1999 PLP 1265 (YLR)

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑The above captioned two appeals, by way of leave of the Court, have been filed against the judgment and decree passed by the High Court on 22‑6‑1998, whereby the appeal filed by Mst. Zainab Bi and others was partly accepted and the judgment and decree passed by the District Judge were modified. As both the appeals raise common questions of law and facts and have been disposed of by a single judgment of the High Court, we therefore, also propose to dispose them of together.

2. The necessary facts, forming the background of the present appeals, are that a declaratory suit was filed by Mst. Alif Noor, respondent No.1, on 13‑1‑1987, in the Court of Sub‑Judge Dadyal, claiming therein that she along with her two sisters, who were impleaded as pro forma‑defendants in the suit, namely, Mst. Resham Jan and Mst. Khero were entitled to inherit their legal share from the suit land measuring 72 Kanals and 6 Marlas, Khewat No.6, situate in village Ghanair, Tehsil Dadyal, left by their father Khushi Muhammad, who died during Dogra regime. It was also averred that mutation No‑32 was sanctioned in favour of Mst. Alif Noor, plaintiff, Mst. Resham Jan and Mst. Khero, pro forma‑defendants, as being the daughters of the deceased during the Dogra regime as limited owners on 12 Magar 1994 Bk (1938 AD). However, subsequently Mutations Nos.170, 172 and 173 were sanctioned on 9‑9‑1957, in favour of Sher, Manga, Salah Muhammad and Noor Muhammad as cullaterals of Khushi Muhammad, which were illegal and inoperative on the rights of plaintiff and the pro forma‑defendants. It was further averred that the subsequent transfers made by collaterals of Khushi Muhammad through sale‑deeds/gift‑deeds were also ineffective on the‑rights of the plaintiff and the pro forma -defendants. The written statements were filed by the defendants Mst. Zainab Bi, Walayat Ali, Muhammad Zaman, Muhammad Sadiq, Karamat Hussain, son of Salah Muhammad, stating therein that Khushi Muhammad died during Dogra regime and Mutation No.32 was sanctioned in favour of Mst. Alif Noor, Mst. Resham Jan and Mst. Khero as limited owners according to the custom prevalent at that time. When Khushi Muhammad died all the three daughters were unmarried. However, they married during Dogra regime, so Mutations Nos.170, 172 and 173 were correctly sanctioned in favour of collaterals of Khushi Muhammad deceased, the last full owner, and Mst. Alif Noor, Mst. Resham Jan and Mst. Khero were rightly excluded from the inheritance of their father. The suit filed by Mst. Alif Noor was decreed by the Sub -Judge Dadyal vide judgment and decree, dated 25‑9‑1994, observing that Mst. Alif Noor, Mst. Resham Jan and Mst. Khero were entitled to 2/3rd share out of the suit land measuring 72 Kanals and 6 Marlas. The appeal filed by Mst. Zainab Bi and others was dismissed vide judgment and decree passed by the District Judge Mirpur on 10‑7‑1996. Mst. Zainab Bi and others filed second appeal in the High Court of Azad Jammu and Kashmir which was partly accepted by the High Court in the following manner:‑‑ "Mst. Resham Jan, Mst. Alif Noor and Mst. Khero are entitled to a decree for joint possession. The decrees passed by the Courts below are amended to the extent that Mst. Resham Jan, Mst. Alif Noor and Mst. Khero are entitled to the joint possession of 32 Kanals, 2 Marlas and 6 Sarsahis. Mst. Zainab Bi will be entitled to the joint possession of 3 Kanals and 2‑1/4 Sarsahis. Resham Jan will be further entitled to 3 Kanals and 2‑1/4 Sarsahis as heir of Mst. Makhani. The appeal is accepted to the extent indicated hereinbefore."

3. It was vehemently contended by Ch. Muhammad Sabir, the learned counsel for the appellants Mst. Zainab Bi and others, that although the High Court held that the land belonging to Khushi Muhammad was to be distributed according to custom and Mst. Resham Jan is deprived of her share due to marriage during Dogra regime but the fact remains that marriage of Mst. Alif Noor and Mst. Khero was also solemnised in Dogra regime before the enforcement of Shariat Law as such they were also not entitled to get any share of land left by their father. Similarly Mst. Makhani Bi and Mst. Zainab Bi, the widows of the deceased, according to the learned counsel, also got remarried in Dogra regime as such they were also not entitled to the share of land left by their husband. The learned counsel contended that Mutation No.32 was attested in favour of Mst. Alif Noor, Mst. Resham Jan and Mst. Khero, the daughters of the deceased, as limited owners and they also married during Dogra regime, therefore, their rights to the property exting uished according to the custom prevalent at that time. Thus, Mutations Nos. 170, 172 and 173 were correctly sanctioned in favour of collaterals of Khushi Muhammad. The learned counsel argued that the documentary, as well as the oral evidence, was not appreciated in its true perspective. The learned counsel also submitted that the suit filed by Mst.Alif Noor was time‑barred, however, the Courts below did not advert to this point.

4. Arguing the case on behalf of Mst. Alif Noor and others, Raja Imdad Ali Khan, the learned counsel, submitted that the High Court erred in observing that the land of Khushi Muhammad deceased was to devolve according to custom prevalent at the time. The learned counsel submitted that Muslims were governed by the Personal Law even in the Dogra regime unless it was alleged that a particular family was governed by custom and the custom was to be proved strictly. The learned counsel also submitted that the concurrent findings of fact recorded by the Sub‑Judge and the District Judge were set aside without any legal justification by the High Court as the same were neither erroneous nor there was any non‑reading or misreading of evidence.

5. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record. The trial Court on the basis of pleadings of the parties framed as many as eight issues and after recording the evidence of the parties and at the conclusion of the trial reached the conclusion that though deceased Kttushi Muhammad died during Dogra regime and the mutation of the suit land was sanctioned in favour of her three daughters, but the defendants failed to prove that the parties were governed by the custom prevalent during the Dogra regime. It was also observed by the trial Court that the defendants failed to prove that the daughters of deceased Khushi Muhammad married during the Dogra regime. In the alternative the trial Court observed that even if it be presumed that the daughters of Khushi Muhammad married during Dogra regime, the Muslims in the State were governed by their Personal Law even in the Dogra regime unless and until the custom was alleged and proved opt the basis of concrete and cogent evidence. The learned District Judge on appeal filed by Mst. Zainib Bi and others concurred with the findings recorded by the trial Court and thus, upheld the decree passed by the Sub‑Judge. However, in second appeal filed by Mst. Zainib Bi and others, the same was partly accepted and the judgment and decree of the trial Court were modified as indicated while narrating the facts of the case. The High Court formed the view that Mst. Resham Bi, one of the daughters of deceased Khushi Muhammad, has admitted in her statement before the trial Court that their village was governed by custom. It was further admitted by the said witness that the marriages of Mst. Alaf Noor and Mst. Khero took place after the partition on the same day. However, according to the statement of Mst. Resham Bi herself, her marriage took place during the Dogra regime. Another witness of plaintiff Dil Muhammad also conceded that the marriage of Mst. Resham Bi took place during Dogra regime, however, the marriages of Mst. Alaf Noor and Mst: Khero were solemnised after partition in 1950 on the same day. Mst. Zainib Bi, defendant, also appeared as a witness in the trial Court and admitted the marriage of Mst. Resham Bi to have taken place during the Dogra regime and the witness herself also remarried in Dogra regime. In presence of the overwhelming evidence brought on record by both the parties, the inevitable conclusion is that Mst Resham Jan, one of the daughters of deceased Khushi Muhammad, of course married during Dogra regime and the custom was prevalent at the time in the village of deceased Khushi Muhammad. The law on the point stands settled that if a daughter of a Muslim married during the Dogra regime, she would be deprived of the inheritance provided a custom is alleged and proved. Therefore, it follows that it has been abundantly proved by the oral as well as the documentary evidence that Mst. Alaf Noor and Mst. Khero, the daughters of deceased Khushi Muhammad, married well after the partition. So, naturally their case will be governed by the personal law. On the basis of admission made by Mst. Resham Bi, one of the daughters of deceased, that she married during the Dogra regime and that the custom was prevalent at that time in the village of Khushi Muhammad, so she stands deprived of the property left by her father Similarly it has also been brought on record that both Mst. Zainib Bi and Mst. Makhani Bi, the widows of deceased, also remarried during the Dogra regime. From the evidence of Mst. Resham Bi and Mst. Zainib Bi recorded in the trial Court it becomes crystal clear that both the widows of deceased remarried during Dogra regime. Consequently they would also be deprived of the inheritance of their husband. There is another important factor of the case that mutation No.32 was sanctioned in favour of three daughters of deceased during the Dogra regime as limited owners which is attached with the file of the trial Court as Annexure 'J'. So, the admission made by Mst. Resham Bi coupled with the factum that mutation No.32 was sanctioned in favour of three daughters during the Dogra regime as limited owners, sufficiently prove that the parties were governed by custom. Thus, Mst. Resham Bi was deprived of inheriting from her father.

6. The High Court while passing a decree of joint possession in favour of plaintiff‑appellant and pro forma‑defendants, in our view committed a grave error in calculating and determining the shares of the patties. The total land belonging to deceased Khushi Muhammad was to the tune of 72 Kanals and 6 Marlas. Mst. Resham Jan, one of the daughters of deceased, after having been deprived of the inheritance of her father, 2/3rd share shall go to plaintiff‑appellant Mst. Alaf Noor and pro forma‑defendant Mst. Khero which comes down to 48 Kanals and 4 Marlas. Both the widows of deceased Khushi Muhammad, namely, Mst. Zainib Bi and Mst: Makhani Bi, on the basis of evidence on record, remarried during Dogra regime so they will also be deprived of the inheritance of their deceased, husband Khushi Muhammad. So, the 1 /8th share of Mst. Zainib Bi and Mst. Makhani Bi, the widows of deceased, comes down to 9 Kanals and 7 Sarsahis, which after their remarriage shall go to the two daughters, namely, Mst. Alaf Noor and. Mst. Khero to the extent of 2/3rd. The collaterals of deceased Khushi Muhammad who in the appeal filed by Mst. Alaf Noor are entered as respondents shall be entitled to a share of 1/4th which after calculation comes down to 18 Kanals, 1 Marla and 7 Sarsahis. So, the decree passed by the High Court needs the modification accordingly, which we propose to pass by the end of our judgment.

7. The learned counsel for the appellants, Ch. Muhammad Sabir, half heartedly contended that the suit filed by Mst. Alaf Noor, the appellant herein, was barred by limitation as the suit land had all along been in possession of respondents as owners. In the alternative he submitted that the possession of respondents had become adverse with the passage of time. We regret to subscribe to his view as Mst. Alaf Noor categorically mentioned in her plaint that during the settlement it came to her knowledge that the impugned Mutations Nos. 170, 172 and 173 were sanctioned. Therefore, according to her the cause of action arose to the plaintiff six months prior to the filing of the suit. When Mst. Alaf Noor appeared as her own witness in the trial Court a lengthy cross‑examination was made during her statement but nothing positive or useful purpose was achieved by the learned counsel cross‑examining the plaintiff. We may simply observe that the possession of respondents on the suit land was in their capacity as co -sharers which will be deemed to be on behalf of all the co‑shares. In case of adverse possession in a jointly owned land unless the total ouster is proved, the plea of adverse possession is always a difficult proposition which is exactly applicable in the present case. The respondents could not bring on record even an iota of evidence with regard to the total ouster of possession of plaintiff appellant and pro forma‑defendants. In this view of the matter the plea that the suit filed by the plaintiff‑appellant was barred by limitation or that the possession of respondents had ripened into ownership stands repelled.

8. In the light of what has been stated above, we dismiss Civil Appeal No.92 of 1998 filed by Mst. Zainib Bi and others and accept Civil Appeal No.93 of 1998 filed by Mst. Alaf Noor and others, by setting aside the impugned judgment and decree of the High Court and pass a, decree for joint possession of land measuring 54 Kanals, 4 Marlas and 2 Sarsahis of the suit land in favour of Mst. Alaf Noor, the appellant herein, and Mst. Khero, pro forma‑defendant, the daughters of deceased Khushi Muhammad. The suit, thus, filed by Mst. Alaf Noor stands decreed in the terms indicated above and it is also declared that the subsequent transfers by way of gift‑deeds/ sale‑deeds exchange and others shall also be inoperative on the rights of plaintiff‑appellant Mst. Alaf Noor and pro forma‑defendant Mst. Khero, the daughters of deceased Khushi Muhammad. The collaterals of deceased Khushi Muhammad have been held entitled to 18 Kanals, 1 Marla and 7 Sarsahis but since there is no suit against the whole land, their entitlement to that extent shall remain intact. The appeal filed by Mst. Zainib Bi and others stands dismissed with no order as to costs. H.B.T./400/SC(AJ&K) Order accordingly.