P L D 1979 Supreme Court 890 (PLP)

KARAM ELAHEE CHAUHAN. J.‑Roshan Din and eight others (hereinafter called plaintiffs) filed a suit bearing No. 254/1 on 14‑7‑1964 against 31 defen dants for a declaration‑ (a) that they along with pro forma defendants 18 to 31 were the owners in possession of the suit land as detailed in the plaint in their capacity as heirs of Ghulam Din, the propositus ; (b) that a decree dated 10‑11‑1954 in an earlier suit bearing No. 322/1 and consequent Mutation No. 367 dated 22‑&1961. (c) that Mutation No. 193 attested on 24‑1‑1956 based on a decret; in Suit No. 24/1, dated 15‑3‑1964 Exh D. E. 7/7 ; and (d) that the registered sale deeds bearing Registrations Nos. 351 and 352 dated 29‑6‑1963 were fraudulent, collusive, illegal, void and ineffective against the rights, title and ownership of, and were not binding on, the plaintiffs and defendants 18 to 31.

2. Defendants Nos. 8, 9, 12, 13, 18, 21, 22, 24, 25, 26, 30 and.31 filed written statements admitting the claims of the plaintiffs. However, Abdul Ahad (defendant No. 14), Abdul Qayum (defendant No. 15), Abdul Hakeem (defendant No. 16) and Abdul Hamid (defendant No. 17) only contested the suit, whereas the rest of the defendants did not appear and were proceeded ex parte.

3. It may be mentioned that the land involved in the suit was of two categories, namely, (i) proprietary land and (ii) occupancy land ‑(and though this land also later became ownership land, but for the purpose of the present order it will be convenient to describe it with its old label, namely, occupancy land or erstwhile occupancy land).

4. The case was triad by the learned Civil Judge, Abbottabad, who, by means of his judgment dated 25‑7‑197 passed a decree declaring the plaintiffs and the defendants concerned as heirs of Ghulam Din propositus. Para. 11 of the judgment of the learned Civil Judge, whereby he granted the relief, is relevant. It reads as follows :‑ "As a net result of my finding on issues above, I grant the plaintiffs 1 to 5 declaration prayed for, to, the extent 1/4 of the suit land other than occupancy tenancy, and declaration prayed for, to the rest of the plaintiffs, except No. 9 to the extent of 3/4th of the suit land. Except for defendants 7 to 11, rest of pro forma defendants shall be joint owners to the extent of 3/4th of the suit land along with plaintiffs. The costs to be borne out by the defendants 12 to

17. Registered Deeds Nos. 351 and 352 are also set aside."

5. Here it may be mentioned that Raja Gauhar Rahman, plaintiff No. 9, had claimed in the plaint that he was a transferee from plaintiffs 1 and 2 and also from defendants 18 to 31 to the extent of half of the suit land. The learned Civil Judge held that the said plaintiff could seek his remedy separately.

6. Abdul Qayum (defendant No. 15), Abdul Ahad (defendant No. 14) and Abdul Hakeem (defendant No. 16) filed an appeal bearing No. 179/13 of 1967. Abdul Hamid (defendant No. 17) filed a separate appeal bearing No. 180/13 of 1967. Both these appeals were heard together and accepted by the learned District Judge, Hazara, on 4‑12‑1967. He held that the plaintiffs had no right to the suit land, inasmuch as, they were not preferential residuary heirs as against the other concerned defendants.

7. The plaintiffs 1 to 8 and defendants 19 to 31 filed a second appeal being R. S. A. No. 53 of 1968 which was accepted by a learned Single Judge of the Peshawar High Court on 16‑5‑1975. The learned Single Judge held, with reference to the relevant evidence on the record, that the plaintiffs had succeeded in proving that they were the relations and heirs of Ghulam Din, the propositus. He set aside the judgment of the learned District Judge and partly decreed the suit of the plaintiffs with this modification that as regards the sale deeds bearing Registrations Nos. 351 and 352, dated 29‑6‑1963 in favour of defendant No. 17 Abdul Hamid, it was held that they were genuine documents with consideration and qua them the suit was dismissed.

8. Abdul Abad (defendant No. 14), Abdul Qayum (defendant No. 15) (now represented by his Legal Representatives) and Abdul Hakeem (defendant No. 16) have come up to this Court in a Civil Petition for Special Leave to Appeal No. 165‑P/1975 against the aforesaid judgment and decree of the High Court. A cross Petition for Special Leave to Appeal No. 168‑P/1975 has been filed by plaintiffs 1 to 8 to challenge the finding with regard to sale deeds Nos. 351 and 352 above mentioned. Their petition is directed mainly against defendant No. 17 Abdul Hamid. This order will deal with both these petitions.

9. The facts of the case are that Ghulam Din, propositus, held two types of land, namely, (a) occupancy land and (b) proprietary land. We shall first take up the case of occupancy land (a) Re : Occupancy land (i) It may be stated that Ghulam Din died issueless in year 1935 leaving a childless widow Mst. Rani, who, as per Mutation No. 145 succeeded to occupancy/proprietary land as a limited owner under custom. (ii) She transferred 1/4th of her share both in occupancy land/proprietary land, on 3‑4‑1945 to contesting defendants Abdul Hakeem and Abdul Qayum (defendants 15 and 16 respectively) which was enforced by them through civil Suit No. 35/1‑(Exh. DW 7/8 is a copy of the relevant plaint)‑instituted on 5‑1‑1951 and decreed on 10‑3‑1952 vide Exh. P. W. 2/5‑

12. This fraction of land is not subject‑matter of the present litigation (because it was told to us by the learned counsel for the parties that the sale to that extent by Mst. Rani could be maintained at that was the share which was received or would have been received by her under Shariat after abolition of the Customary Law). (iii) All the occupancy land was later converted by law into ownership land by conferment of those rights on the occupancy tenants and this change was given effect to vide Mutation No. 115 attested on 8‑12‑1952. (iv) Mat. Rani died on 13‑8‑1953 and after her death the erstwhile occupancy land devolved on Alaf Din and Abdur Rahman (defen dants 12 and 13)‑(the two brothers of Mst. Rani as her heirs)‑as per Mutation No. 193 attested on 4‑11‑1953. (v) Alaf Din and Abdur Rahman (defendants 12 and 13) on their own part transferred/sold that land to Abdul Ahad (defendant No. 14) (petitioner No. I in C. P. S. L. A. No. 165‑P/1975) orally, which transaction was got confirmed through Court in Suit No. 24/1 decided on 15‑3‑1954 (Exh. DW 7/2). Its effect was given in the revenue records through Mutation No. 194 attested on 4‑I1‑1959. (vi) The case of the plaintiff was that after promulgation of the Shariat Act, the land held by a customary widow was to devolve, on the Shariat heirs of last male holder and not on the heirs of the widow. From that point of view it was asserted that Alaf Din and Abdur Rahman, who were neither related to and nor were, heirs of Ghulam Din could not have inherited any part of that land and consequently and sale/transfer made by them to Abdul Ahad (defendant No. 14) petitioner was void. The legal position as hereinbefore stated is not disputed by the learned counsel for Abdul Abad (petitioner). However, the defence of the contesting defendants in this respect was simply two‑fold. Firstly that the plaintiffs are not related to and are not heirs of Ghulam Din propositus and secondly that even otherwise the title of the defendants stands perfected through a suit bearing No. 322/1 decided on 10‑11‑1954 (Exh. P.W'. 5/7) (which was given effect to in Mutation No. 367 attested on 22‑8‑1961 (Exh. P. W. 5/5). This suit was filed by certain defendants to be mentioned later against the present contesting defendants 12 to 16 and ended with a compromise whereby they settled the entire occupancy land on Abdul Ahad (defendant No. 14) Details of proprietary land, will be mentioned later. As both the points and objections raised by the contesting defendants are the subject matter of a strong contest between the parties, we will advert to them later. (b) Re : Proprietary land

10. Now taking up the proprietary land, its position is as follows (a) Jamal Din present defendant No. 7 sold his 1/3rd share in this land to Abdul Ahad (defendant No. 14) by sale deed dated 11‑10‑1954 registered on 12‑10‑1954 Exh. DW 3/1. Abdul Ahad got his aforesaid title confirmed in this land by Civil Suit No. 515/1 decreed on 6‑11‑1954 (Exh. PW 8/3). (b) Habibullah predecessor‑in‑interest of the present defendants 8 to 11 sold 1/3rd of his share also to Abdul Ahad (defendant No. 14) through sale deed dated 13‑10‑1954. This was similarly confirmed in Suit No. 516/1 decided on 6-11‑1954 vide Exh. D.W. 7/4. (c) Plaintiffs 1 to 6 sold their shares vide sale deed bearing Registration No. 351 dated 26‑11‑1952 (Exh. P.W. 5/9) to Abdul Hameed, defendant No. 17. (d) Plaintiff No. 8 (Fazal Din) also sold his share through sale deed bearing No, 352 dated 27‑11‑1962 (Exh. PW 5/10) to Abdul Hameed (defendant No. 17). (e) Defendants I to 4, 6, 7 and Habibullah, predecessor‑in‑interest of defendants 8 to 12 filed a civil suit against defendants Nos. 12 to 16 (being Civil Suit No. 322/1) which ended in a compromise decree dated 10‑11‑1954 (Exh. P. W. 5/7) given effect to in Mutan ..No. 367 attested can 22‑8‑1961. By this decree land was distributed as follows: 1/4 .. to present defendants 1 to 4 and 6 ; 1/4 .. to Abdul Qayum and Abdul Hakeem (defendants 13 and 16) respectively and 1/2 .to present defendant No. 14 (Abdul Ahad). This transaction has been referred to earlier also while giving details of erstwhile ‑oxcupancy land which also was settled under the same decree as tnentioned therein.

11. The p4untiffs in their suit challenged, again to clarify (i) the decree Exh. P. W. 5/7 dated I0-11‑1954 in Suit No. 322/1 (Item No. `e' above); (ii) the two sale deeds Nos. 351 and 352 mentioned in Items Nos. `c' and `d' above. As the decree Exh. P. W. 5/7 covered the entire land of the contesting defendants, therefore, by challenging that decree obviously the earlier entitlement of the respective defendants vide Exh. D. W. 8/3 and Exh. D. W. 7/4 (items `a' and `b' above) also got involved and became a subject of contest. This completes the litigation history of the case.

12. Coming to the merits of the case, learned counsel for petitioners in Civil Petition No. 165/P/1975, argued that the plaintiffs concerned are neither connected with and nor are they the heirs of the propositus, Ghulam Din. The contention has no merit. The very nature of the question raised with show that it depends merely on the appreciation of the relevant evidence will not, ordinarily be a fit subject for grant of special leave unless the learned counsel is able to point out any omission or misread in of record or application of wrong law or principles in its appreciation. The High, Court in this respect referred to a pedigree table made in Mutation ‑No. 233 (Exb. P. W. 1/2) attested on 27‑9‑1916 regarding in heritance of Gaman who had died issueless and was uncle's son of Ghulam Din the present gropositus). In the proceedings of that mutation, Ghulam Din appeared and gave a pedigree table under his own thumb impression which is contained in that mutation and on the basis thereof Ghuiam Din was given 1/4th share in the land involved therein. It may be stated that that was a different land in toe same village where the present land is situate but this instance as produced to show recognition of the relationship of the predecea of the plaintiffs with their common ancestor Rehm Din. This mutation, we were told, was never challenged by any party anywhere. The aforesaid pedigree‑table ryas as follows :

[See next page] PAGE 597 MISSED (table)

13. The aforesaid pedigree table shows that one Reham Din had six sons, namely, (1.) Nazir (who died issueless) ; (2) Amir, (3) Noor Din, (4) Azeem Din, (5) Azam Din ; and (6) Muhammad Saleem. The propositus was Gaman issueless son of Muhammad Saleem. As the line of Muhammad Saleem became extinct with the death of his aforesaid only son and also because the sixth son of Reham Din namely Nazir had also died issueless therefore the land devolved on the progeny of the remaining four sons of Reham Din namely, Azam Din, Azeem Din, Noor Din and Amir. Though at the moment the effort is to oust the progeny of the remaining three heirs by pleading that those of their ancestors who had B inherited land in this mutation were not the descendants of Reham Din and that the progeny of Azeem Din alone was the surviving progeny of Reham Din, but in the aforesaid mutation the shares given to the various heirs were as follows :‑

1. Ghulam Din (present propositus) . . 1 share

2. Abdul Ghafoor, Sons of Kala in equal Abdul Karim, I share . 1/3 Said Ahmad

3. Abdullah son of Azeem . 1/3

4. Jamal Din, ( Sons of Faizullah in equal Imam Din share 1/3

5. Gaman son of Noor Din . 1/3

6. Kala, t Son of Imam Din in equal ) . . 1 share Walya share . 1/3

7. Aalman, Son of Jeevan in equal Fajja share .. 1/3

8. Bakhtawar son of Amir ... 1/3 1 share

9. Allah Din son of Hastam

14. This shows that the progeny of Azeem Din got only 1/4th share (and not the whole of the land), though now the case of the petitioners is that only that progeny and not the other three progenies had survived o were connected with Reham Din. However, it is further to be noticed that in that mutation there was no dispute of one progeny overriding the other and all the four progenies inherited in equal share of 1/4th each, and no was one progency disputing the relationship of the other progeny with the common ancestor Reham Din. To be more precise in the instant case we are, to start with, therefore, concerned firstly with the progeny of Gaman, viz., and plaintiffs 4, 5, 6 (sons) and plaintiff No. 7 (daughter) of Allah Din son of Gaman (who i.e. Gaman has given a share in the above mutation). Secondly, we are concerned with plaintiff No. 3, Walya son of Imam Din (who i.e. Walya wag given share in this mutation). Thirdly, we are concerned with plaintiff No. 1 Rosban Difl and plaintiff No. 2 Sosan Din sons of Fajja (who i.e. Fajja was given a share in the above mutation) and fourthly we are concerned with Fazal Din, plaintiff No. 8, son of Bakhtawar (who, Le. Bakhtawar was given a share in the above mutation): The pedigree counted from downward‑up to Gaman of plaintiffs 4 to 7 is not disputed. Similarly the fact that plaintiff No. 3 Walya is son of Imam Din is not disputed and again the fact that plaintiffs 1 and 2 are sons of Fajja is not in con troversy and nor is there any dispute about the fact that Fazal Din plaintiff No. 8 is son of Bathtawar. The only dispute thus is whether Gaman, Walya Faba and Bakhtawar are connected with Reham Din or not.

15. That they are connected with Reham Din is, however, evident from the above mutation, because, it was due to that relationship that they all got share in the inheritance of Gaman son of Muhammad Saleem as collaterals. The learned District Judge, in this respect, however, observed that neither the mutation itself nor the statement of Ghulam Din contained therein could be taken as a proof of relationship on those lines. The High Court, it may be mentioned, did not agree with that view and considered the above mutation and the pedigree contained therein as a relevant piece of evidence proving that the persons who received share therein (and who admittedly were predecessors of the present plaintiffs 1 to 8) were collaterals of Ghulam Din (propositus) through the common ancestor Reham Din. We are o F the opinion that the view taken by the High Court was correct and mutation Exh. P. W. 2 had, in the circumstances of this case, great evidentiary value and could not have been summarily brushed aside as was done by the learned District Judge.

16. A perusal of that mutation shows that the land involved therein was maurusi i.e. Occupancy land and when Gaman son of Muhammad Saleem died issueless, the owners/proprietors Mir Zaman and Samundar Khan pleaded that the occupancy tenancy not being ancestral but self‑acquired of Gaman, came to an end and could not devolve upon collaterals of Gaman, but would revert to and vest in malikans, i.e. the owners, free of any occupancy which allegedly on the death of Gaman became extinct. The history of the land was gone into and it was held that it was an ancestral occupancy land and, therefore, could devolve upon collaterals of Gaman. At that juncture and in that context, the occupancy tenants came forward (parti cularly Gaman son of Noor Din and the preFent propositus Ghulam Din son of Azam Din) to safeguard their rights. The mutation proceeding were conducted in a public assembly and in that connection Ghulam Din son of Azam Din along with others personally appeared before the revenue officer and gave a pedigree table under his own thumb‑impression. It was on this pedigree‑table that the land wa then mutated in their names as detailed above. P. W. 1 Abdul Jalil, Sadarl Office Kanungo, appeared in this case and produced the original mutation 233 and narrated the pedigree contained therein. Its copy was retained on record as Exb. P. W. 1/2. He also stated that this mutation was given effect to and incorporated in jamabandi of village Mera Tarela for the year 1917‑18 copy whereof was produced as Exh. P. Ws. 1/3.

17. When a mutation gets incorporated in jamabandi (i.e. annual record) then as held in Bhagwan Das v. Mangal Said (A I R 1929 Lah. 93), jamabandi carries a presumption of truth and the learned District Judge in the circumstances was not justified to ignore the said jamabandi and its corresponding supporting mutation. , The learned District Judge in this respect got involved into the quibble whether the aforesaid statement of Ghulam Din was admissible or not under section 32 (5) and section 32(6) of the Evidence Act but we need not enter into that controversy because the case looked at from the dimensions and the point of view mentioned in this order is otherwise quite clear though we may observe that the law in this behalf, speaking with respect, seems to be correctly interpreted by Supreme Court of India in Dolgobinda Paricha v. Nimal Charan Misra acrd others (AIR 1959 S C 914), where in somewhat similar circumstances it was held that earlier statements of present kind made at a time when there was no dispute regarding the neareness or remotness of the collateral heirs of a propositus but only simple factum of collateralship then the earlier statements showing collateral ships were not inadmissible in evidence later on when question of actual succession and heirs was to be resolved. To the same strain is Mst. Biro v. Alma Ram and others (AIR 1937SC101) where at pages 102, 103 after making a pedigree of the parties involved in that case, it was held that a deposition as to a long pedigree table made by one of the members of the family in 1859 was admissible and of great value in a later judicial case.

18. The Sadar Office Kanungo also traced the history of the land presen tly in dispute and deposed from the record brought by him in Court that prior to the bandobast of 1948‑49 it was located in two mahals (i.e. villages) namely, village Rebala (also written as Riala) and village Maira Trela, but by the relevant mutation No. 1314 stated on 31‑2‑1948 it was included in village Rehala. He also produced Exh. P. W. I/2 naqsha suratdehi 1872 which was an official record prepared during the survey of the villages of Haza district and under section 35 of the Evidence Act entries made there were to be presumed to be correct when read with section 114 of the said Act. This document also contains a pedigree and shown Reham Din as father of his six sons above‑mentioned. In this pedigree again a statement is attributed to Amir son of Reham Din to the effect that they were six brothers. This lends further support to the pedigree made in Exh P. W. 1/2.

19. At this place, it would not be without interest to make reference to Mian Glrulam Rasul Khan v. The Secretary, State for India (AIR 1925 P C 170) where the question involved was regarding tribe/got of a person. In revenue records of 1852 the got of the predecessor‑in‑interest of the plaintiff was given as Mohal but that was disregarded on the ground that "there is no proof that whoever fist caused this entry to be made had any real title to the use of the term Mohal "That was the only link which the appellate Court in that case found to be absent from the evidence necessary to prove the plaintiff s case. Their Lordships of the Privy Council at page 172. columns I and II observed that "their Lordships cannot share the view of the Appellate Court that evidence of this character, taken from public records for a series of years since 1852 and recorded in accordance with the requirements of the law, can in a pedigree case be disregarded for the reason stated by the Appellate Court. No evidence is given and no suggestion is made that such entries were false or that there was any existing reason why deliberately false entries should have been made. In such a case as the present, statements in public documents are receivable to prove the facts stated on the general grounds that they were made by the authorised agents of the public in the course of official duty and respecting facts which were of public interest or required to be recorded for the benefit of the community (Taylor, Law of Evidence, 10th Edn., S. 1591). In many cases indeed, in nearly all cases, after a lapse of years it would be impossible to give evidence that the statements contained in such documents were in fact true, and it is for this reason that such an exception is made to the rule of hearsay evidence. Their Lordships being opinion that the plaintiff has proved that he is entitled to the description of Mohal, it follows from the facts found by the appellate Court and already referred to that the plaintiff is a Rajput and is entitled to the relief claimed in this action. Their Lordships will therefore humbly advise His Majesty that this appeal should be allowed with costs here and in the Courts below and that the decree of the subordinate Judge should be restored".

20. This enunciation of law will apply to copy of swat dehi (1812) Exh . P. W. 1/4 which shows that Reham Din had six sons (whose names have already been mentioned therein). This pedigree also refers to a statement of Amir (son of Rehman Din) and this gives further support to pedigree made in mutation Exh. P. W. 1/2 which, in its own turn, was incorporated in the jamabandi. Here it may be pointed out that Surat dehi is generally survey map and contains information relating to the foundation of each village an the persons who inhabited it, founded it or made its land cultivable, together with the details and particulars of the tenants or persons tilling the same. The learned District Judge had ignored Exh. P. W. 1/4 relying upon Abdul Jabar an others v. Azizul Haq and another (A I R 1942 Pesh. 35) which referred to Jagdeo Narain Singh and others v. Baldeo Singh and others (AIR 1922 P C 272) on the ground that Surat dehi was not a part of record‑of‑rights and could not be relied upon. The cases referred to by the learned District Judge were misconstrued and they nowhere laid down that Surat dehi was not admissible in evidence, and all that was stated was that when there was evidence to contradict the statements contained or entries made in surat dehi, only then the same could not be ignored. Attention is invited to Secretary of State for India v. Maharaja Birendra Kishore Manikya and others (AIR1916PC141) where it was laid down that just weight has to be given to the accuracy of survey maps and that they are not conclusive but in the absence of any evidence to the contrary they will be presumed to be correct. I the instant case, nothing has been brought on record to rebut the evidential value of the pedigree made or statements contained in Surat dehi or in the above‑mentioned mutation and, therefore, its evidentiary value was in no way diminished.

21. The third document relevant in this respect is Exh. D/4 which is a cop of Misel moqadama tansekh haquq mazarah 1873" and contains a statement of Gaman son of Muhammad Saleem recorded by an officer, attested by another office and a formal order of some other officer, holding him as an occupancy tenant. The learned District Judge had ignored this document also, because, according to him it had no evidentiary value. This not correct. The document N aforesaid, under section 35, was relevant and carried a presumption of correct ness under section 114 of the Evidence Act. The document proved two things namely, that occupancy tenancy in the hands of Gaman son of Muhammad Saleem was ancestral and that Gaman was son of Muhammad Saleem as already shown in the pedigree given by Ghulam Din in mutation Exh. P. W. , Exh. D/3 which is a document of same description similarly shows Azam Din and Azeem Din as sons of Reham Din.

22. As against all this nobody appeared as a witness either from the panel of defendants or otherwise to show any different pedigree of the plaintiffs and other concerned defendants. Reliance solely appears to have been placed simply on documentary evidence in the form of Exh. D/6 Naqal tansekh Mazarah of village Langra 1872 which shows Amir an Nazir as two sons of Reham Din. This document, so far as it is relevant, will at least prove that Amir was son of Rehman Din and as we have above shown that his son (i.e son of Amir) Bakhtawar got a share in mutation Exh. P. W. 1/2 and Fazal Din plaintiff No. 8 (which fact in not disputed is son of that Bakhtawar. In this way, this document rather supports t cast that Rehman Din was the common ancestor of the concerned plaintiff The other documents is Exh. D/8 of the same description of village Rehalal for year 1875 which shows that Reharn Din had a son Azam Din. If this document is read with Exh. P. W. 1/2, it will further prove that Ghulam Din, the propositus of this case, was his son. To the same strain is Exh. D/5. The argument raised was that in all the aforesaid documents there was n mention of all the six sons of Reham Din at one and the same place therefor those who were not shown in those documents should not be considered as heirs of sons of Reham Din. Te explanation is not far to seek. Muhammad Akram Khan (P. W. 6) explained that Muhammad Saleem used to reside in village Maira Palan, Azeem in Mohar Kalan, Amir and Nazi in village Langrd Azam Din, in village Rehala and Noor Din in Jandomera. In the circumstances, omission of the names of certain persons at different times or in documents of different places was but natural. Moreover, there is no legal reason or any other justification to ignore Exh. P. W. 1/2 (mutation and pedigree contained therein) and Exh. P. W. 1/4 which shows very clearly Reham Din as common ancestor who had six sons with the names above‑mentioned. Exh. P. W. 1/4 which is very explicit on the subject and was prepared in official course of duties of the officers concerned, who had referred to a statement of Amir Din son of Raham Din in that respect (and indicates the names of those six brothers). This document was prepared far earlier in 1872 prior to the mutation of 27‑2‑1916 when there was no dispute regarding the pedigree of Reham Din or about the names and parentage of his six sons mentioned therein. Here it may be men tioned that the documents produced by the defendants were incomplete and the mere fact that in those documents the names of some of the sons of Reham Din did not appear would not detract anything from the authenticity of the documents prepared far earlier thereto. In our opinion it is too late in the day to deny the relationship or connection of progenies of those lines who received equal share of 1/4th each with the fourth line of Azeem Din, and to say that those who also earlier received the shares in year, 1916 were not connected with Reham Din.

23. Though we have dealt with the question of the relationship of the plaintiffs and concerned defendants in the form and the manner of arguments which were presented before us, but there is another simpler way to attend to the same, and that is, that the present propositus Ghulam Din son of Azam Din (as mutation Exh. P. W. 1/2 shows) also appeared in those mutation proceedings and the pedigree reproduced above was made in his present and was endorsed by him and acted upon in various ways viz. by incorporation in the jamabandi and by giving share in accordance with the same. This admission of Ghulam Din, whose successor‑in‑interest, both sides viz: the plaintiffs and the concerned defendants claim to be, is binding on all of them and none of them can be permitted to take exception to the same. This is a very straightforward and direct and simple aspect of the case and in the face of this direct evidence, the matter should not have been unneces sarily involved. It is probably for this reason that none of the defendants in this case appeared in the witness‑box to oppose the connection of the progenies of Nur Din and Amir. None of the progenies of Azeem Din similarly appeared to deny the connection of, the other progenies with Reham Din and obviously how could any of them say so when all of them claim inheritance to Ghulam Din, who himself in mutation No. P. W. 1/2 conceded the existence of those progenies. In the face of this special feature of the case any exercise on the part of the learned counsel for the petitioners (who are only subsequent purchasers) to pursuade us to hold that Reham Din was not the common ancestor of all the four progenies was a sheer exercise in futility.

24. When confronted with the above situation learned counsel for the petitioners in Civil Petition for Special Leave to Appeal No. 165‑P/1975 submitted that in any case the plaintiffs or other defendants mentioned in the plaint were not nearer in degree to the propositus as compared with those defendants from whom the subsequent purchasers petitioners had been purchasing the land as detailed earlier. However, the learned counsel could not establish his plea before us. The High Court had drawn a detailed pedigree table towards the end of its judgment showing the position of each heir whose share it also specifically worked out and fixed. We asked the learned counsel to demonstrate before us, the plea of nearness or remoteness of any one heir against the other as being different from his position shown by the High Court. The learned counsel could not do so. The point raised therefore remains unsubstantiated and is hereby repelled though here too we may observe that the four progenies having 1/4th share each, will pass it on to its own line and from that point of view the question of nearness or remoteness of one progeny with the other even otherwise does not arise, especially when within one progeny there is no dispute of any one descendent overriding the other.

25. The next point argued was that the title of the subsequent pur chasers/petitioners in Civil Petition for Special Leave to Appeal No. 165‑P/1975 stands perfected due to the decree dated 10‑11‑1954 in suit bearing No. 322/1 and consequent Mutation No. 367/1 dated 22‑8‑1961 which settled the land and shares mentioned therein in the manner indicated earlier in paragraph 10(e) of this judgment. It may be mentioned that that was a compromise decree and neither the plaintiffs and nor defendants to whom declaratory decree has been given by the High Court had signed that compromise and nor were they obviously bound by the same. The High Court in the circumstances was justified in not accepting the aforesaid compromise as affecting the shares of those who had not signed the same.

26. Another point argued was that the High Court has not given effect to the sales made by those of the plaintiffs and' defendants who had sold their shares to the petitioners, and has again shown these shares in the judgment as being of the relevant vendors, which according to the learned counsel should have been shown as belonging to the petitioners (i.e. the vendees). In this respect he referred to the transactions of defendants 1 to 11 and Exh. D. W. 5/7, Exh. D. W. 7/3 and Exh. D. W. 7/4 and submitted that the same have not been taken into consideration. The contention has no merit. The judgment of the High Court is quite clear as to which transaction and which decree to which extent and qua which of the plaintiffs and defendants it has set aside. Learned counsel has not been able to point out any mistake in the High Court order in that respect in that form, with the result that the plea raised just in an abstract cannot be accepted.

27. The result is that Civil Petition for Special Leave to Appeal No. 165‑P/1975 has no merit and is dismissed.

28. Taking up Civil Petition for Special Leave to Appeal No. 168‑P/1975 it is barred by 32 days. The petitioners have filed an application for condona tion of delay pleading that though the judgment in the case was announced to their knowledge on 16‑5‑1975 but the decree sheet was prepared on 26‑6‑1975, copy whereof was issued to them on 16‑7‑1975. It has been submitted that if the period of limitation is reckoned from the date of decree then the petition is within time. It is further submitted that the petitioners were under a bona fide impression that the petition for special leave to appeal could not be filed without the decree sheet of the High Court. According to Rule 6‑D of Order XII of the Supreme Court Rules (1956), a petition of appeal should be accompanied by certified copies of the judgment and decree or order appealed against. From that point of view no serious objection on ground of limitation can be raised in this petition.

29. However, on merits the plaintiffs/petitioners concerned have no case. They have claimed a relief that the sale deed bearing registration No. 351 dated 26‑11‑1952 whereby plaintiffs 1 to 6 sold their shares to Abdul Hameed (defendant No. 17) was illegal, fraudulent and without consideration. A similar relief was claimed by plaintiff No. 8 who had by sale deed bearing registration No. 357 dated 27‑1 t‑1962 sold his share to Abdul Hameed (defendant No. 17). The High Court dismissed the suit qua, these two sale deeds on the ground that none of the plaintiffs concerned had appeared in the witness‑box to support their pleas, The reason given by the High Court is unexceptionable and calls for no interference because it is well settled that if in such cases a plaintiff does not appear to give evidence regarding the facts on the basis of which he wants to avoid a transaction, the transaction cannot be set aside. Learned counsel for the petitioners was unable to show any infirmity in the view taken by the High Court on the subject. No other point was raised in this petition before us.

30. The result is that this petition also fails and is dismissed. S. A. H Appeal dismissed.