P L D 1959 (W (PLP)

S. Nasiruddin for Respondent. Date of hearing : 29th September 1958. This second appeal has been filed against the judgment of Mr. Kadar Nawaz S. Awan, District Judge, Hyderabad in Civil Appeal No. 4 of 1957. The dispute in this appeal relates to the partition of the respondent's ‑0‑8‑0 share in the building standing on two plots of land bearing C. S. Nos. 1956 and 1964 situated in Ward ` C ' in the town of Hyderabad. This property originally belonged in equal shares to Imam Baksh and Ali Baksh. On their death Imam Baksh's share devolved on his widow, Mst. Bhawal and Ali Baksh's share devolved on his widow Mst. Bhaiti. Mst. Bhawal gifted her eight annas share in the said property to appellant Ghulam Hussain under a registered deed dated 8‑9‑1910. Mst. Bhaiti also gifted her share to her grandson Haji Muhammad Baksh under a registered deed dated 6‑12‑1915, Haji Muhammad Baksh later oil gifted his share to his three paternal aunts, namely, Mst. Phapul, Mst. Sabhai and .Mst. Asat. r19st. Phapul and Mst. Asat later on died and their share was inherited by Mst. Sabhai in the property in dispute. Mst. Subhai also died and half of the property would ordinarily have fallen to the share of Muhammad Baksh her real brother. But admittedly the gentleman is not traceable for the last 30 years and in law will be presumed to be dead. Respondent Mst. Hoor being his daughter has therefore inherited the property left by Mst. Subhai and is entitled to half share in the property in dispute. Both the Courts below have come to the conclusion that respondent is the legitimate heir of Mst. Sabhai and entitled to half share in the property. So far as this finding of fact is concerned, the learned counsel for the appellant has not been able to satisfy me that it is not based on the evidence produced on the record. The appellant filed a suit known as Suit No. 350 of 1924 in the Sub‑Judge Court at Hyderabad in respect of the property in dispute against Mst. Phapul and her two sisters and admitted them to be the owner of the said property to the extent of half share. He also admitted in his deposition in Civil Suit No. 178 of 1938 in the Sub‑Civil Court of Hyderabad filed by the respondent against Mst, Phapul and others that the respon dent was the daughter of Muhammad Bakltsh and that Muhammad Bakhsh had disappeared for the last 20 years. It is however urged before me that P. W. Jumo is the heir of Mst. Sabhai. The learned counsel has referred me to his deposition. But this witness has neither claimed nor in law he is entitled to inherit it. The deceased was his maternal aunt while respondent is her niece from the paternal side and there is no doubt that under the Muhammadan Law the respondent will be her only heir. In this state of evidence I see no reason to differ from the view taken by both the Courts below that respondent succeeded to the share and right of Mst. Sabhai in the property in dispute. Mr. Mulraj, the learned counsel for the appellant however has attacked the judgment of the Courts below also on the ground that as the respondent did not disclose in the plaint the circum stances and facts under which she inherited the property, the plaint should have been rejected for failure to disclose a cause of action, that the Sub‑Judge should not have allowed evidence to be led on the question of the title of the respondent, that the suit was not maintainable as the property had already been parti tioned between Mst. B hawal and Mst. Bhaiti and lastly that the respondent was not in joint possession of the property in dispute. There is no force in these contentions. The objection about the defective nature of the pleading was not taken before the trial Court. This contention was, for the first time, raised before the learned District Judge in appeal and I am in complete agree ment with the learned Judge that as both the parties led evidence on the question of title and the appellant has not been in any way prejudiced, such objection cannot be considered as fatal at the appellate stage. Besides in mofussil Court pleadings am still in their infancy and they are still the same confused mass of vague and indefinite statement of facts as they were on the advent of British rule and are drafted in a most crude an inartistic manner. In these circumstances an allowance must be made for the most inaccurate mode of drafting prevalent in the Moffussil Courts and it would be most unsafe to look at a plaint in these Courts in the same manner as in the English Courts. I am therefore not inclined to follow the view expressed by the Appellate Courts in Philipps v. Philipps and others ((1878 4 Q B 127)). The principle enunciated in this decision cannot be applied to the pleadings in the Mofussil Court at Hyderabad. Their Lordships of the Privy Council adverted to this aspect of the Indian pleading in a case Mating Kyi Oh and another v. Ma Thet Pon (A I R 1926 P C 29). Their Lordship observed " It is apparent that one of the crucial facts in this matter is, Was U. Bauk an heir of U. Laik or not ? Their Lordships recognize that in a case from a District Court in Burma plead ings, and, indeed, the whole conduct of the case, can scarcely be scrutinized with the strictness with which a case would be scrutinized in this country. That allowances must be made is abundantly clear from the history of the proceedings in this case, because it is apparent when the pleadings are looked at, that really both the plaintiff and the defendants floandered as to their real case, and that the Court quite rightly took upon itself to straighten out the whole matter and try to discover what the real question between the parties was." The observations are a complete answer to the question raised by the appellant. I also find no force in the other conten tion of the appellant that the learned trial Judge should not have allowed the respondent to lead evidence on the question of title. The appellant did not raise any such general objection before the trial Judge. In fact on the production of the documentary evi dence on this question, the appellant's counsel got time and thereafter without raising any objection to their admissibility cross‑examined the respondent and her witnesses in this respect. The learned trial Court was perfectly justified to allow both oral and documentary evidence as there was a specific issue about the share of the respondent in the property in dispute. Issue No. 2 was as follows :‑ " Issue No. 2.‑What is the name of plaintiff's father and what is her share in suit property ?" and I am at a loss to appreciate how under such comprehensive issue the evidence produced by the respondent was not admissible. It is urged that the documentary proof about the gifts to the various parties was for the first time produced at the trial, the appellant had no notice of them and was taken by surprise and the learned trial Judge should have suo motu disallowed these documents to be proved. I find no warrant for this broad proposition in the Civil Procedure Code. On the contrary it appears to me that even if an objection is taken at the trial and there is no doubt about genuineness of the documents, the Subordinate Courts had full discretion to allow these documents to be proved on payment of costs. But in this case neither an objection was taken nor the appellant was in any way prejudiced as he himself admitted Mst. Phapul and her sister as owner of half share in the property in dispute and also admitted the respondent as daughter of Muhammad Bakhsh in the several previous litiga tions in the Civil Court about the property in dispute. The last contention of the learned counsel for the appellant that the suit should have been dismissed as the property had already been partitioned between Mst. Bhawal and Mst. Bhaiti on the death of Imam Bakhsh and Ali Bakhsh is also devoid of force. There is ample evidence on the record to establish that the property in dispute was never partitioned by metes and bounds between the parties. The gifts by the two ladies, one in favour of appellant and the other in favour of Haji Muhammad Bakhsh were of half share in the property in dispute. The recitals in these documents do not show anything further than this that the parties for convenience sake were in possession of separate portion of the property. According to well established principle of law this cannot be taken to be a partition by metes and bounds. In fact the record of rights shows that till the suit was filed, the property in dispute was treated as joint property. The oral evidence on this question is also reliable. I therefore see no ground to differ from the concurrent finding of facts of the Courts below on this question. The learned counsel has failed to satisfy me that there was any reliable evidence to show that the respondent or her predecessor‑in-interest was ousted from the possession of the property in dispute to the exclusion of appellant. On the contrary the appellant's admission is that Muhammad Bakhsh was residing in this property. The respondent was born in it. It is therefore abundantly clear that the respondent in the absence of any proof of adverse possession of the appellant, being co‑owner, will be treated to be in joint possession of the property in dispute. On a careful examination of the facts of this appeal I am clearly of the view that the decision of the Court below is in accordance with law. For these reasons the appeal is dismissed with costs. A. H. Appeal dismissed.