1988 PLP 1700 (CLC)

Nemo for Respondent. Date of hearing: 27th January, 1988. This second appeal under section 100, C.P.C. was directed against the judgment and decree, dated 18‑6‑1966 passed by learned Additional District Judge, Jhang whereby the appeal of the present appellant was dismissed and the judgment and decree dated 22‑2‑1965 of the learned trial Court decreeing the suit of respondent No.1 were upheld.

2. The necessary facts, briefly stated, are that Khadim Hussain respondent No.l, filed a suit for possession of one half share of land left by Muhammad Hussain deceased, through inheritance with the averments that Muhammad Hussain being a Shia, Irshad Fatima, her widow was not entitled to inherit any thing. Khadim Hussain respondent and Muhammad Hassan husband of Irshad Fatima, appellant, were real brothers while Mst. Zohra Begum and Mst. Bismillah Begum are their sisters. It was asserted that on the death of Omed Ali Shah in 1938 his property was mutated in the name of Khadim Hussain plaintiff and Muhammad Hassan, husband of Mst. Irshad Fatima appellant. Muhammad Hassan died in 1956 and the land standing in his name was mutated in the name of his wife Mst. Irshad Fatima, appellant on 7‑2‑1957. This led to the filing of the present suit challenging the mutation and the claim of ownership of Mst. Irshad Fatima over the land in question. Mst. Irshad Fatima contested the suit with the assertions that Omed Ali Shah, father of respondent gave the land in suit and Rs.2,000 as dower at the time of her marriage in 1927 at village Batala, District Gurdaspur India, and that since then she was in possession of the suit land. She, however, admitted that Muhammad Hassan, who died issueless on 30‑6‑1956 was a Shia. Mst. Bismillah and Mst. Zohra Begum in their written statements admitted the claim of Mst. Irshad Fatima with the submission that in case the version of Mst. Irshad Fatima is not accepted, then they be allowed their legal share in the land. Mst. Bismillah Begum, however, in her second written statement repudiated the claim of Mst. Irshad Fatima. On the basis of the pleadings of the parties, the learned trial Court framed five issues and after trial, the suit was decided but this decision was set aside by the then learned District Judge and vide judgment dated 18‑3‑1959 the suit was remanded with the direction that additional issues should be framed. Thereafter, the learned trial Court framed issues Nos. 1‑A, 1‑B, 1‑C and 1‑D. The parties adduced their evidence and ultimately, the suit was decreed by the trial Court on 22‑2‑1965. This decree was challenged in first appeal which was, however, dismissed vide judgment and decree dated 18‑6‑1966. Hence, the present second appeal.

3. Learned counsel for the appellant argued that the document dated 8‑4‑1956 Exh.D.2 was illegally discarded from consideration and that the admissions contained in this document alongwith the fact that the possession always remained with the appellant were sufficient to establish the claim of the appellant; that the land in dispute was given to her in lieu of her dower; that in any case the appellant had a lien on the land for Rs.2,000 on account of dower, that the learned Additional District Judge by misreading the written statement of the two sisters held that the said amount had been paid, and that the findings recorded by the learned Courts below suffer from misreading of evidence.

4. At this stage, it may be noted, that Khadim Hussain, plaintiff/ respondent died during the pendency of appeal and his legal representatives namely Mst. Manzoor Fatima, widow and Mst. Riaz Begum, daughter, were brought on record alongwith Mst. Bismillah Begum, who was already on record as one of the respondents. Mst. Manzoor Fatima and Mst. Riaz Begum have also died after 1972 but their legal representatives have not been brought on record. In view of the law now prevailing, the appeal does not abate on account of non‑impleading of legal representatives of Mst. Manzoor Fatima and Mst. Riaz Begum. The appeal has, therefore, been heard in their absence.

5. I have gone through the record as well as the judgments passed by the learned Courts below with the assistance of the learned counsel. The plea that the land in dispute was given over to the appellant, at the time of her marriage in lieu of her dower, has remained unsubstantiated. In fact, except for the memorandum of will dated 8‑4‑1956, Exh.D.2 nothing worth the name was produced to establish the aforenoted version. The memo. of will dated 8‑4‑1956 has not been accepted as a genuine document by both the lower Courts below in view of the discrepant statements made by Dilawar Ali and Dilawar Hussain, DWs. Moreover, this document, at best, contains the admissions of Muhammad Hassan. These admissions stand controverted by the voluminous documentary evidence available on record. The entries of Jamabandi EXh.Pl for the year 1955‑56 of Chak No.493, Jamabandi Exh.P2 of village Dhingru, copies of mutations Exh.P5 to Exh.P10 show the contrary conduct not only of Omed Ali Shah, the father who was alleged to have given the land and Rs.2,000 as dower but also of Muhammad Hassan the alleged executant of the memo. of will Exh.D

2. These documents show that on the death of Omed Ali Shah, the land was mutated in the name of his sons including Muhammad Hassan and this Muhammad Hassan has sold it in his life time, a part of the land so received in inheritance. The details of this contrary conduct have been given in the judgment of learned first appellate Court and as such the same need not be repeated here. In face of all such conduct, it is idle to urge that Omed Ali Shah had given the land and had fixed Rs.2,000 in addition and dower at the time of marriage of Irshad Fatima.

6. The next plea of the learned counsel that the possession of the land being with the appellant, it is to be presumed that she was the owner, has no merit. Muhammad Hassan the husband of the appellant got the land through inheritance and during his life time he remained in possession of it and after his death, the land was mutated in the name of the appellant and that is how she is found in possession of the land. Such a possession over the land cannot be set up as proof of possession since 1927 or as independent possession of a real owner.

7. As regards the lien of Rs.2,000, it is true that in the written statement filed by Zohra Begum, it is admitted that Rs.2000 was fixed as dower but this admission cannot be used against the plaintiff as the fact that Rs.2,000 was fixed as dower has not been established on record by producing any independent cogent evidence. In this view of the matter learned Courts below were right in holding that lien could not be claimed on the land in dispute.

8. I may add that no misreading of evidence could be pointed out by the learned counsel for the appellant during the arguments. The concurrent findings of fact recorded by the learned Courts below are based on evidence and as such the same cannot be interfered with in second appeal under section 100 C.P.C. This second appeal, therefore, fails and is dismissed. Parties are, however, left to bear their own costs. H.B.T./I‑61/L Appeal dismissed.