1990CLC164 (PLP)

Ch. Muhammad Taj for Appellant. Raja Muhammad Saddique Khan for Respondent. The appeal is addressed against the order of District Judge, Mirpur, passed on December 19, 1987 whereby the order of Sub‑Judge, Dadyal passed on August 15, 1987 was set aside and plaintiff's suit was partly decreed by granting her 1/4 share out of the estate of Noor Hussain, deceased.

2. The dispute pertains to the land left by Noor Hussain, deceased. Said Bibi was widow and the appellant a collateral of the deceased. On the death of the deceased prior to Independence, the estate devolved exclusively on Said Bibi as widow and mutation number 196 was attested to that effect. Later on, Mutation No.218 for whole of the estate was attested in the name of the appellant on March 16, 1954. Mst. Said Bibi brought her claim through a suit for declaration as owner of the land. In alternative, she asked for grant of decree of 1 1/4 share as widow of the last owner. The suit was preferred on July 9. 1984. It was averred that plaintiff‑respondent was in exclusive possession of the suit land and that she entered into second marriage in April, 1951. Later on, she proceeded, to England to join her husband and passed on the possession of the land to Beeroo, defendant‑appellant on payment of `Batai'. Her share of produce was delivered to her and in her absence to her daughter, but in April 1984, on account of a quarrel between the parties, payment of `Batai' was stopped and her claim to the property was denied. Thereupon she came to know that Beeroo secured a mutation and entries in the Record‑of‑Rights in his name. Thus she brought the action for cancellation of the mutation, correction of Record‑of‑Rights and restoration of possession of the suit property. Beeroo, in his written statement, repudiated the claim of the plaintiff. It was averred that Noor Hussain died m Dogra regime and thereafter Said Bibi contracted second marriage in Dogra regime, as such she lost her title in the property. After her second marriage, the. possession passed on to the defendant who enjoyed it continuously over more than 12 years. Thus his occupation ripened into adverse possession. The trial Court dismissed the suit for want of proof. The learned District Judge, however, modified the order of the trial Court and granted 1/4 share to Mst. Said Bihi as widow of Noor Hussain, the last owner. The learned District Judge came to the conclusion that during Dogra regime: the parties were governed by personal law as such in absence of proof of special custom, widow was eligible to inherit 1/4 share out of the estate of her deceased husband.

3. The learned counsel for the appellant assailed the finding of the Distric Judge and urged that custom was proved from the pleadings and evidence of the parties and that the learned District Judge misdirected himself by ignoring the pleadings and evidence. Raja Muhamamd Siddique Khan, the learned counsel for the opposite side, opposed the contention and argued that it was enjoined upon defendant to plead special custom expressly and to prove it by tangible evidence. This was not done in the present case, as such the findings of the District Judge were unassailable. 4. 1t is undenied that before Independence, personal law of inheritance was in force in the State of Jammu and Kashmir. Initial presumption was, therefore, in favour of personal law applicable to the parties. In order to succeed on the plea of custom, it was necessary that the party raising the plea of custom must allege it in specific terms in the pleadings and prove it as such. The consistent view of this Court and the Supreme Court of Azad Jammu and Kashmir is that unless custom is pleaded expressly and proved in. like manner, estate of deceased, the last A owner, is to devolve on the heirs in the manner prescribed in the personal law. Reference is made to Mst. Gulnara Begum's case, PLD 1959 AJK 5 and Mst. Fatima Bibi's case, PLD 1983 SC (AJK) 53.

5. In present case, it is found that custom was not expressly pleaded in his pleadings by the appellant nor any issue to that effect was raised. There is no evidence worth reference to uphold the objection. The finding of the learned District Judge on the point suffers from no defect. My attention was invited to the pleadings of the plaintiff wherein it was averred in para. 1 that on the death of Noor Hussain, his whole estate devolved on the plaintiff, whereby she became the sole owner. These pleadings, by no stretch of imagination, support the contention of the learned counsel for the appellant. The fact that the property exclusively devolved on the widow and that a mutation was sanctioned to that effect, by itselfis not sufficient to presume any special custom prevailing in the family. Mutation the estate to the exclusion of other heirs, could have been sanctioned in favour of the widow for want of claim by surviving heirs of the deceased at the relevant time. Besides that, Beeroo appellant, the next claimant, was not shown present at the time of attestation of mutation. Therefore for either of the reasons, mutation could have been attested exclusively in the name of the widow. Moreover, the language of mutation does not express that mutation was attested exclusively in the name of the widow by virtue of custom. Here it is relevant to state that if special custom desired to be accepted by the Court was prevailing in the family, then the mutation should have been attested conditionally, at least till the second marriage of widow or her death. No such condition is found in the mutation. Therefore, this part of the pleadings of the plaintiff is of no assistant: to the appellant.

6. To supplement the argument, the learned counsel referred to para 4 of the pleadings of the plaintiff and emphasised that by raising alternate plea of inheriting 1/4 share under the personal law, the plaintiff impliedly admitted the existence of special custom There is no force m the argument. For this, simple reason is that she claimed sole ownership of the suit land. It was averred in para. 4 that in the alternative, she was entitled to 1/4 share out of the estate by virtue of personal law. The rules of procedure pertaining to civil actions permit a plaintiff to plead inconsistent facts and ask alternate reliefs arising out of material facts of the case. Only such inconsistent facts are not permitted to be pleaded which cannot co‑exist. Therefore, when a plaintiff pleads alternate case or facts, unless such facts are self‑destructive, it is always deemed expedient to allow the suit to continue for its final determination. For instance, it is permissible to plead sole title by alienation in an estate and in the alternative, to claim adverse possession for want of valid transaction. In the present case, the plea of the plaintiff that she was sole owner of the estate and alternate plea of inheritance under personal law are not self‑destructive. The alternate plea is, therefore, permissible and it cannot be construed as admission of custom.

7. The learned counsel for the appellant frankly accepted that the defendant and the witnesses produced by him made no reference to any special custom in their testimony. It is pertinent to state that on account of absence of plea of custom in the written statement, no issue was raised to that effect. No D effort, whatsoever. was ever made even at late stage to raise the plea of custom in unequivocal manner to deprive the plaintiff from inheriting the estate of her late husband. The objection is, therefore, unsustainable.

8. Next, the learned counsel canvassed adverse possession in favour of defendant‑appellant. It was argued that the mutation in dispute was attested in favour of defendant in 1954. The possession of defendant being continuous for more than 12 years matured into adverse possession. Moreover, it was contended that by virtue of sanction of mutation No.218, Said Bibi lost the status of a co- sharer in the land, as such possession of defendant could not be deemed the possession of plaintiff as well. It is already held that Mst. Said Bibi was not excluded by special custom to inherit the estate of her late husband. It is also held that the parties were governed by personal law in inheritance. The relationship of E Mst. Said Bibi and Noor Hussai deceased is undenied. Therefore, being widow, she was eligible to inherit 1/4 share in the estate of her late husband.

9. The term "co‑sharer" means a person who retains any fraction of share in property. Analysis of the term "co‑sharer" has been made in Muhammad Alam Khan's case, PLD 1984 AJK

51. The relevant observations are reproduced:‑ "A co‑sharer is not defined in the Right of Prior Purchase Act or an' other law. In absence of definition of term "co‑sharer" in the statute it is safe to revert to its ordinary disctionary meaning. The word "co‑sharer" consists of two words, "co" and "sharer". The word "co" is defined by Webstor as:‑ "signifying in general with, together, in conjunction, jointly, and is used: (1) with verbs: as, co‑sustain, to sustain jointly: co‑adjust, to adjust mutually; co‑operate; co‑exist etc. (2) with particles, adjectives, and adverbs, with the sense of in or to the same degree, amount etc.: as co‑extensive, co equal, co‑equal, co‑extensively, co‑equally, 3(a) with nouns in general, often importing rights or liabilities which are joint or in common; as co education, co‑adventure, co‑eternity, co‑indication, co‑portion, co inheritance; (b) with nouns of agency, office or occupation in particular; follow; as co‑author, co‑partner, co‑detor etc. etc." The word "sharer", again, signifies to have or possess or retain share of title or right to share. Thus, a person may be called a co‑sharer who enjoys title or retains any fraction of share in property." It is quite evident that Mst. Said Bibi having fractional share in the suit land, by all canons of law, retains her status of a co‑sharer. 10 Much emphasis was laid on the entries of Record‑of‑Rights to establish that on account of absence of the name of plaintiff in the Record‑of‑Rights with effect from the attestation of Mutation No.218, the defendant acquired the status of sole owner of the property. First of all, it may be stated here that mutation does not create any title in property. In the present case, the name of plaintiff was deleted from the Record‑of‑Rights by virtue of the mutation in dispute. Therefore, the entries resting on the mutation would not carry any greater weight than the mutation itself.

11. It is celebrated rule that possession of one co‑sharer would be possession on behalf of all other co‑sharers, peaceful possession of co‑sharer, for whatever length of time, would not be adverse to those who are out of possession of the 1H property. 1n Mst. Jummi's case, PLD 1960 AJK 70, Mr. Justice Fayyaz Hassan Shah, the learned Chief Justice of this Court (as he then was), while dealing with an identical proposition, recorded the following observations:‑ "It is argued by the learned counsel for the appellants that the absence of entry of Rehm Dil as a co‑sharer at the time of settlement operations should be considered to be denial of his title. Now from the mere fact of the omission of the name of particular co‑sharer, we cannot infer that there was a denial of his title by the co‑sharers, whose names were entered in the `Misl‑i‑Haqiat'. It is possible that this was a case of mere omission and not of a denial of title, possibly none of the parties was present and some stranger stated before the Settlement authorities that Rohm Dil had no `haqiat' in the village Ballan but was residing in villagL Potah Kacheli .vilh the result that his name was not shown as a co‑sharcc in the suit land. There should be clear evidence of a denial of title. A disclaimer cannot be inferred from the mere fact that certain co‑sharers have got their names entered in the Revenue records." In Mst. Wazir Begum's case PLD 1961 (W.P.) Karachi 165, the learned Judges of the Court observed:‑‑ "That in the Record‑of‑Rights, the property remained in the name of the male heirs to the exclusion of females is not an unusual phenomenon. Amongst the Muslims, the women being pardanashin do not go out and assert their right to the property left by their deceased father and ordinarily the property in the Record of Rights or in the Municipal Records is mutated in the name of the male heirs of the deceased. This fact alone cannot lead to the conclusion that there was any ouster." In Mst. Sahib Jan Bibi's case, PLD 1961 (W.P.) Pesh. 9, names of female heirs of the deceased were omitted in the Record‑of‑Rights but it was proved that they received share out of produce of the land; they were held to be the co sharers in the property, irrespective of absence of their names in the Record‑of Rights. In Laxmi Reddy's case, PLD 1957 SC (India) 251, the leading essentials of adverse possession were discussed and it was held that possession of a co- sharer was possession of all other heirs unless it was established that the co‑heir claiming adverse possession denied the title of others by asserting his hostile title openly to the knowledge of opponents. The relevant observation is reproduced below:‑ "But in order to establish adverse possession of one co‑heir as against another it is not enough to show that one of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non possessing co‑heir by the co‑heir in possession, who claims his possession to be adverse, should be made out. The possession of one co‑heir is considered, in law, as possession of all the co‑heirs. When one co‑heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co‑heir in possession cannot render his possession adverse to the other co‑heir, not in possession, merely by any secret hostile animus on his own part in derogation of the other co‑heir's title. It is a rule of law that as between co‑heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by any one of them to the knowledge of the other so as to to constitute ouster."

12. It is a cardinal principle that there can be no adverse possession by a co sharer against other co‑sharers unless there is an ouster or exclusion of other co sharers by some overt act in the manner of open hostile assertion of one's title to the exclusion of others, to their knowledge. Mere possession, however long it may be, or non‑payment of share of produce or absence of names in the Record‑of‑ I Rights, would not be sufficient to constitute adverse possession. In present case, though the plea of adverse possession was raised in the pleadings and an issue to that effect was framed, but there is no evidence, including the testimony of the defendant‑appellant, to believe that the title of plaintiff, in the suit property was openly denied by asserting exclusive title of defendant.

13. It is on record that part of the suit land, 2 kanals 17 marlas, was occupied under the premises of the plaintiff out of Survey No.

281. Likewise, Mst. Said Bibi disclosed in her evidence that she mortgaged 14 Kanals land to her father in order to meet the funeral expenses of Noor Hussain. The possession of that land was delivered to the mortgagee and it was still with him. This fact was admitted by Faiz Alam, D.W. who deposed that 9‑10 kanals land left by Noor Hussain was in his possession and that his father had secured possession of the same. The defendant has not challenged the bona rides of Mst. Said Bibi in mortgaging that part of the suit land, the possession of which was still with the mortgagee. This leads to the conclusion that Mst. Said Bibi was accepted as having interest and title in part of the property. Here it may be stated that the parties agree that suit for possession of the premises and site thereunder, has been instituted by Beeroo against Mst. Said Bibi and the matter is still awaiting the decision of the Court. Be that as it may, the fact remains that Mst. Said Bibi retains possession of the house as well as the land under the house. These factors substantiate the claim of the plaintiff. The objection is, thus, overruled. There is no force in the appeal. It is, therefore, dismissed with costs throughout. A.A./376/H.CA Appeal dismissed.