P L D 1988 Lahore 588 (PLP)

ABAID ULLAH KHAN, J.‑‑This appeal impugns the validity of the judgment and decree of the learned Civil Judge, Lahore, dated the 16th April, 1984, whereby the suit for recovery of possession of the house in dispute initiated by the Court of Wards and subsequently pursued by respondents 1 to 6 was decreed against the appellant. A brief history of the present litigation touching the house in question bearing No.23, situate on Aikman Road, Lahore, covering an area of 9 Kanals 17 Marlas 183 square feet, entered in Khasra Nos.5476/43171 3559, needs to be narrated. One Lala Lai Chand Khosla was the original owner of the house. He sold it to Shehzadi Mehar, Bano Begum, who was daughter of Nawab Mugammad Amir‑ud‑Din Ahmad of Lahore and widow of Nawab Qutab‑ud‑Din Khan of Mamdot, for Rs.93,000 through a sale‑deed which was executed on the 29th April, 1942 and registered on the 14th May, 1942 and whose copy is Exh.P. I. Shainsher Ali Khan the appellant, is the brother's son of Shehzadi Mehar Bano Begum. According to Shehzadi Mehar Bano Begum, the appellant came over to Pakistan from India in May, 1951, as a Mohajir and requested her to allow him to put up in the house in dispute temporarily. She averred that due to relationship and by way of showing sympathy she permitted him to stay in a portion of the house for a few days but subsequently he took over possession of the other portion of the house as well and despite her asking him to leave he had refused to vacate possession. Therefore, on the 3rd May, 1952, she instituted suit for recovery of possession of the house against the appellant. During the pendency of the suit the superintendence of the house and other property of Shehzadi Mehar Bano Begum was taken over by the Court of Wards. The Deputy Commissioner, Montgomery (now Sahiwal), moved application for substitution of the Court of Wards as plaintiff in place of Shehzadi Mehar Bano Begum. The application was rejected by the learned trial Court on the ground that the Deputy Commissioner, being not a Court of Wards had no right to prosecute the suit which was dismissed. The Court of Wards filed another suit against the appellant for recovering possession of the house in 1959. On the appellant's objection that the relief claimed had been undervalued the learned Civil Court appointed a Commissioner to assess the value of the house in suit. The Commissioner determined the value of the house at Rs.2,50,

000. The learned Court directed the Court of Wards to correct the valuation and pay up deficiency in court‑fee. On the Court of Wards' failure to comply with the order of the Court plaint of the suit was rejected on the 2nd December, 1961.

2. On the 16th May, 1963, the Court of Wards filed against the plaintiff a fresh suit whose decision has given rise to this appeal. This time it valued the cause for purposes of court‑fee and jurisdiction at Rs.2,50,000 and paid the requisite court‑fee.

3. The appellant contested the suit. He described the suit to be barred by law and liable to be dismissed. He maintained that the plaintiff's suit on the same cause of action having already been dismissed the plaintiff was precluded from filing a new suit. He took exception to the value of the suit for purposes of court‑fee and jurisdiction as stated in the plaint and pleaded that the market value of the house was no less than Rs.10,00,

000. He contended that the suit had not been properly instituted by and through a competent person.

4. He did not accept Shehzadi Mehar Bano Begum to be exclusive owner of the house,. He asserted that the house had been purchased with money accruing from the sale proceeds of a part of property jointly owned by him and Shehzadi Mehar Bano Begum for the purpose of his residence. He said that he had come over to Pakistan not as a refugee but under the aegis of permanent settlement permit issued by the Government of the Punjab. He denied that he had asked for her permission to occupy the house. He put forth the claim of being an adopted son of Shehzadi Mehar Bano Begurn and her husband, Nawabzada Qutab‑ud‑Din Khan of Mamdot, as well as of being the joint owner of the house. His version of the case can better be appreciated by the contents of paragraph 5 of his written statement which are reproduced below:‑ "That the answering defendant did not come to Pakistan as a refugee but under the aegis of a permanent Settlement Permit issued by the Government of the Punjab on 24‑3‑1951. Nawabzadi Mehar Bano Begum was not in Lahore when he arrived, so there could be no question of the answering defendant 'asking her permission' in respect of occupation by him of his own property. In fact she conveyed to him by letter dated 6‑5‑1951, addressed to him while he was still in India, that she had instructed her servants to make over the house and everything in it to the answering‑defendant, save only her car which was garaged on the premises which he was told he could "use". The correct position vis‑a‑vis the answering defendant and the Nawabzadi Mehar Bano Begui‑n is as follows:‑ The answering defendant is the duly adopted son of Nawab Qutab‑ud‑Din Khan of Mamdot and his widow Nawabzadi Mehar Bano Begum. His adoption was decided upon by the Nawab and Begum and his actual parents prior to his birth, and the Giving and Receiving' was complete by 1918 when the answering defendant was just over one year old. Thereafter, he had nothing to do with the family of his birth but was completely assimilated into the Mamdot family and brought up as the son and heir. The Mamdot Estate was managed by the Court of Wards during the lifetime of Nawab Qutab‑ud‑Din Khan. By sanctioning an allowance of Rs.10,.000 per annum in favour of the answering‑defendant at the request of the Nawab the Government gave tacit assent to his adoption. It is noteworthy that during this period the Nawabzadi Mehar Bano Begum's allowance from the same source was Rs.3,000 per annum. The Nawab died in 1928, and Nawabzadi Mehar Bano Begum was made titular guardian of the answering defendant, as he was a ward of the Court of Wards in his own right, for the remaining period of his minority. Instead of pressing his claim to the Jagir and title of Mamdot on the basis of his valid adoption, the Nawabzadils mendacity prevailed upon her to arrange a settlement with Khan Shah Nawaz Khan, the collateral claimant, whereby she acquired the property known as No.l. Mozang Road in Lahore, circa 60 squares of land in Montgomery and Rs.5 lacs in cash. It is noteworthy that she could not have received anywhere near as much as this in a settlement made under the aegis of either Shariat or Customary Law, but was only able to achieve this as she held over the head of Khan Shah Nawaz Khan the threat that she could petition the Government for the Mamdot Estate in toto on behalf of the answering defendant, on the ground, of his valid adoption which is acceptable in the Mamdot family of Pathans. When the answering‑defendant came of age in 1938 he wished to re‑open the issue as it was not then time barred, but by pleading that she and the members of the family who had supported her would get a bad name if this was done, she persuaded him to forego the opportunity. A verbal agreement was arrived at between the two which was to the effect that the answering defendant would receive from the overall income of the property a sum of Rs.550 per month, together with such other lump sums of money as were required by him from time to time. This agreement was carefully adhered to until 1951 when differences between the answering‑defendant and Nawabzadi Nlehar Bano Begum terminated all amiable contacts. After the Court of Wards had taken over the properties in 1954 the answering‑defendant submitted a claim under section 28 of the Court of Wards Act for a sum of Rs.14,325 which was based solely on the aforesaid agreement. Evidence was led to establish the claim, which was duly accepted in full and payment made. Concisely the position comes to this that all the properties in the name of Nawabzadi Mehar Bano Begum are the joint properties of the answering‑defendant and the said Nawabzadi. Only these two individuals are recipients of an allowance from the estate funds under the management of the Court of Wards. In view of the differences that prevail between the two parties the Court of Wards recommended to the Local Government that a settlement, or arbitration, be negotiated, and the Government had informed the Court of Wards that it is authorised to proceed in the matter; perhaps the filing of the suit under review is its method of acting under these instructions."

5. The appellant's averments were given a lie to by Shehzadi Mehar Bano Begum in the replication filed by her. She claimed her exclusive ownership of the house and described the appellant's possession thereof to be unlawful.

6. Shehzadi Mehar Bano Begum expired on the 23rd December, 1963, at Karachi. Her real sister, Shehzadi Shehar Bano Begum, her consanguine brothers, Nawabzada Afzal‑ud‑Din Mirza (respondent 2), Nawabzada Jameel‑ud‑Din Aali (respondent 3), Nawabzada Mirza Hamid‑ud‑Din (respondent 4) and consanguine sisters, Nawabzadi Tahira Bano Begum (respondent 5) and Nawabzadi Nadira Bano (respondent 6), applied on the 18th February, 1964, for being impleaded as plaintiffs, as legal representatives of the late Shehzadi Mehar Bano Begum, alongwith or in place of the Court of Wards. The appellant, though admitted Shehzadi Shehar Bano Begum to be the real sister of Shehzadi Mehar Bano Begum expressed ignorance of the relationship of respondents 2 to 6 with her. The learned trial Court, by its order of the 31st October, 1964, allowed Shehzadi Shehar Bano Begum. and respondents 2 to 6 to be impleaded as plaintiffs and directed them to file amended plaint. The appellant sought revision of the aforesaid order by this Court which disposed of his revision petition (C.R.No.496 of 1964) on the 7th February, 1968, on the basis of compromise between the parties by the following order:‑ "This is a petition for revision against the order dated the 31st of October, 1964, passed by Ar. Muhammad Hassan Sindhar, Civil Judge, Ist Class, Lahore, by which he impleaded respondents Nos.2 to 7 as plaintiffs in the case pending in the trial Court against the petitioner. The petitioner has no objection to the continuance of the suit on behalf of respondents Nos.2 to 7 as plaintiffs provided they are deemed to have been impleaded in the case under Order 1, Rule 10 of the Code of Civil Procedure and pursuant to the application made on the 18th of February, 1964 and provided the entitlement of the parties to the property in dispute is finally determined by the trial Court. In view of the above compromise the petition does not call for determination on merits. respondents Nos.2 to 7 will be deemed to have been impleaded as plaintiffs in the suit under Order 1, Rule 10 of Code of Civil Procedure in pursuance to the application filed by them on the 18th of February, 1964, and the question as to the entitlement of the parties to the property in dispute will remain open for determination of the trial Court. The parties will bear their own costs. The records will be sent back to the trial Court immediately and the parties will appear before the trial Court on the 20th of February, 1968.

8. Shehzadi Shehar Bano Begum and respondents 2 to 6 put in on the 18th November, 1964, amended plaint whose contents were no different from the original plaint of the suit of the Court of Wards. It may be mentioned that Shehzadi Mehar Bano Begum's properties, including the house in dispute, were released from the superintendence of the Court of Wards on the 21st September, 1964, and subsequently the Court of Wards was deleted from the array of plaintiffs.

8. In his written statement to the amended plaint filed by the appellant on the 18th November, 1964, apart from reiterating what he had said in the prior written statement he came out with the plea that he had taken possession of the house on his coming from India in May, 1951, of his own right as its owner and since then he had been in its continuous possession as absolute and full owner. He added that assuming, though not conceding, that the plaintiffs were legally entitled to claim possession of the house he had become its owner by adverse possession and the plaintiffs' right to the property in dispute had extinguished. He pleaded that the suit was barred by res judicata, under the provisions of Order 11, rule 2 and Order XXIII of the Code of Civil Procedure.

9. On the 19th November, 1968, Nawabzada Sher Ali Khan, respondent 1, son of Shehzadi Shehar Bano Begum, made application for being impleaded as plaintiff in the suit because, as he alleged, her mother, Shehzadi Shehar Bano Begum, had gifted away all the property inherited by her from the late Shehzadi Mehar Bano Begum to him and that he had assumed possession of the immovable property which had been inherited by his mother. The appellant opposed the application, denied the factum of gift and contended that Shehzadi Shehar Bano Begum being an alien enemy could not transfer her property to any citizen of Pakistan and on that score the alleged gift was void. He maintained that the property being not in possession of Shehzadi Shehar Bano Begum she could not have made valid gift thereof. He controverted the assertion of Nawabzada Sher Ali Khan that he was in possession of the property in dispute.

10. Shehzadi Shehar Bano Begum expired in India on the 18th January, 1969. On the 14th April, 1969, the plaintiffs moved application under Order XXII, rule 3 of the Code of Civil Procedure for bringing on the record Nawabzada Sher Ali Khan and children of pre‑deceased son and daughter of Shehzadi Shehar Bano Begum as her legal representatives. The appellant put up his opposition to this application. He asserted his own ownership of the house and said that Shehzadi Shehar Bano Begum had no right or interest in the house. He objected to the validity of gift in favour of Nawabzada Sher Ali Khan of her share of the house.

11. On the 13th January, 1970, the learned trial Court ordered that Nawabzada Sher Ali Khan and the children of pre‑deceased son and daughter of Shehzadi Shehar Bano Begum brought on the record as her legal representatives. Therefore, it seems that the learned trial Court did not feel the necessity of deciding Nawabzada Sher Ali Khan's application moved on the 19th November, 1968, for making him a party on the basis of the alleged gift said to have been made by Shehzadi Shehar Bano Begum in his favour. Nawabzada Sher Ali Khan‑joined as plaintiff and second amended plaint was filed on the 23rd February, 1970. The children of the pre‑deceased son and daughter of Shehzdi Shehar Bano Begum were cited as defendants in the amended plaint. They did not choose to contest the suit and were proceeded against ex parte. The case set up in the amended complaint against the appellant was the same as had been made out in the original plaint and the first amended plaint. In the written statement to the second amended plaint the appellant omitted the plea of his adoption by Nawab Qutab‑ud‑Din Khan of Mamdot and Shehzadi Mehar Bano Begum as well as the long drawn out story found in paragraph 5 of his earlier written statement which has been reproduced verbatim above in para 4 of this judgment. However, his defence in other respects remained unaltered.

12. The learned trial Court settled the following issues for determination: ‑ (1) Whether the suit is time‑barred? (2) Whether the plaint does not disclose a cause of action? (3) What is the effect of withdrawal of Court of Wards 'from the suit on the present suit? (4) Whether the amended plaint is not in accordance with the order of High Court dated 7‑2‑1968 and its affect. (5) Whether the suit is barred by res judicata. (6) Whether the suit is properly valued for court‑fee and jurisdiction. (7) Whether plaintiff No.2 has no locus standi to file the suit? (8) Whether the suit property was purchased from the sale proceeds of defendant's property which was sold prior to purchase of property in suit? (9) If issue No.8 is not proved whether defendant has possessed title to suit property by way of adverse possession for a period of 12. years? (10) Whether plaintiff is owner of suit property and is entitled to its possession? (10‑A) Whether Major‑General Sher Ali was gifted away the property by his mother Shehr Bano. If so, is the gift in his favour invalid? O.P.P. (11) Relief.

13. The learned Court treated and disposed of issues Nos.1, 2, 3, 4 and 7 as preliminary issues by its order of the 24th June, 1978. The learned Court recorded verdict on all the issues against the appellant. The correctness of the order of the learned trial Court was challenged by the appellant in revisional jurisdiction of this Court. His revision petition (C.R. No.966 of 1978) was dismissed on the 19th February, 1980. He took the matter to the Supreme Court of Pakistan but his petition for leave to appeal (C.P.L.A. No.707 of 1980) was dismissed by the Supreme Court on the 9th November, 1980.

14. By its judgment Of the 16th April, 1984, the learned trial Court determined other issues Nos.5, 6, 8, 9, 10 and 10‑A in favour of the plaintiffs and decreed the‑suit with costs. It noticed that the plaint of the earlier suit brought by the Court of Wards had been rejected under Order VII, rule 11 of the Code of Civil Procedure for failure to make up deficiency in court‑fee and, therefore, fresh suit was not barred. It observed that in the absence of any evidence in rebuttal by the appellant the market value of the suit property already ascertained by the Commissioner appointed by the Court at Rs.2,56,000 had to be accepted as correct. It considered the appellant's claim of being the adopted son of Nawab Qutab‑ud‑Din Khan of Mamdot and Shehzadi Mehar Bano Begum to be fallacious and baseless. According to the appellant's admission he entered into the possession of the house on the 25th May, 1951. The Court of Wards filed the suit, out of which the present appeal has arisen, on the 18th May, 1963, that is, within twelve years of the appellant's 'taking possession of the house. Hence, the appellant could not be said to have acquired his title to the property through prescription. The learned Court believed that‑.Shehzadi Shehar Bano Begum had gifted away her share in the house to Nawabzada Sher Ali Khan. It accepted the plaintiffs' claim re‑ownership of the house. Feeling aggrieved by the judgment and decree passed by the learned trial Court Sahibzada Shamsher Ali Khan has approached this Court in appeal.

15. The appellant did not produce any direct evidence for establishing his alleged adoption by Nawab Qutab‑ud‑Din Khan of Mamdot and Shehzadi Mehar Bano Begum. He banked upon an extract from the Government of Punjab's file No.131/15/11/3‑A (copy exh.D‑7) containing reference to the effect that the Begum. (Mehar Bano) regarded him as her adopted son to urge for his recognition as adopted son of the Begum. This extract in itself is quite insufficient to establish the factum of adoption or his appointment as heir under the customary law. In the absence of any evidence, oral or documentary, of adoption having been actually made it is not possible to hold that the appellant was the adopted son or was appointed heir of Nawab Qutab‑ud‑Din Khan of Mamdot and Shehzadi Mehar Bano A Begum. It is significant to note that the entire estate of Nawab Qutab‑ud‑Din Khan of Mamdot, as per appellant's admission in the witness box, remained under the superintendence of the Court Wards throughout his life. In such a. situation the Nawab could not, except with the previous sanction of the Court of Wards, as provided by section 15. of the Punjab Court of Wards. Act, 1903, adopt or give permission to adopt any one as his son. No such permission was ever obtained nor has been produced. Shehzadi Mehar Bano Begum was not proprietress of agricultural land in Punjab during the lifetime of Nawab Qutab‑ud‑Din. Therefore, she was inherently incompetent 01 adopt the appellant, as her son. Consequently the story of his adoption as put forth by the appellant is not true. Needless to say adoption would not have helped the appellant to enable him to get anything out of the property left by Shehzadi Mehar Bano Begum. Admittedly inheritance to her estate was to be regulated not by customary law but by the muslim(Shariat) law, ‑which was in force at the time of her death and which does not recognise adoption and does not treat an adoptee as an heir. Indisputably the appellant was riot her heir and could not inherit any share in the disputed house.

16. According to his own pleadings as well as according to the contents of Shehzadi Mehar Bano Begum's letter, dated the 6th‑May,1 1951, Exh.D.3, ‑which the appellant said she had written to him, the house with the permission of Shehzadi Mehar appellant entered the Bano Begum. His continuous stay thereafter could hardly be termed as adverse possession. Even his possession, as per his own admission, commencing on and from the 25th May, 1951, did not cover the period of twelve years till the 16th May, 1963, when the suit was instituted against him. Hence in no manner can he be taken to have) acquired any title by remaining in possession of the property in dispute.

17. The contention of the learned counsel for the appellant that while writing the letter, Exh.D.3, Shehzadi Mehar Bano Begum gifted away the house to the appellant is too specious to be assigned any value. The letter reads as follows:‑ 23, Aikman Road, Lahore, dated the 6th May, 1951. My dearest Ali, Many thanks for your letter of the 2nd. I wish I did know this that you want to come here when I am not here, then I would not have stayed in this heat. I have only one car and you can use it, but you will have to buy one new tyre I think. I have ordered you can have all the house and everything in it. I have key of one room which I will give you if I see you in Karachi. I must leave from there by the 15th. I think it is urgent for you to see me before I leave for England. I am leaving a cheque of Rs.550 for you with the head servant. He is silly and a liar etc. You should not have much to do with him. With love to you and all yours. Mehar Bano Begum." The learned counsel wanted to take advantage of the words "I have ordered you can have all the house and everything in it, I have key of one room which I will give you if I will see you in Karachi' for the purpose of drawing inference of making of gift of. the house by Shehzadi Mehar Bano Begum to the appellant. These words simply inform the appellant that she had ordered her servants to allow the appellant to have all the house and use everything in it and no more. Even if the appellant were to take it as a deed of gift he could hardly reap any benefit therefrom because of absence of its registration. The efforts which Shehzadi Mehar Bano Begum started soon after his coming into the house for ejecting him therefrom leave no room for doubt that she had allowed him the use of the house for a short time and that she had no intention of permitting him to stay for ever.

18. At this stage it may be appropriate to deal with the issue relating to gift of the half share of the house in dispute said to have been made by Shehzadi Shehar Bano Begum in favour of his son, Nawabzada Sher Ali Khan. Shehzadi Shehar Bano Begum was an India National. The entire evidence produced to prove the gift consists of the oral statement of Nawabzada Shei Ali Khan and a copy (Exh. P. 9) of the declaration made by Shehzadi Shehar Bano Begum on the 20th May, 1968, which was countersigned by the Pakistan High Commission. The relevant portion of the statement of Nawabzada Sher Ali Khan touching the gift runs as follows:‑ The declaration said to have been made by Shehzadi Shehar Bano Begum, whose copy in Exh.P.9, is reproduced below:‑ 1.Whereas I Nawabzadi Shehar Bano Begum, the Begum Grand Mother of Pataudi presently residing at Pataudi, am the real sister of the late Nawabzadi Mehr Bano Begum, widow of Nawab Qutabuddin of Mamdot, who died issueless in Karachi in December, 1963.

2. And whereas I Nawabzadi Shehr Bano Begum, as real sister of the deceased Nawabzadi Mehr Bano Begum, inherited a half share of all the property left in Pakistan by her, comprising of two bungalows in the town of Lahore, agricultural land situated in Tehsil Okara, District Sahiwal, besides jewelry securities and deposits in banks in Pakistan as well as in the United Kingdom. (3) And whereas after inheriting the aforesaid property, due to my Iii‑ability to visit Pakistan, I had appointed my son Major‑General Nawabzada Sher Ali Khan as my Attorney for the realization and management of my aforesaid property.

4. And whereas my son and Attorney, Major‑General Nawabzada sher Ali Khan successfully obtained the release in my favour my share of the said property from the Court of Wards, Multan whereafter I in September, 1964 in presence of all my relatives orally gifted all my aforesaid property inherited by me from my deceased sister Nawabzadi Mehr Bano Begum to my son Major‑General Nawabzada Sher Ali Khan who thereafter assumed the full title and possession of the same as full owner thereof.

5. And whereas now some litigation is pending in the Courts in Pakistan In respect of the said property in which I am being impleaded as a party. in my capacity as owner of the said property gifted by me to my son Major‑General Nawabzada Sher Ali Khan.

6. Now therefore for the removal of all doubts I hereby declare that I had gifted all my aforesaid property in Pakistan, inherited by me from my real deceased sister to my son Major‑General Nawabzada Sher Ali Khan, orally at New Delhi in September, 1964 and thereafter had also affirmed this fact in writing.

7. I further declare that by virtue of the aforesaid gift Major General Nawabzada Sher Ali Khan has already assumed full ownership and possession of the said properties and is the full and absolute owner thereof. Now therefore, I am. making this declaration in affirmation of the aforementioned facts. (Sd.) Shehar Bano Begum Attested (Sd.) SDM 20‑5‑1968. Personally know Nawabzadi Shehar Bano Begum and she has signed in my. presence. (Sd.) (S.K.Yadav) Naib‑Tehsildar, Pataudi. There is no direct evidence of making of gift by Shehzadi Shehar Bano Begum. Nawabzada Sher Ali Khan was not present when she made the gift. If Shehzadi Shehar Bano Begum had in fact gifted away her entire share in the house in dispute to Nawabzada Sher Ali Khan in September, 1964, as is apparent from the declaration and the statement of Nawabzada Sher Ali Khan, it is not understood why she failed to mention this fact in the amended plaint she alongwith her consanguine brothers and sisters filed in the learned trial Court on the 18th November, 1964. Had the gift been actually made she, instead of asking for the recovery of possession of the house for herself, would have certainly pleaded that she had divested herself of her share of the house by gifting At to Nawabzada.Sher Ali Khan and that the latter was entitled to get possession of the house in her place and that he should be impleaded as plaintiff in the suit. Moreover. Nawabzada Sher Ali Khan would have taken steps to get entered mutation of gift touching one‑half share of the house ‑in his name. Again he would not have waited for more than four years till the 19th November, 1968, to, move application for being impleaded as a party on the basis of the alleged gift. Absence of any reference of, the gift in the amended plaint which was filed no fewer than two months after the alleged making of gift and inaction of Nawabzada Sher All Khan for reporting the transaction to the revenue officials for purpose of inserting entries in the mutation register as also informing this Court after an inordinate delay of four years cast a grave shadow of doubt on the authenticity of the alienation of. gift. In‑the circumstances the alleged gift cannot be said to have been proved. Nawabzada Sher Ali Khan would no doubt be entitled to the share of her mother's property as her heir but not on the basis A the alleged gift.

19. The learned counsel for the appellant questioned. the competency of Nawabzada Sher Ali Khan to inherit any share out of the property left by Shehzadi Shehar Bano Begum because, as he argued, at the time of her death (which occurred on the 18th January, 1969Y she was living in dar‑ul‑harab and was an alien enemy inasmuch' as India was at ‑war with Pakistan (where Nawabzada Sher Ali Khan resided) In support of his argument he referred to impediments to succession which are listed in At‑Sirajiyyah (in its English translation by Almaric) as follows: ‑ "Impediments to succession are four, 1, Servitude whether it be perfect or imperfect;

2. Homicide, whether punishable by retaliation, or expiable;

3. Difference of religion; and

4. Difference of country, either actual, as between 'an alien enemy and an alien tributary; or qualified, as between a fugitive and a tributary , or between two fugitive enemies from two different states; now a state differs from another by having different forces and sovereigns, there being no community of protection between them. "These subjects are scarcely. mentioned in the Sirajiyyah (translator)." In the ‑first place it may be made clear that on the 18th January, 1969, Pakistan 'was not at war with India. No declaration of war was ever made either by the Government of Pakistan or that of India, Therefore, the place of residence of Shehzadi Shehar Bano Begum at the time of her death could not be treated as dar‑ul‑harab. Even she were to be living in Dar‑ul‑harab her heirs living in Pakistan could not have been deprived of her inheritance because both the parties were believers and the impediments cited above are applicable to the case of only non‑believers as is the consistent view express in Fatawa Alamgir volume 1, Chapter 5', page 433,. Baillie's Digest of Moohummudan Law, 1865 English edition, pages 697, 698, Syed Ameer Ali's Mahommedan Law, volume 11, page 84, Mulls's Mahomedan Law, section 58, 'YlacNaghten's rdoohummudan Law, Chapter 1 section, 1, paras 6 and 7, Wilson's Muhammadan Law, sections 268, 269 Hamilton's Hedaya and Minhaj‑et‑Talibi do not mention such a., impediment at all. Consequently Sahibzada Sher Ali. Khan living in Pakistan was quite eligible to inherit his share out of her mother's share in the house in dispute. He was rightly impleaded as plaintiff to the suit.

20. The plaint of the suit originally instituted was signed by the Commissioner of Multan Division, who constituted. Court of Wards. No exception to institution of suit‑can be taken.

21. The learned counsel could. not seriously press objection to the correctness of the value of the cause as the appellant's evidence‑to dispute the value fixed by the plaintiffs consists of no more than his bare word of mouth.

22. In view of what has been said above the appellant's possession of the house in dispute is unlawful; his position vis‑a‑vis the plaintiffs is that of trespasser. The plaintiffs were in the circumstances entitle to the decree for possession of the house granted to them. This appeal is found to be without any force and is dismissed with costs. A. A. /S‑275/L Appeal dismissed.