PLD 1967 SUPREME COURT 55 (PLP)

S. A. RAHMAN, J.‑This is a certificated Appeal an order, passed by the High Court of West Pakistan in first appeal in a suit for a declaration, brought by the agents to the effect that the gift of land, measuring 310 kanals and 9 marlas, specified in plaint by the first defendant, Karam Dad, in favour of the second defendant, Mst. Nawab Bibi, by a registered deed, dated the. 12th May 1952, would be ineffective against the plaintiffs reversionary rights after the first defendant. The plaintiff died during the pendency of the litigation and was replaced by his legal representatives. The second defendant Mst. Nawab Bibi is the appellant before us, as the High Court has reversed the decision of the trial edge who had dismissed the suit. Certificate for appeal to this Court eras granted, as the judgment of the High Court was one of variance, and the subject matter of the appeal was valued at more than Rs. 15,000. The suit‑land is situate in village Kirto, Tehsil Shahdara, District Sheikhupura. The plaintiff's case was that the property gifted by the first defendant, Karam Dad, in favour of the second defendant, Mst. Nawab Bibi, was ancestral qua him, that he was a collateral of Karam Dad and as such, entitle, under custom which governed the case, to challenge the alienation and that the gift was without any legal necessity and consequently not binding on him. The suit was resisted, on behalf of the defendants, who denied the relationship of the plaintiff with Karam Dad as well as the ancestral character of the land qua him. The pleadings of the parties are reflected in the following issues, framed by the trial Judge:‑‑ (1) Is the plaintiff a collateral of Karam Dad, defendant, and in what degree? (2) is the land in dispute ancestral qua the plaintiff? (3) If the above issues or any one of them was not proved Whether the plaintiff was entitled to object to the gift in dispute? (4) Was the gift in dispute made on account of the services rendered and what is its effect? (5) Relief. The learned trial Judge recorded these that the plaintiff was a collateral of the donor, Karam Dad, and that the latter was not entitled under custom to make a gift of the laud in suit, in favour of the second defendant who was a stranger to the family. It may be mentioned that Karam Dad claimed that he had treated the donee as a daughter as she had rendered services to him and had been living in his, house. He had also arranged for her marriage. The trial Judge, however, went on to hold that the plaintiff had failed to prove that the land in dispute was ancestral qua him, He, therefore, dismissed the suit with costs. The learned Judges of the High Court upheld the finding of the trial Judge that the plaintiff was a collateral of Karam Dad and, therefore, entitled under custom to challenge the impugned alienation. They also arrived at the conclusion, after considering the entries in the revenue records, concerning the land in dispute, that the plaintiff had succeeded in establishing that it was ancestral qua him. Consequently, the appeal was allowed and a declaration granted to the plaintiff, to the effect that the gift made by Karam Dad to Mst. Nawab Bibi would not effect the reversionary rights of the plaintiff or the other reversioner after the death of Karam Dad. It may be observed that by the time this order came to be passed, the plaintiff had died but the learned judges did not think it necessary to ask his legal representatives to convert the suit into one for possession at this late stage. Mr. Ghias Muhammad, the learned counsel for the appellant, attempted to assail the concurrent findings of the Courts below on the point of relationship of the plaintiff to the donor. He pointed out that the plaintiff's claim of collateralship. with Karam Dad rested principally on a copy of a pedigree‑table found on the fard patwar of the 1865 Settlement record, whose authenticity was doubtful. It appears that the corresponding copy of the Settlement record of 1865, retained in the office, did not include this pedigree‑table. The Courts below have, however, taken the view that the document in question had come from proper custody and had formed part of the official record. To its admission into evidence, therefore, no legal exception could be taken. Mr. Ghias Muhammad put forward the argument that doubt was thrown upon the authenticity of this pedigree‑table by two statements made by two Revenue officials in some previous cases, not inter parties, in the years 1925 and 1939. The Courts below have, however, held that the two statements relied upon, were not admissible in evidence under any provision of law, and that they could only have been utilized to contradict or confirm the statements of the deponents, if they had been called into the witness‑box in this case. We see no reason to dissent from this view and learned counsel has been unable to cite any authority which would enable such statements, made by witnesses in a litigation between third parties, as substantive evidence in this' case, without calling the makers of those statements as witnesses herein. It is not even known whether those Revenue officials are dead or alive. These statements were not, even formally tendered in evidence in the trial Court. In these circumstances, we see no ground for disturbing the concurrent findings of the Courts below that the plaintiff was proved to be a collateral of Karam Dad and that, therefore, he had a locus standi to sue. The main question, however, that falls for determination in this appeal is whether the High Court were right in holding that the plaintiff had proved the suit‑land to be ancestral qua him. It is well settled that the onus rests squarely on the plaintiff who alleges the ancestral character of the property qua him to establish that fact. For this purpose it had to be proved that the property had been held by the common ancestor of the plaintiff and the donor, and that it had descended from him to the present holder in succession from generation to generation, by inheritance alone. The mere mention of the name of the common ancestor in the pedigree‑table of the earliest Settlement is no proof of the fact that every piece of land held by his descendants, howsoever low, was originally held by the common ancestor. It should further be established that the descendants of the common ancestor held the land in ancestral shares and that the land, occupied at the time of the dispute by the proprietors thereof, had devolved upon them by inheritance. Reference may be made in this connection, inter alia, to two judgments of the Privy Council, reported as Mst. Subhani and others v. Nawab and others (A I R 1941 P C 21) and Imam Din v. Mst. Said Bibi (A I R 1949 P C 87). There is no direct evidence available in the present case, showing that Ghulam, the common ancestor of the plaintiff and Karam Dad, had ever held the land. Village Kirto, in which the land is situate, was originally a part of the Sialkot District. Later, it seems to have been transferred, as a part of the Shahdara Tehsil, to the Sheikhupura District. The earliest Settlement took place in Sialkot District in the year 1865. The pedigree‑table, prepared at the Settlement of 1865, includes the name of Ghulam and he is shown as having three sons, Suba, Budha and Ladha, Budha is said to have died issueless later, but he was apparently alive when that pedigree‑table was prepared. Suba and Ladha hid Umar and Buta as their sons, respectively, and their names too figure in this pedigree‑table. The pedigree is taken further down by a document, prepared in the 1892‑93 Settlement. Buta left two sons, Chahra and Chuhar the plaintiff, Nawab, in this case, was the son of Chahra. Umar, son of Suba, had also two sons, Karam Dad, the first defendant and one, Sharaf Din. The learned Judges of the High Court relied on the entries made in the excerpts, relating to the land in suit, prepared by Munshi Abdur Rahman, Moharrir Patwari, Sheikhupura (Exh. P. W. 2/1) for upholding the plaintiff's claim that the property was ancestral qua him. The excerpt shows that in the Settlement record for, the year 1865, Buta son of Ladha, Umar son of Suba, the grandsons of Ghulam, and Mst. Sahibzadi, wife of Budha, son of Ghulam, were entered as owners of khata No. 21 of that Settlement, in equal shares,' to the extent of one‑third of this khata. The remaining two‑thirds were owned by different persons, not belonging to this family. There are certain other proprietary khatas, included in the 1865 record and some khatas are shown as shamilat. Proprietary. khata No. 21. of that Settlement is the only khata in which the descendants of Ghulam owned a one‑third share; in equal shares. In no other proprietary khata they are shown as having any share. Khatas 73 and 95 are recorded as village shamilat in which, of course, all the proprietors of the village, including the family of Ghulam, would have a share. Khata No. 24 is the proprietary shamilat, relating to khatas 21 and 23 only. In this shamilat too, the family of Ghulam might conceivably have a share. Taking the 1865 entry of khata No. 21 as their starting point, the learned Judges of the High Court went on to consider the entries in the Settlement record of 189293, which showed Hakam, son of Chuhar, son of Buta, and Umar son of Suba, as owners of certain lands in equal shares. Prom this fact it was inferred that on the death of Mst. Sahibzadi, her share was divided equally between the other branches of Ghulam's descendants, by way of inheritance. No evidence was, however, forthcoming to prove when she died nor was a copy of the alleged inheritance mutation produced. Then tracing that land further downwards, to the Jamabandi of 1908‑09, it was fond that Ghulam Qadir son of Hakam, Chuhar son of Buta and Karam Dad and Sharaf Din sons of Umar were recorded as owners of the land in ancestral shares. In 1892‑93, some pant of the shamilat seems to have been divided among the proprietors. In 1911-12, there were consolidation proceedings undertaken by the Revenue authorities. After, these proceedings had ended, the descendants of Ghulam mentioned in the Jamabandi of 1912, were again shown as owners of some land, held in equal shares. Thereafter in the subsequent Jamabandis, right up to the year 1942‑43, the decendants of Ghulam were recorded as owners of the and held by them jointly, in ancestral shares. These. Facts according to the learned Judges, were sufficient for the conclusion that the property must have at one time belonged to Ghulam. It was argued before the learned Judges, on be4alf of the defendants, that the total area of the land in khatk No, 21, as mentioned in the Settlement record of 1865, was only 218 kanals and 7 marlas of land, out of which the descendants of Ghulam owned only one third share, amounting to a little over 72 kanals, 9 marlas of land, but that Karam Dad had made a gift of 310 kanals and 9 marlas of land, the whole of which could riot have devolved upon him by inheritance., The learned Judges met this objection, by saying that as the descendants of Ghulam had a sere in the shamilat khewats, 24 and 73 of 1865 and a large number of khasra numbers, included in these khewats, measured more than 100 kanals each, in all probability, at the. time of the partition of the shamilat. the proprietary area of the descendants of Ghulam had considerably increased. In the view, of the learned Judges, shamilat land allotted on partition to an agriculturist, by view of being the proprietor of other ancestral and in the same village, must be regarded as his ancestral property. The interest of in possession of Karam Dad at the time of the Settlements eras, therefore, attributed to possible accretion as a result of the partition of the shamilat; though the relevant mutations Were not produced. With all respect, it must be pointed out that the approach of the High Court to the ease left much to be desired. Instead of taking the entry in khata No. 21 of‑ the 1865 Settlement record as the starting point, the learned Judges ought to have considered the history of each khasra number in suit, by tracing it backwards up to, the 1865 Settlement record, in order to find out in whose possession it was shown in that Settlement. The learned Judges appear to have assumed, unconsciously, that the suit‑land was represented wholly by the one‑third share of Ghulam's family in khata No. 21 of 1865. Learned counsel for both sides have now presented us with charts that they have prepared from the excerpt of the land in question, showing the corresponding numbers of the khasras in suit, in the previous Settlements. The position that emerges from a study of these documents and the excerpt is that only one khasra number in suit, viz. 3908, is traceable exclusively, to khata No. 21 of 1865, in which Ghulam's family figured as owners. None of the other khasra numbers is exclusively traceable to that proprietary khata. The other numbers include khasra No. 3993, which is not ‑at all traceable to 1865. It is claimed, on behalf of the appellants, that khasras Nos. 1219 and 2207 of the suit‑land also suffer from the same infirmity. This is borne out by a comparison of the two charts, placed before us by the learned counsel. It would thus be clear that at least three khasra numbers had not been traced to the 1865 Settlement record at all, and clearly, in their case, there was no possibility that they could have been held by Ghulam, the common ancestor. The remaining khasra numbers, barring No. 3908, are partly traceable to the proprietary khata 21 and partly to other proprietary khatas in which Ghulam's family had no share or to the shamilat khatas. It seems correct that the area recorded as shamilat of the village or of certain proprietary khatas in the 1865 record had been progressively reduced, probably as the result of partition, in the subsequent Settlements. No evidence was, however, brought on the record to show which numbers come to the family of Ghulam, out of the shamilat, at the time of its partition and whether the allotment, to Ghulam's family, out of those shamilat areas, was purely in respect of the ancestral property which might have been held by Ghulam. The best evidence that could have been furnished by the relevant mutations was withheld. The excerpt only traces back the suit‑land. No evidence was led to. show that the family never acquired or held any property, other than that left by Ghulam. That possibility being still open and no specific evidence having been produced to show which khasra numbers, if any, came into the possession of the family as a result of the partition of the shamilat, it is not certain whether the excess area which the family held in subsequent Settlements, was wholly acquired by them as a share of the shamilat, appurtenant to their own ancestral property. This fact could have been established by calling for the records of the partition of the shamilat, but the respondents failed to do so. The con fusion is further enhanced as there was no attempt made to show whether at the time of the killabandi or the consolidation opera tions that took place in or about the year 1911‑12, the new numbers, that were allotted to the family of Ghulam were In. lieu of xhsir ancestral property or not. Only the old numbers of the land shown in the possession of the family in that year were apparently traced by the Moharrir Patwari to the record of 1865 and no attempt was made to trace out the history of the khasra numbers in lieu of which, some or all of these khasra numbers of 1911‑12' were assigned to the family of Ghulam, as a result of consolidation proceedings. The proposition., that the property acquired in exchange for ancestral land, in such operations, does not lose its character as ancestral property, cannot be controverted. But positive evidence should have been led to show that the share of the shamilat, assigned to the family, was exclusively appurtenant to their ancestral property, and further, that in consolidation of killabandi operations the new numbers assigned to them were also exchanged for ancestral property. The result of this state of evidence is that it is impossible to postulate, with regard to the suit‑land, that the whole of it must have come from ancestral sources. The possibility, that the family acquired other non‑ancestral property at spree stage, cannot be ruled out, without evidence. The accretion to the holdings of the family may be due to more than one cause, and it would be purely conjectural to hold that it must have come exclusively from shamilat and in respect of claims to ancestral property alone. It is now impossible to differentiate which portion of the suit land, if any, was ancestral, and which was self‑acquired of the family at any stage. In the circumstances, we are constrained to the finding that the respondents should be held to have failed to establish the ancestral character of the property in suit qua them. This is not the only difficulty; confronting the respondents. Even in respect of the entry in the proprietary khata 21 of 1865, the three sons of Ghulam are not shown as holding property in equal shares, although Budha was apparently alive when the Settlement records were prepared, as is evidenced by the pedigree table attached to that record. Only his two nephews and the wife of Budha are shown as holding property in equal shares. The fact that Mst. Sahibzadi is not shown as widow of Budha but as his wife, supports the suggestion made by the appellant that Budha was alive at the time. On these facts, it is impossible to conclude that the property must have descended to the two grand‑sons of Ghulam and Mst. Sahibzadi, daughter‑in‑law of Ghulam, by inheritance alone. So even, in respect of the sole proprietary khata, in which the family of Ghulam is included as joint owners, the position is far from clear, and it cannot be said with confidence that the property held by. the members of the family in 1865, must have come from Ghulam and devolved on them by inheritance. The significance of the fact that Budha was alive in 1865 and his wife was shown in his lifetime, as holding one‑third share, along with two grandsons of Ghulam, was lost sight of in the High Court. Mr. Muhammad Anwar Buttar, who appeared for the respondents, tried to offer an explanation as to why some khasra numbers were not exclusively traced to the proprietary khata No. 21 of 1865, or to shamilat numbers. Reference was made by the learned counsel to the fact that in the Jamabandi of 1942‑43, in khata No. 591, the descendants of Ghulam held only one‑third share, out of which a half share was gifted away by Karam Dad. The rest of the owners of this joint khata are not members of Qhulam's family. It is, therefore, argued that it is not surprising that some of the khasra numbers in suit, situate in a joint khata, held by the descendants of Ghulam and others, should be traceable to some other proprietary khatas of 1865 partly, though in those khatas Ghulam's descendants do not figure. But this does not explain why a khara, held jointly by Ghulam's family and others now, should be traceable in part to a joint khata of 1865 and to some khatas exclusively held by third parties. having no connection with Ghulam. If some khatas of the suit‑lands are jointly held now by Ghulam's descendants and others, the position ought to have been the same in the 1865 Settlement. This is by no means the case. The upshot of the whole discussion is that there is no clear proof of any part of the, suit‑property being ancestral qua the plaintiffs‑respondents and it cannot be predicated in respect of even khasra No. 3908 which is traceable to the proprietary khata 21 of 1865, that it must have been held by Ghulam at one time. The further contention raised by Mr. Muhammad Anwar Buttar, on behalf of the respondents, that even if a small portion of the suit‑land is suspected to be non‑ancestral, the suit should not be dismissed as a whole, does not arise for consideration in this case, as it is impossible to determine which portion, if at all, is ancestral and which non‑ancestral, out of the suit‑land. In such an event, where the boundaries of the self‑acquired and the ancestral properties cannot be demarcated, the whole of the suit property must suffer from that infirmity, and the plaintiff must be held to have failed to discharge the onus that rested on him, of proving the ancestral nature of the property Reference in this; connection be made to Atar Singh and others v. Thakar Sangh (42 P R 100(P C)) in which this principle was affirmed, by the Judicial Committee of the Privy Council. After giving full consideration to the facts of the case we have, therefore, reached the conclusion that the High Court was not justified, in interfering with the .finding of the trial Judge that the property was not proved td be ancestral qua the plaintiff; in the circumstances of this case. We, therefore, allow the appeal, set aside the order, passed by the High Court, and restore that of the trial Judge with costs throughout. K. E. Appeal accepted.