Model Town Scheme, and what is the effect of the Mutation No. 403 which was sanctioned on the 6th of May 1952, on the rights of the parties ? (3) In the event of the success of the plaintiff on issue No. 2, how much compensation he is entitled to ? (4) Did Maulvi Muhammad Ashraf‑ud‑Din in his life‑time give away 33/40th share of his property in Rahimyarkhan to defendants Nos. I to 5, and what effect has Mutation No. 3 on the rights of the plaintiff ? (5) In the event of the decision on issue No. 4 being in favour of the defendants, is the plaintiff entitled to receive compensation as if he had a share according to Muslim Law in the property which had been acquired by the Improvement Trust ? (6) Did the father of the plaintiff disinherit him, and what is the effect of that act? (7) To what relief is the plaintiff entitled ? The trial Judge found that the suit was within time, that though Mutation No. 3, sanctioned in June 193‑5 which purported to gift away 33/40ths of the property of Maulvi Muhammad Ashraf -ud‑lain in Rahimyarkhan to his wife and to his sons other than the plaintiff, yet the gift being no more than a paper transaction the rights of the plaintiff were not affected thereby, and that the plaintiff was entitled to 1/6th of the compensation payable for the land acquired for the Rahimyarkhan Model Town Scheme. The four younger brothers of the plaintiff, who were defendants Nos. 1 to 4 in the suit, presented an appeal in the Court of the Senior Sub‑Judge, Rahimyarkhan, against the decision of the trial Judge. The appeal, which was heard by Sardar Muhammad Ajmal Khan, Senior Sub‑Judge, Rahimyarkhan, was dismissed and against that decision the four brothers of the plaintiff have presented this second appeal impleading the plaintiff and their two sisters as respondents.

3. The first contention of the learned counsel for the appellants was that in arriving at the conclusion that the gift which Maulvi Muhammad Ashraf‑ud‑Din, the father of the parties to this appeal, made in favour of his four younger sons in 1935 was a mere paper transaction, the learned Senior Sub‑Judge had committed an error as the evidence relied upon by him was not sufficient to justify that finding. The finding is clearly on a question of fact and is binding on this Court in second appeal because of section 100 of the Code of Civil Procedure unless it could be shown either that the evidence on which reliance was placed was inadmissible, or any evidence had been misread, or relevant evidence had been kept out of consideration. The learned counsel for the appellants could not show that any of the above‑mentioned three things had occurred and all that he said was that the evidence was not sufficient to justify the conclusion arrived at. There was evidence before the learned Senior Civil Judge on which the finding arrived at by him could be reasonably given and the mere fact that another conclusion may be possible is no ground for setting aside the finding of fact of the lower Appellate Court in second appeal. I would, therefore, hold that the finding of the learned lower Appellate Court that the gift which Maulvi Muhammad Ashraf‑ud‑Din purported .to have made in favour of his four younger sons in 1935 was a mere paper transaction and did not affect the rights of the plaintiff, cannot be reversed in this appeal. In view of this finding, it is not necessary to consider the findings on other issues, except' on issue No. 1, with which I will presently deal.

4. Before taking up the question whether‑ or not the suit was within limitation, I will dispose of another contention of the learned counsel for the appellants. He contended that the judgment of the Senior Sub‑Judge was no judgment in law, because it had not dealt in detail with the evidence on which the findings of fact were based. The judgment of the learned Senior Sub- Judge shows that he had considered all the evidence which had any bearing on the questions before him. It is true that the learned Senior Sub‑Judge did not discuss the evidence in as great a detail as the learned trial Judge had done, but it is obvious that a Court of appeal does not have to indulge in as detailed a discussion of the evidence as the trial Court has to do, especially if the finding of the trial Court is considered by the Appellate Court to be correct.

5. With regard to issue No. I the learned counsel for the appellants urged that the suit for a declaration of the type brought by the plaintiff could have been brought only within six years of the gift which his father made in favour of his four younger sons and as the suit was not brought within that period, it was barred by limitation. There is no doubt that the suit is governed by Article 120 of the Limitation Act and could be brought within six years of the date on which the cause of action accrued to the plaintiff. The question to determine, therefore, is on what date the plaintiff got a right to obtain the relief which he sought in his suit. The parties are admittedly governed by Muslim Law in matters of inheritance and it is hardly open to question that till the death of his father the plaintiff had no share in his property and became entitled to part of that property only on the death of his father. If before the death of his father the plaintiff had brought a suit for a declaration that the gift which his father had made would not affect his rights after the death of his father, it would have been thrown out on the short ground that as under the Muslim Law the plaintiff had no share in the property which his father had gifted to his younger sons, the suit was misconceived. If the parties had been governed by Customary Law, the plaintiff may have' had a right to bring a suit that the gift would not affect his reversionary rights in the property which had been gifted, but the right to bring such a suit is due to provisions of law on the subject and is based on the theory that under custom a person in possession of ancestral property holds it for the lineal descendants of the common ancestor of himself and his collaterals and cannot deprive those descendants of the property except in certain circumstances. The Customary Law right of a son to challenge an alienation by his father cannot be invoked when Customary Law is not applicable to the property in dispute but Muslim Law is. As I have said above, it was only on the death of his father that the plaintiff obtained a right to bring the suit he brought to have it‑held that the gift which his father purported to make in 1935 did not affect his rights and as the suit was brought within six years of the death of his father, it cannot be said to have been instituted beyond limitation.

6. In view of what I have said above, I find no force in this appeal and dismiss it with costs. K.B.A./A.H. Appeal dismissed.