1986 PLP 764 (MLD)

"(1) Whether this suit is time‑barred? O.P.D. (2) Whether the plaintiffs have no locus standi to file this suit? O.P. D. (3) Whether the plaintiffs are estopped to file this suit? O.P.D. (4) Whether the suit is not maintainable in its present form? O.P.D. (5) Whether this suit is improperly valued for the purpose of court‑fee and jurisdiction? O. P . D . (6) Whether Mutation No.128, dated 28‑6‑33 is illegal, void and ineffective on the rights of plaintiff? (7) Whether the plaintiffs are owner in possession of the suit property? O. P. P. (7‑A) Whether the family of Noor Ahmad deceased was governed by custom in matter of inheritance, if so what was that custom? O. P. D. (7‑B) Whether the suit property is not properly described if so its effect? O.P.D. (8) Relief.." The trial Court found all issues except Issue No.5 against respondents/plaintiffs and dismissed the suit on 22‑1‑1984. Feeling aggrieved respondents/ plaintiffs filed appeal before the learned District Judge who accepted the same on 23‑5‑1984. The learned District Judge while discussing Issue No.7‑A first came to the conclusion that the parties were governed by the Islamic Law in matters of inheritance and the respondent /plaintiffs were entitled to inherit the suit land. On the point of limitation. and maintainability of the suit the learned District Judge was of the view that since the respondents/ plaintiffs were co‑heirs of the estate with their brother Shams‑ud‑Din petitioner/defendant therefore the suit was not only maintainable but also not barred by time.

3. Learned counsel for the petitioner defendant vehemently challenging the judgment and decree of the learned District Judge submitted that (i) on the question of custom, the learned District Judge reversed the well‑reasoned judgment of the trial Court without factual and legal justification inasmuch as his finding is based on misreading/ non‑reading of oral/ documentary evidence particularly statement of Fida Muhammad P.W.3 wherein he admits that some of the female relatives of the parties failed to inherit the property on account of custom; (ii) that the petitioner /defendant has successfully and satisfactorily proved that family of Noor Ahmad deceased in matter of inheritance was governed by the custom whereby the petitioner/defendant, alone was entitled to succeed to property of his father, (iii) relied or Luqman and others v. Gul Muhammad and others 1984 S C M R 63 and Mst. Karim Jan and 3 others v. Anwar Khan and another P L D 1984 Pesh. 111 to contend that Mutation No.218 sought to be declared inoperative was attested on 28‑6‑1933 and suit was instituted on 25‑3‑1981 i.e. about 48 years after the cause of action accrued to respondents/ plaintiff; that old mutations are not to be disturbed after such a long time and that in the circumstances of the case, the suit was barred by time; (iv) since after the death of Noor Ahmad the respondent /plaintiff neither occupied the land nor did enjoy usufruct therefore it shall be presumed as if they had relinquished their rights if any and as such they were estopped to file suit; (v) that suit for mere declaration without prayer for possession was not maintainable, and (vi) that the impugned judgment of learned District Judge being brief, the learned District Judge had not applied his mind properly to evidence on record.

4. I have, considered the arguments advanced by the learned counsel for the petitioner defendant with care and have not been able to persuade myself to agree with him. Since special custom overriding personal law was alleged by the defendants, therefore, it was for him to establish valid custom by showing that it was ancient, invariable, uniform and continuous through clear and unambiguous evidence because quantum of evidence necessary to prove custom is much more than that required to negate it. No presumption can be made in favour of existence of custom. Wajib‑ul‑Arz is prima facie a strong piece of evidence. The parties may quote numerous instances in which alleged custom had been acted upon; exhibit judicial decision wherein custom has been recognized, and rely on revenue record and private record to prove or negate a custom. Evidence, however, must be such that claim was contested and abandoned by someone who if custom had not existed would have been entitled to it. Instances and judicial decisions be such that a female claimed her share but the same was denied to her on the strength of custom. Since question of a custom is more or less question of law and it is a case of judgments at variance where inheritance matter is involved therefore in the larger interest of justice I have examined/ appraised oral /documentary evidence placed on record relating to the question of custom. The onus to prove issue No.7‑A relating to custom was on the petitioner/defendant. He examined Rasool Bukhsh D.W.1 and Abdur Rahim D.W.2. He tendered in evidence pedigree‑table D.1 and D.2, copies of Khasra Girdawaris D.3 and D.4, mutations of inheritance D.5 to D.8. In rebuttal Fida Ahmad P.W.3 appeared as a witness. Besides copy of Wajib‑ul‑Arz Exh. P.6, copies of mutations of inheritance P . 3 t o P.5 and P.7 to P .11 were tendered in evidence. The trial Court after having discussed the evidence of the plaintiffs/ respondents stated that:‑‑-- "On the contrary the defendant in order to prove custom produced documentary evidence Exh. D.1, D.2, D.5 to D.7. These documents are certified copies of the' pedigree tables and mutations. It can be easily inferred from the examination of these documents that the parties were governed under customary law as no inheritance has been given to the women." On independent assessment of evidence in the light of guiding principles laid down by the Superior Courts for the appreciation of the evidence relatable to custom and the above stated test I find that th petitioner /defendant hopelessly failed to establish custom in derogation of personal law of the parties. He failed to give instances of a contested/ abandoned claim by a female. The three mutations relied on by him do not show that the same were sanctioned under custom. The female heirs if any were neither present at the time of attestation of these mutations nor did they abandon their share at the time of the attestation of the mutations. No judicial decision has been tendered in evidence to prove judicial recognition of the custom. The oral evidence adduced by the defendant is not strong enough to prove as custom, in so far as the defendant did not care and dare to appear as a witness. Before me the learned counsel has failed to quote/point out any instance wherein female having claimed inheritance Under personal law was refused the same on account of custom. Wajib‑ul‑Arz does not support him. The statement of Fida Ahmad P.W.3 when read as a whole, it cannot be said that he admitted custom as alleged by the petitioner/defendant. For all these reasons I am of the view that the evidence of petitioner/ defendant is not strong enough to establish custom overriding persona law of parties. The learned District Judge has applied his conscious mind to the matter in controversy. He has given sound and cogent reasons in support of the conclusion arrived at by him. I am convinced that in the circumstances and on the, evidence on record, the learned District Judge was perfectly justified to hold that parties were governed by Islamic Law in the matter of inheritance whereas the judgment of the learned trial Court suffers from misreading of the evidence inasmuch as documents relied on by him do not show that the mutations were sanctioned under custom. He has failed to appreciate the question of custom in its true perspective. From the trend of his judgment it is very much obvious that he perhaps did not know how to appreciate the question of custom. I cannot help remarking that the learned Civil Judge for motives best known to him approached the case in an entirely illegal manner in so far as he considered it appropriate to discuss the plaintiffs/ respondents, evidence on Issue No.7‑A first and then th defendant's evidence, this is to say at least, a topsy turvy way of dealing with the question of custom, the onus to prove the same was on the petitioner/ defendant. He should have first discussed the defendant's evidence and come to an independent finding on the truth or falsity of the same and should then have examined the evidence of the respondents /plaintiffs in the light of circumstances brought on record. From judgment it is very much obvious that the trial Court was bent upon deciding the case in favour of the defendant /petitioner irrespective of the weight of the evidence on record.

5. Coming to the objections raised by the learned counsel as to the maintainability, estoppel and limitation, I find that in matters of inheritance, a suit for mere declaration as to legal status of plaintiffs/ respondents was quite maintainable because whole estate devolves on heirs at the moment of death automatically and is not postponed till the attestation of mutation and is not suspended whatever the reasons may be. In this view of the matter, possession of a co‑heir has to be presumed as possession of all the co‑heirs. In the case in hand, the plaintiffs /respondents claim joint possession. In para. No.2 of the plaint, it has been stated that:

If for the sake of arguments, it is assumed that they had not participated in produce that alone would not constitute conscious relinquishment. It is worth notice that the petitioner/defendant did not plead any adverse possession. As for the case‑law relied on by the learned counsel, that is quite distinguishable inasmuch as in the instant case, the plaintiffs/respondents not only asserted 'joint possession of the suit land but also claimed 'Tasarruf' over the same. Blaming petitioner /defendant of misrepresentation, they specifically stated in the plaint that cause of action arose six months before the filing of the suit. It is well‑settled that even last attack on the right of plaintiff would give him fresh cause of action for the purpose of limitation and that he may file suit for declaration within six years of last attack on his rights under Article 120 of Limitation Act. Furthermore it is a case where real and substantial justice has been done by the learned District Judge according to law.

6. For what has been stated above, it is not a fit case for interference with the judgment and decree of the learned District Judge in exercise of the revisional polders of this Court. Dismissed in limine.

7. Before parting with the judgment I would like to add that Sh. Abdul Salam, Civil Judge, Khanpur appears to be inefficient. Let a file on administration side be opened against him and copies of the judgments of Civil Judge, District Judge and this judgment be placed therein. The file so opened be produced before me for further action. M . Y . H . Revision dismissed .