P (PLP)

| Najabat Khan defendant. | _________|________________________ | | Mehr Khan Sher Zaman _____|____________ | | | | Fateh Khan Fateh Jahan Nur Khan | Khan Khan Lal Khan | Ahmad Khan About forty years ago, Khan Zaman, son of Sher Khan died without male issue, but he left a widow, Mst. Mehr Bhari, and a daughter, Mst. Bakht Begum. Upon his death the land in suit, 17 kinals and 12 marlas in area, bearing Khasra No. 1080 in the village Dandi of Attock District, belonging to him, went to his widow as a life estate. The widow died six years before the institution of the suit and upon her death the land in question was mutated in favour of Ahmad Khan who is stated in the judgment of the first Court to be a collateral of the third degree, but who, according to the pedigree‑table, appears to be a collateral in the fifth degree. That, however, is not of any importance. On the 10th June 1944 Ahmad Khan mortgaged this land in favour of Nura plaintiff, but, as possession was still with Nijabat Khan defendant who is a son of the last male owner's daughter, the plaintiff instituted the present suit for possession. It was agreed that if the land in suit is ancestral, Ahmad Khan; the collateral, would be the rightful heir but that if it is non‑ancestral, inheritance would in due course go to the defendant, whose mother, incidentally is still alive. The trial Court held that the land in question was non -ancestral and dismissed the suit. This decision has been confirmed in appeal. The sole question to be decided in this second appeal, therefore, is whether the land in suit is ancestral. The only facts available are that in the first Settlement this, land formed part of the Shamilat which Mehr Khan son of Khan Zaman held in equal shares with Khan Zaman and Nawab sons of Sher Khan and that in the Kafiat Dehi, Exh. P. 13, there was a. statement by the owners in 1865 that the village Dandi had been founded by their common ancestor, Malik Shah Baz Khan, about three hundred years ago, that it had not been abandoned since then and that the Shamilat was owned according to ancestral shares. It was argued in the first place that, since during the first Settlement Mehr Khan son of Khan Zaman on the one hand and his first cousins, Khan Zaman and Nawab, sons of Sher Khan on the other were owners of the suit land in equal shares, it should be presumed that at one time it was owned by the common ancestor, Shah Nawaz. This presumption cannot but 1?e conjectural, for two reasons. Firstly, Shah Nawaz had three sons and it is not clear that the third son, Muhammad Khan, had ever owned a share in the suit land, It should be made clear that the pedigree‑table relates not to the first Settlement but to the second, so that it is merely a matter, for con jecture, that Muhammad Khan also must have existed during the first Settlement and that he should have owned an equal share with his two brothers, that share having descended to the brothers or their‑off spring on his dying issueless. Secondly, Mehr Khan son of Khan Zaman had also a brother, Sher Zaman; who did not .die without male issue and it is not clear why he held no share in: the suit land. If he did hold a share, it is possible that he either sold it or gifted it to his brother, in which case, at least his share would not be ancestral in the hands of Mehr Khan. For land to be regarded as ancestral it is necessary that it should descend by inheritance. The‑second argument was that since the common ancestor was the founder of the village and the Shamilat had been retained in ancestral shares, it should be presumed that it had retained its ancestral character in the hands of Khan Zaman son of Sher Khan. For this purpose reliance was placed on‑the following cases:-‑ (1) Mst. Sahiban v. Chuhar (72 Punjab Record 1913). In this case the question of ancestral nature of the property was disposed of in the following brief paragraph "The question whether the land is ancestral has been fully considered. Chatta was the son of one of the founders of the village and there is no indication that Fatta acquired any land except by inheritance. There is therefore no reason for disagree ing with the concurrent finding of the lower Courts that the land is the ancestral property of the Fatta and the plaintiff -respondent". This case was examined in Shib Singh v. Suba Singh (A. I. R. 1935 Lahore 658) and it was observed that the finding of the Chief Court was apparently based on the observation of the Divisional judge that "the land in suit had come from father to son since the time of Chatta, the common ancestor of the parties, and that there was nothing to rebut the presumption raised by this unbroken transmission". It was thus clear that the land in that case had descended by inheritance. (2) Natha Singh v Mangal (90 Punjab Record 1914). In this case the common ancestor had founded the village and in 1885 the proprietors had stated that the lands held by them had descended from him. It was held that since the land was originally ancestral, it continued to bear the same character and that it was for the defendant to prove that it had lost that character. (3) Umra v. Khotu (62 Indian Cases 984). In this case the proprietors of the village had stated at the time of the Settlement in 1865 that the village had been founded by one Daffar some eleven generations previously and that four generations later it had been divided into four pattis and later into tarafs, being divided up among the descendants of Daffar, and also that the village had never been abandoned or deserted up till then. Relying on the two previous cases cited above, although the facts were not exactly similar, it was held that the statement of the proprietors gave rise to an inference that the land in question was ancestral. (4) Punjab Singh v. Gulab Singh (69 Indian Cases 143). Here not only way the village founded by the common ancestor, there was also a reliable list of persons given by the proprietors during the Settlement of 1 ^92, who had succeeded otherwise than by inheritance, and the list in question contained no mention of any acquisition by the person whose land was the subject‑matter of the suit. (5) Pira v. Fatta (A.

1. R. 1928 Lahore 247). This case does not lay down any principle and contains a very meagre reference to facts. The finding of the learned judge is contained in the following sentence only, without any previous discussion, except a reference to the statement of the Kanungo. "Taking his (Kanungo's) evidence as a whole, as Mr. Muhammad Munir says we ought to do, the impression left on my mind is that according to the revenue papers Chela is undoubtedly the ancestor of the plaintiff Fatta and the alienor Naman, and as Chela owned the entire village, I see no reason to Aiffer from the conclusion arrived at by the Senior Sub ordinate Judge that the property in suit is ancestral qua the plaintiff". All these cages were examined in Shib Singh v. Suba Singh (A. I. R. 1935 Lahore 658) and it was observed that in all of them, "in addition to the circumstance that an ancestor of the parties had founded the village, the plaintiff had produced other evidence which excluded the, possibility of the property having come to the last male owner otherwise than by descent". In that case the village had been founded by the common ancestor and persons of other gots more than six centuries before the succession opened out, and the learned judge, observing that "there is clothing to indicate how the property had devolved in his line, how his descendants and the descendants on other founders had dealt with it in the interval, and. what was tile extent of the land held by each branch of the time of the first Settlement", held that any finding in these circumstances that the land was ancestral would be based not on evidence but on conjectures. Apart from the circumstance that Shib Singh v. Suba Singh was to some extent distinguishable on facts from the pre vious cases, it seems clear that the learned judges in that case departed front the view that if once certain land was found to be ancestral, it retains that character through generations of succession until the contrary is proved, and shifted the onus to the person who asserted that it continued to be ancestral in such circumstances. In Ladha v. Mst. Sardar Bibi (A. I. R. 1930 Lahore 255) it was held by Shadi Lal, C. J. and Jai Lal, J. that, where the common ancestor of the parties was not the sole founder of the village and was disparity in the areas in possession of the two branches of the family, it could not be presumed that the land in possession of the descendants‑Of the common ancestor was ancestral, for there was a possibility of an acquisition of the land in dispute from one of the other founders of the village of their successors. Pursuing this reasoning to its logical conclusion, we might say that even where the common ancestor alone was the founder of the village and it is not shown that the land had descended to the last male owner by inheritance, the possibility of an acquisition of land by some of the successors of the common ancestor, either through gift or through sale, from other successors cannot be excluded. In Inayat Ali v. Muhammad Hussain (A. I R. 1936 Lahore 346) it was held that, for persons relying on the ancestral character of property, it was necessary to prove not only that the common ancestor themselves and the last male owner actually held the property in dispute, but that it had developed from him on the last male holder by inheritance, and that it was not enough that the common ancestor had founded the village. It appears to me that the older view, that once there has been discovered a common ancestor who has founded the village, the onus is shifted to the party who questions the ancestral nature of the property to prove that‑the property in question has descendent otherwise than by inheritance, is no longer in favour, and for a very good reason, namely, that since the common ancestor held the land, there may have been gifts or sales inter se among the successors of the common ancestor. I, therefore, agree with the finding of the Courts below that the land in suit is not ancestral. The appeal is dismissed with costs. K. M. A. Appeal dismissed.