P L D 1958 (W (PLP)

KAIKAUS, J.‑-This appeal arises out of a suit for possession of a house which has been decreed by the Senior Civil Judge, Rawalpindi.

2. The house admittedly belonged to Qutab Din who was the father of Muhammad Ibrahim plaintiff‑appellant. Qutab Din died in the year 1921, leaving behind him the plaintiff, a widow who was the plaintiff's mother and two daughters. The mother too died in the year 1924. The plaintiff's case is that he is an Awan by caste and an agriculturist and in accordance with the agricultural custom by which he is governed he alone was entitled to succeed to the house in dispute. The defendants to the suit are one of his sisters, Mst. Zanab Bibi, and Qaim Din, the husband of this Mst. Zanab Bibi, who are in possession of the house.

3. The defendants pleaded that Qutab Din deceased was non -agriculturist Lohar and was governed not by custom but by Muhammadan Law in accordance with which Mst. Zanab Bibi, defendant No. 2, was also an heir. They pleaded further that a part of the house had been in their possession as owners since long and that this part had been rebuilt by Qaim Din defen dant at his own expense. A will of Qutab Din deceased bequeathing this portion of the house to Mst. Zanab Bibi was also relied upon. The learned Senior Civil Judge framed the following issues:‑ (1) Are the parties governed by custom of agriculturists in matters of succession and what is that custom? (2) Did the defendants construct the house in dispute at their own expense and what is its effect? (3) Had Qutab Din deceased made any will in respect of the house in dispute in favour of Mst. Zanab Bibi, defendant No.

2. If so, when and what is its effect? (4) if issues Nos. 1 and 3 are proved, was Qutab Din competent to make the will? (5) Relief. On issue No. 1 the learned Senior Civil Judge came to the conclusion that the parties were governed by the custom of agriculturists. Issues Nos. 2, 3, and 4 were found against the defendants and the suit was decreed with costs.

4. In the appeal before us it has been urged that the finding of the learned Civil Judge that the parties are governed by custom is unjustified on the record. We have no doubt that that is so. There are two grounds on which the learned Judge has come to this finding. The first is that the parties are Awans and the second that at the time of the death of Qutab Din the land standing in his name was mutated in the name of the plaintiff alone and his sisters took no objection. These grounds, however, are by themselves altogether insufficient for a conclusion that Qutab Din was governed by agricultural custom.

5. In the first place, it is not even correct that Qutab Din was an Awan, i.e. a member of a pre-dominant agricultural tribe. In the mutation on which the learned Senior Civil Judge has relied, Qutab Din is mentioned as a Lohar by caste and not an Awan. In the death entry which related to his name, again, he is entered as a Lohar and not as an Awan. Abdul Aziz (P. W. 1), the only witness produced by the plaintiff, admits that the deceased was a Lohar by profession. The plaintiff himself accepts in his statement as a witness that his father carried on the profession of Lohar and had a shop in Rawalpindi City. It is true that the defendants in their written statement simply denied the allegation as to the deceased being an Awan and while stating that he was carrying on the profession of a Lohar, did not add in so many words that he was not an Awan by caste, but that is probably due to the fact that Qaim Din defendant himself has been giving himself out as an Awan. This circumstance, however, is not of any great importance while deciding the question as to whether the deceased vans an Awan by caste. It is usual for a non‑agriculturist to make a claim to an agricultural caste in order to raise his status as well as to enable him to acquire land from agriculturists. So far as the Lohars are concerned, they have even some excuse to say that they are Awans. If we study the census reports of pre‑partition India, we will find that Awan is mentioned as a sub‑caste of Lohars. There are other sub‑castes too having the same names as those of some agricultural tribes. The Lohars claim that they originally belonged to the castes which are now metioned as their sub‑caste and on account of the fact that they were carrying on the profession of Lohars their caste too was recorded as Lohar. This may be so, but it does not follow that a Lohar whose sub‑caste is Awan still belongs to an agricultural tribe. The origin of many castes is the profession carried on by members of the caste.

6. However, assuming that Qutab Din was an Awan, that fact does not by itself proved that he was governed by agricultural custom. Agricultural custom governs members of a compact village community whose occupation is agriculture. The mere fact that a person is a member of a notified agricultural tribe does not at all raise any presumption that he is governed b custom, unless it be at the same tribe shown that he original belonged to a village and was a member of some village community. Once it is shown that he was a member of such a community, the mere fact that he adopts some non‑agricultural pursuit would not be by itself show that he was no longer governed by custom. In that case the question would be one of abrogation of custom, i.e. whether he had so settled in urban life as to have severed all connections with agriculture. In the case of a person who does belong to an agricultural tribe but who lives in a city and carries on an urban pursuit and who is not shown to belong to a village, no presumption of applicability of agricultural custom arises.

7. This point is by this time settled by good authority. We will refer only to two cases. The first is Mst. Sharifa Begum v. Court of Wards (A I R 1940 Lah. 475) a case where it was alleged on one side that the deceased, who belonged to Gujrat Town, was a Jat and on the other side that he was a Qureshi. The learned Judges held that even if he was a Jat, that fact by itself would not prove that he was governed by agricultural custom. The second and a recent case is clearer. We mean Abdul Karim v. Ghulam Ghaus (P L D 1951 Lah. 386). In that case the question in issue was whether Mst. Nur Jahan, who was a Ghakhar originally belonging to Gujarkhan Tahsil but residing in Pira Gheb, a suburb of Jhelum town, was governed by agricultural custom. The learned Judges said:‑ "We have been taken through the record of evidence in this case by learned counsel. The point seems to have been missed in the Courts below that Nathe Khan the father of Mst. Nur Jan, (sic) was not the original resident of Jhelum District at all. The statement of Sardar Khan appellant as his own witness in the trial. Court is to the effect that Nathe Khan belonged to Gujar Khan Tahsil of the Rawalpindi District. He seems to have shifted some 20 or 25 years ago to Pira Gheb in Jhelum, where he worked as an ordinary labourer. Ghulam Ghaus, the legatee when questioned on the point, professed ignorance as to the place from which Nathe Khan had originally come. There is no doubt that he was a Ghakhar by tribe, but there is not an iota of evidence on the records to suggest that he or his family had anything to do with agriculture at any time, or that the family was residing in any village of Gujar Khan Tehsil. It is clear that, if the family migrated from Rawalpindi District and was governed by custom; they would carry the Rawalpindi custom with them and the Jhelum customary rules would not apply to them. One of the brothers‑in‑law of Mst. Nur Jan was described as a mistri and the other as a fruit merchant. There is no indication that any member of her family had ever pursued agriculture. In these circumstances, it is difficult to hold merely on the basis of the fact that Mst. Nur Jan was a Ghakhar by tribe, which is a notified agricultural tribe in the Rawalpindi District, that her family was governed by custom rather than by Muslim law in matters of alienation".

8. The other fact on which the learned Senior Civil Judge relied, namely, that the daughters had allowed a mutation to be sanctioned in favour of the plaintiff without objection is also not of any great significance. We will refer only to page 481 of the judgment in Mst. Sharifa Begum's case referred to above. Dealing with a similar argument, the learned Judges said:‑ "It is true that in all these instances Muhammadan Law was not followed. But apart from the fact that the property to be partitioned was mostly a residential house and the people living in this part of the country are averse to having a partition in these circumstances especially according to Muhammadan Law which introduces inconvenient fractions, it is well‑known that female heirs seldom contest their inheritance with male heirs and that mothers and sisters are always complainant enough not to insist on their `pound of flesh'". The learned Judges then referred to a large number of cases in support of this proposition. It is not necessary to quote further from the judgment, for the point is well settled.

9. The result is that the decree of the learned Senior Civil Judge, decreeing the suit has to be set aside. However, the result of our‑finding on custom is that the dispute with respect to this house cannot be settled in the absence of the other daughter of Qutab Din who is not on the record. Both parties have admitted before us that this other daughter of Qutab Din, Mst. Aisha Bibi by name, is alive. We have no option, therefore, but to remand the case. The learned Senior Civil Judge will add Mst. Aisha Bibi as a party and will decide the case afresh. The plaintiff may, in the meantime, consider whether in the circumstances he should apply for the amendment of the plaint so as to add the relief of partition. Costs of the appeal shall he the costs in the cause. K.M.A. Case remanded.