P L D 1961 (W (PLP)

WAHIDUDDIN AHMAD, J.‑This is a first appeal against the judgment of Mr. Rasool Bux B. Leghari, First Class Sub‑Judge, Nawabshah, in First Class Suit No. 32 of 1954 dated 31‑10‑1957, holding in a partition suit that the appellants are not entitled to claim any share in the property in dispute as descendants of Saban. The parties to this are related to each other, and their relationship inter se will appear from the following pedigree-table:- MUHAMMAD BUDHAL _______________________|_____________________________ | | | Md. Laik Peeru Saran | ____________|__________ | | | | |______ Mst. Malah=Buxo Mst. Noor Khatu Dur Md.=Mst. Izat (P. 14) | _________| _______|_________ | Imam Bux | | | Pir Bux ‑Mst. Hajra (P. 13) | | Mst. Khatu Mst. JamaI Khatu | | | (D. 10) (D. 11) ___________| | | __________________|_____________________________ | | | | | | | | | Dur M d. Dost Md. (Ali Husain) (Ali Hasan) Bashir | | (P. 8) (P. 9) (P.10) (P. 11) (P. 12) | | ________________________________| | ________________________|_______________________________ | | | | | | | | Budhal=Mat. Nooran Umardin Md. Safar Saban Amindin Md.Sidik | | (P.6) (P.5) (P.4) (P.3) (P.2) (P.1) | | | | ushtaq Ahmad _____________________________| | (P.7) __________________|______________________ |_______ | | | | | | | | | | | Md. Waris = Mst. Fatima Abdul Hakim Gulam Hyder Kaim | | (D. 4) (D.1) (D.3) | | | Nabi bux=Mst. Bhan Bhen Ahmed‑Mst. Chutan (D. 2) (D. 5) _____________________________| _________________________ | _____________________________ | | | | Abdul Aziz (D.7) Mst. Subhan (D. 8) Yakub (D. 6) Mst. Gullan (D.1) The common ancestor of the parties was one Muhammad Budhal, who' was survived by two sons Muhammad Laik and Saban. On the death of Muhammad Laik his property was inherited by one Buxo Khan. The property in dispute consists of eleven survey numbers viz. Survey Nos. 9, 19, 34, 59, 70, 71, 78, 92, 178, 253 and 314 measuring about 63 aores 17 ghuntas of agrisultural land situated in deh Burira, Taluka Naushahro Feroze. The appellants‑plaintiffs' case before the learned Subordinate Judge was that out of these survey numbers, Survey Nos. 9 and 34 exclusively belonged to Saban son of Budhal, and the rest of the survey numbers belonged in equal shares to Buxo Khan and Saban as shown in the revenue records for the year 1897‑

98. Exh. 56/2, and Buxo Khan, the nephew of Saban being the eldest member of the family, was shown as the principal Kathedar in the revenue records. Somewhere before 1908, Buxo Khan died and was survived by two widows: Mst. Malha and Mst. Noor Khatu and Muhammad Waris a son, and Mst. Khatu and Mst. Jamal Khatu two daughters from Mst. Noor Khatu who inherited his share in the propetty in dispute. Mst. Malha; , one of the widows of Buxo, also died somewhere between 1918 and 1942, and her share in Buxo's property was inherited by his widow Mst. Fatima and Nabi Bux his son. Mst. Noor Khatun, the second widow of Buxo. died somewhere between the year 1942 and 1947, and her share in the property of Buxo was inherited by her two daughters Mst. Khatu and Mst. Jamal Khatu and Pirbux her nephew. Pirbux, died in the year 1954 and was survived by five sons: Dur Muhammad, Dost Muhammad, Ali Hussain, Ali Hassan and Bashir Ahmed, appellants 8 to 12, and Mst. Hajran a widow, and Mst. Izat, mother, appellants No. 13 to 14, who got his share in the property in dispute. Mst. Fatima, widow of Mohomed Waris, gifted her share to her son Nabi Bux, but Nabi Bux died in the year 1947, and his share in the property in dispute was inherited by his mother Mst. Fatima, his widow Mst. Bhan Bhen and as he left no male heir, was also inherited by five cousins: Muhammad Sidik (Appellant No. 1), Amin Muhammad, Saban, Muhammad Saffar and Umerdin, appellants Nos. 1 to 5 and Budhal deceased as residuaries, Mst. Fatima, the mother of Nabi Bux, also died, and her share was inherited by Ghulam Hyder, Kaim and Abdul Hakim, three brothers, respondents Nos. 1 to 3 and 4, and Mst. Chuttan, a sister. Mst. Chuttan also died her share in the roperty left by Mst. Fatima was inherited by Ahmed, husband Yakub and Abdul Aziz, two sons, and Mst. Subhan and Mst. Gullan, two daughters, respondents Nos. 5 to

9. Budhal, one of the cousins of Nabi Bux, died in January 1954, and his share both in the property left by Nabi Bux and inherited from his father Imambux son of Saban was inherited by Mst. Nooran, widow and Mushtaq Ahmed, a son, appellants Nos. 6 to

7. It will thus be noticed that both appellants Nos. 1 to 14 and respondents Nos. I to 11 are co‑sbarers in the property in dispute in the line of the deceased Mohamed Laik son of Mohamed Budhal. Saban, the second son of Muhammad Budhal on his death, left Imambux, a son, as his only heir. Imambux died in the year 1918, and was survived by five sons : Muhammad Sidik, Amir,Muhammad, Saban, Muhammad Saffar and Umerdin, appellants Nos. 1 to 5, and deceased Budhal. After the death of Budhal, his share in the property left by Imambux was inherited by his widow Mst. Nooran and Mushtaq Ahmed, appellants Nos. 6 to

7. Thus appellants Nos. 1 to 7 claim share in the property left by Saban. The appellants' case before the learned Subordinate Judge was that Survey Nos. 9 and 34 exclusively belonged to Buxo Khan and Survey No. 59 exclusively belonged to their ancestor Saban, and the rest of the survey numbers belonged both to Buxo Khan and Saban in equal shares. They alleged that Mst. Fatima gifted her share in the agricultural land inherited from deceased Mohamed Waris to her son Nabi Bux. They claimed that they were also in joint possession of the property in dispute as heirs of Saban and claimed partition of the agricultural land in dispute. On the other hand, the case of the respondents was that the property mentioned in paragraph (s) of the plaint solely belonged to Muhammad Waris and appellants Nos. 1 to 7 are not entitled to any share in the property in dispute as residuaries on the death of Nabi Bux. They further denied the alleged gift of Mst. Fatima in favour of Nabi Bux after the death of Muhammad Waria. They also claimed that Mst. Khatu and Mst. Jamal Khatu after the death of their father Buxo Khan gifted their share in the property to Muhammad Waris. According to the respondents the property in dispute throughout was managed by Buxo Khan, Muhammad Waris and Nabi Bux. They further pleaded that both Buxo Khan and Imambux owned, besides the property in dispute, considerable agricultural property and in exchange the property in dispute came to the lot of Buxo Khan in the year 1908. The learned Subordinate Judge on these pleadings struck the following issues :‑ (1) Whether the suit is not in proper form. (2) Whether the suit is time‑barred. (3) Whether the proper parties have not been brought in the suit. (4) Whether Bakshan and Saban had exchanged their respective shares in original properties and became the sole owners. (5) Whether Waris was the owner of 16 annas at the time of his death, and who were his legal heirs to inherit his property and what were their shares. (6) Whether the defendants Nos. 1 to 4 and Mst. Chuttan are entitled to shares as shown in para. 11 of the written statement. (7) What are the shares of the parties. (8) Whether the parties are in joint possession of the said land. (9) Whether there has arisen any cause of action. (10) What should the decree be. The finding on issues Nos. 1 to 3 are not challenged by the respondents in this appeal. The learned Subordinate Judge's findings that Mst. Fatima widow of Mohamed Waris gifted her share to her son Nabi Bux and Mst. Khatu and Mst. Jamal Khatu daughter of Buxo Khan did not gift their share in the property in dispute are also not challenged in this appeal. The appellants have attacked the judgment of the Court below only in respect of the finding that Saban one of the ancestors of appellants Nos. 1 to 7 had no right in the property in dispute and they are not entitled to claim any share in it through him. The sole question, .therefore, for determination in this appeal is whether the claim of the appellants that out of the property in dispute, servey Nos 9 and 34 exclusively belonged to Buxo Khan and survey No. 59 exclusively belonged to Saban, and survey Nos. 19, 59, 70, 71, 78, 92, 178, 253, and 314 belonged to both Buxo Khan and Saban in equal shares has any foundation. The parties, apart from documentary evidence, also led oral evidence in support of their case. Besides P. W. 1 Muhammad Sidik, appellants also examined P. W. 2 Dhani Bux and P. W. 3 Mohamed as witnesses in the trial Court. P. W. 2 Dhani Bux's son is a hari of appellant Muhammad Sidik and his statement that most of the land in dispute was owned in equal shares by the heirs of Buxo Khan and Saban and appellant Muhammad Sidik began to manage this land in the life‑time of deceased Muhammad Waris is not free from doubt. P. W. 3 Mohammed was unable to state whether Buao Khan and Imambux were partners in the ancestral property or in self‑acquired property, but made a positive statement that Muhammad Waris and appellant Muhammad Sidik used to share the produce in equal shares. All the witnesses stated that the property in dispute was jointly owned by BuxQ Khan and Imambux. The learned Subordinate Judge did not accept their version and rejected their evidence. On the other hand, the respondent examined four witnesses viz., D. W. 1, Kaim, D. W. 2, Amir Shah, D. W. 3, Mst. Bhan Bhen and D. W. 4, Ghulam Rasul. Most of the witnesses stated that the property in dispute solely belonged to Buxo Khan, and on his death to Muhammad Waris, and it had nothing to do with Saban. They also stated that appellants Nos. 1 to 7 are not entitled to claim any share in the property in dispute through Saban. D. W. 1 Kaim stated that in the year 1908/1909 there was partition between Saban and Buxo Khan, but admitted it is not supported by any entry in the revenue records. He also denied that appellant Muhammad Sidik managed the property in dispute in the life‑time of Waris. D. W. 2 Amir Shah's evidence is not of much importance. D. W. 4 Ghulam Rasul admitted that Imam Bux used to look after the property in dispute, and after his death Muhammad Sidik used to look after this land. D. W. 3 Mst. Bhan Bhen widow of Nabi Bux, stated that Waris used to look after the land in dispute and after his death Nabi Bux, her husband, was managing the land. She denied the suggestion that Muhammad Sidik used to look after the land of Waris. The learned Subordinate Judge had also not attached much importance to the oral evidence produced on behalf of the respondents. He has decided the case in favour of the respondents on the basis of the documentary evidence produced before him. His appraisal of the evidence of the parties is as under " The burden of this issue lies on the defendants. The defendants have produced the certified copy of record Exh. 74‑A. This record pertains to the year 1937‑

38. In this record all the S. Nos. shown in para. 2 of the plaint are entered in the name of Muhammad Waris son of Nabi Bux. This Nabi Bux is the same as Buxo shown by the plaintiffs. As against this the plaintiffs have produced record of three S. Nos. which is Exh. 56 on record. This record pertains to the years 1909‑10 and 1897‑

98. In this record these S. Nos. have been shown as property of Buxo and Saban and then of Waris and Saban. This shows that Buxo died before Saban. Saban was alive when Buxo was dead. The bills and the receipts produced by the plaintiffs show that these S. Nos. were the property of Muhammad Waris, i.e., the son of Buxo. It is stated by the plaintiffs and is also admitted by the defendants that when Saban died, he had left Imam Bux his son. If the property 'under dispute had been the property of Saban or if he had any share in it, the name of Imam Bux and his heirs must have come on the record. The allegation of the defendants is that both Buxo and Saban had divided and exchanged their properties. The property under dispute came to the lot of heirs of Buxo. Had there been any share of Saban in this property, the name of Imam Bux the son of Saban or his heirs must have been entered on record. Saban was alive when Muhammad Waris inherited the property of his father. Since the lastest record is in the name of Waris and the bills and receipts we're issued in his name, this shows that this property came to the lot of. Buxo. Saban or his heirs had nothing to do with this property. Besides this the parties have led oral evidence which is an interested one. The evidence of defendants shows that there was private partition of property. That their ancestors used to cultivate the property and that there were no other co‑sharers with them. The evidence of the plaintiffs is that they used to look after the properties. The evidence of defendants further shows that plaintiff Muhammad Sidik came to look after the death of Mohamed Waris. Thus the contention of the defendants gets support from Exh. 74‑A. Thus the properties of Bexan and Saban were separated and exchanged and each one became the sole heir of his share. The property under dispute came to the lot of descendants of Buxo." Mr. Chandnani, the learned counsel for the appellants has attacked the finding of the learned Subordinate Judge on the following grounds :‑ (1) That the respondents' case that there was exchange of property between Buxo Khan and Saban is belied by the entries to the revenue record of 1910, Exh. 56/1, which showed that the land in dispute was mutated both in favour of Muhammad Waris and Saban in equal shares. (2) That there being no satisfactory and direct evidence of the partition, the learned Subordinate Judge should not have accepted it merely on the ground that after 1937 the property in dispute was entered in the revenue records only in the name of Waris. (3) That the learned Subordinate Judge should have held that since Muhammad Waris was the eldest member of the family, his name was entered as principal Khatedar according to the practice of following in Sind, and (4) That the admission of D. W. 4 Ghulam Rasul that Imam Bux father of Muhammad Sidik, and after his death Muhammad Sidik used to look after the whole of the land, proves the joint possession of the appellant in it through Saban. This appeal was heard on the 24th and 25th of January 1961, After hearing the learned counsel for the parties; we felt the necessity of recording additional evidence to find out under what circumstances the name of Muhammad Waris appeared as the, exclusive owner of the property in dispute in the year 1937‑38.1 In pursuance of our order under Order XLI, rule 27, C. P. C. the parties summoned A. W. 1 Shamsuddin (Exh. 6) Mukhtiarkar, Naushahro Feroze. This witness was directed to produce Village Form No. 6from the years 1909 to 1936 and from 1937 to 1954‑

55. He produced the revenue record for the years 1909 to 1919 and from 1937 to 1954‑55 in respect of the land in dispute but stated that the record relating to Village Form No. 6 from 1916 to 1936 is not traceable in the office of the Mukhtiarkar. Naushahro Feroze. He further stated that Survey No. 19 stood in the name of Waris and Sabban Budhal in equal shares from 1909 to 1916. He admitted that the entries as recorded in Exh. 56/1 continued up to the year 1915 in Village Form No. 6, which means 1915‑

16. This witness further stated that the record of Village Form No. 7 is only available from 1927 to 1945‑

46. According to him the record prior to 1927 and after 1945‑46 was not traceable in Mukhtiarkar concerned office. He informed the Court that the matter is under investigation and the higher authorities have been informed that these records are missing. He produced two entries from the register of Village Form No. 7 for the years 1927 to 1946 namely, Exhs. 6/1 and 6/2 The entry in Exh. 6/1 at Serial No. 28 shows that Survey Nos. 53, 70, 71, 78, 92 and 178 are recorded in the name of Waris son of Buxo as per private partition he had received the share of Saban. Similarly in Exh. 6/2, Survey No. 59 at Serial No. 30 is recorded in name of Waris, Nabi Bux Memon, as proprietor as per private partition. This witness was also directed to produce the register of disputed cases from 1931 onwards but he stated that between 1939 and 1954 there was no entry in respect of the property in dispute in the Register of Disputed Cases. He admitted an entry in 1954 in the Disputed Register, which was already produced on the record. This witness also brought a Book of Statement containing the statements of parties for mutation of names in the Record of Rights from 1939 to 1944, 1944 to 1947 and 1949 to 1958 and admitted that it contained no statement before 1954 in respect of the property in dispute. Mr. Lakhani, the learned coutisel for the respondents, proved through him Exb. 6/3, statement by Mst. Jamal Khatu and Mst. Khatu purported to be an oral gift in favour of Muhammad Waris, but as the respondents have not filed any appeal against the adverse finding on this question, this entry case have no bearing on the decision of this appeal. It is therefore not taken into consideration. Thus, on the additional evidence; it is proved that in the year 1927 some of the survey numbecs..l which are the subject‑matter of the litigation between the parties,) were recorded in the name of Muhammad Waris on the basis of private partition between him and Saban. Mr. Chandnani, the learned counsel for the appellants, has urged before us that entries Exbs. 6/1 and 6/2 have no value unless and until the corresponding entries in the Book of Statement are produced to show in what circumstances the survey numbers mentioned therein were entered in the name of Muhammad Waris. . He therefore urged that these entries should not influence the decision in this appeal. This contention appears to us to be without any force. In, law, the entries in the Record of Rights.i though not conclusive, are evidence of facts stated therein. More: over section 135 of the Bombay Revenue Code provides that sucq r. an entry shall be presumed 'to be true until the contrary i, proved. There is no cogent evidence in this case to hold that these entries are not recorded according to facts and are bogus. No such evidence has been produced before us by the appellants in this appeal. In fact, the examination of A. W.

1. Shamsuddin proves beyond doubt that the' entries produced by him for the year 1.927 are absolutely correct add no doubt can be cast about their genuineness as they have been produced through ptoper custody. There is a finding of fact of the Court below against the appellants that the property in dispute solely belonged to Muhammad Waris and Saban, the grand father of Appellants 1 to 7 at the time of his death had no interest in it. But Mr. Chandnani urged that in view of the admission of D. W. Ghulam Rasul in the lower Court that Imambux the father of Appellants 1 to 7 was managing the whole of the perperty in dispute and thereafter it was managed by Muhammad Sidik, the appellants have established their joint possession in, the property in dispute and their right cannot be affected simply because in the revenue record the name of Muhammad Waris was entered as the owner of the property in dispute. The learned counsel in this connection referred us to Exhs. 56/1 and 56/2, the entries in the revenue records for the years 1897‑98 and 1909‑1910 respectively. It is quite true that the revenue records for these years show that the property in dispute was entered in the name of Muhammad Waris and Sabin' in equal shares, but the later entry of 1927 clearly proves that this property came to the share of Muhammad Warisonaccountof a private partition between him and Muhammad Saban. The admission of D. W. 4 Ghulam Rasool can be ex plained on so many hypotheses. P. W. 1 Muhammad Sidik admitted in his evidence before the learned Subordinate Judge that "Saban had 12 or 13 S. Nos. of his own which he left in Deh Burira." There is no evidence before us from where these survey numbers came to Saban and the possibility that on partition between Saban and Muhammad Waris these 12 or 13 survey numbers came to the share of Saban cannot be ruled out. There is no positive evidence on this point, but such an inference can 4e legitimately made on the evidence of P.W. 1 Muhammad Sidik in this respect. It is also admitted by P. W. 1 Muhammad Sidik that appellants Saban and Muhammad Saffar are supervising tapedars. Muhammad Satfar, at the time of his statement, was posted at Kandiaro Taluka and Saban was under suspension for the charge of forgery of Government records. This witness also admitted that one of his sons, Rasul Bux, is a tap‑.dar in Moro Taluka. Thus it is clear that some of the appellants are serving in the Revenue Department in the former Province of Sind and it is difficult to believe that they would allow the name of Muhammad Waris to stand in the revenue records in 1927 as exclusive owner till the 61ing of the suit for partition. The fact that the name of Muhammad Waris was entered on account of private partition between him and Saban, must have been within the knowledge of these appellants and if these entries were not correctly recorded, they would have come much earlier and chal lenged their correctness in order to claim their right in the pro perty in dispute through Saban, but no such attempt had been made right uptill now. Mr. Chandnani, the learned counsel for the appellants referred us to several documents to show that from 1951 onwards P. W. 1 Muhammad Sidik was paying land revenue in the name of Muhammad Waris and argued that being in joint possession it was not at all necessary for the appellants to file any suit for setting aside the entries in the revenue record. This con tention appears to us also to be without any substance. Admit tedly P. W. Muhammad Sidik was paying land revenue in the name of Muhammad Waris. The last male heir in the line of Buxo Khan died in the year 1:947, which fully explains the payment of land revenue by P. W. 1 Muhammad Sidik D. W. 3 Mst. Bhan Bhen's statement leaves no doubt in our mind that this appellant being a made heir of deceased Nabi Bux was managing the land in dispute on behalf of other heirs of deceased. Thus there was noth ing in his management of the property in 1951 which would show that he was doing so through Saban and not as heir of deceased Nabi Bux so as to defeat the respondents' case. Mr. Chandnani made a feeble attempt to produce before us certain receipts about the payment of land assessment from the year 1945, but the fact that some of the appellants in this case are employees in the Revenue Department cannot be lost sight of and Mr. Lakhani's contention that these are not above suspicion, otherwise they would not have been produced at such a late stage is not without force. We therefore declined to admit evidence on the record because in our opinion it was not at all necessary for the decision of the appeal, and we did not consider it proper to admit such suspicious documents on the record. Mr. Chandnani then took us through the Village Manual in force in the former Province of Sind. He made a feeble attempt to show that usually joint property is entered in the name of the senior member of the family. We have not been able to discover any such rule either from the Land Revenue Rules or from the Village Manual referred to and produced at the Bar. It further appears to us that the contention of the learned counsel for the appellants that the name of Muhammad Waris remained on the revenue record because he was a senior member of the family has lost all force in view of entries of 1927 produced before us by A.W.1 Shamsuddin. These entries give the source and the basis on which the name of Muhammad Waris was recorded as sole owner. We gave ample opportunity to the appellants to produce any evidence to rebut these documents, but no. satisfactory evidence is forthcoming to rebut the presumption of their correctness. Lastly, it was urged it that was not open to the Court to make out a new case for the appellant. The contention of Mr. Chandnani that the respondent should be confined to the alleged private partition in 1908 between Buxo and Saban has not impressed us. None of the respondents are so old as to have personal knowledge of the fact of partition between two branches of the family. In these circumstances the date of partition mentioned in these pleadings was only a guess work. But since the burden of proof that the property in dispute was joint between Saban and Muhammad Waris was on the appellant, any weakness in the respondents' pleadings in this behalf, cannot strengthen or improve their case. In the circumstances the appellants' case that Saban died in 1904 and his son Imam Bux died in 1918 cannot be given much credence. P. W. 1 Muhammad Sidiq is the only witness, who deposed about the year of their death. His statement on the documentary evidence produced by the appellants cannot be believed. Exhs. 56/2 and 56/2 leave no doubt that Buxo Khan died somewhere between 1898 and 1909 and Saban was alive in the year 1910. It will be noticed that revenue records between 1916 and 1926 are not forthcoming and the possibility that the private partition between Muhammad Waris and Saban took place somewhere during this period cannot be ruled out. In our opinion the non‑availability of the revenue record from 1916 to 1926 of the property in dispute does not in the least advance the appellants' case and we are satisfied that private partition did take place between Muhammad Waris and Saban and the property in dispute as recorded in the revenue records fell to the share of Muhammad Waris. After careful consideration of the whole evidence on the record, we are satisfied that the learned Subordinate Judge was fully justified in upholding the plea of the respondents that the agricultural property in dispute solely belonged to Muhammad Waris and the appellants' claim that they were entitled to claim share in it as decendants of Saban was rightly disbelieved. Accordingly the learned Subordinate Judge was perfectly justified to determine the shares of the parties on the basis that the pro perty dispute belonged to Muhammad Waris. No other point was urged before us. In this view, the decree passed by the learned Subordinate Court is upheld and we hold that the land in dispute will be partitioned between the parties in pursuance of the decree passed in the suit. In the result, the appeal is dismissed with costs throughout. K. M. A. Appeal dismissed.