1986 PLP 1094 (SCMR)

NASIM HASAN SHAH, J.‑‑The dispute relates to land measuring 710 Kanals 8 Alarlas situate in village Ahdian, Tehsil Ferozewala, District Sheikhupura. The said land originally belonged to one Sher Muhammad who had two wives, namely, Mst. Jawai and Mst. Mandan. He had two sons from Mst. Jawai, namely, Shah Muhammad and Fateh Din plaintiffs/ petitioners and one son, namely, Rehmat Ali, from Mst. Mandan. On the death of Sher Muhammad, the land devolved upon the said three sons in equal shares under the customary law. Rehmat Ali died unmarried and issueless on 6‑11‑1943. On his death, the land

? Meanwhile, the petitioners Shah Muhammad and Fateh Din filed a suit on 9‑11‑1974 in the civil Court for a declaration to the effect that they were owners of the land as successors of Sher Muhammad and prayed for an injunction against Mst. Mandan and her two daughters Mst. Maqbullan and Mst. Khairan to restrain them from interference with their possession. The suit was resisted on behalf of Mst. Mandan on the ground that the land devolved upon her according to law. On the pleadings of the parties, three issues were framed; out of which issue No. 2 is the crucial issue which was to the following effect:‑‑ (2) Whether the plaintiffs were the valid legal heirs of the deceased, Rehmat Ali, at the time of his death? The trial Court, by its judgment, dated 29‑10‑1976, dismissed the suit holding Mst. Mandan to be entitled to succeed to a life estate under custom. The petitioners appealed and their appeal was accepted by the Additional District Judge, Sheikhupura by his judgment, dated 28‑3‑1977. He was of the opinion that the plaintiffs were entitled to succeed under the general principle governing succession amongst agriculturists to the effect that where a male line of decendants dies out it is treated as having never existed and succession thereafter is reckoned with reference to the last male owner, who dies leaving no male decendants. Accordingly, he held that the petitioners, as heirs of the last male owner Sher Muhammad, were entitled to the land in suit. He, therefore, decreed the suit. Feeling dissatisfied, Mst. Mandan and Mst. Maqbullan filed a Regular Second Appeal in the Lahore High Court. This was heard by a learned Single Judge who was pleased to accept it, vide judgment, dated 2b‑4‑1985. He held that whatever be the position regarding succession under general custom, a special custom existed in the case of the parties according to which if a person dies issueless and without a widow and he has step‑brothers, then his mother succeeded to the property. On this view of the matter, the learned Judge set aside the decree and judgment of the Additional District Judge and restored that of the learned trial Court. Hence this petition. Sh. Ghias Muhammad, learned counsel for the petitioners, submitted that the judgment of the learned High Court was based on a special custom which was not pleaded by the defendants in the written statement and further submitted that a decision in favour of a party cannot be made to rest on a ground which has not been pleaded by it. This plea is correct so far as it goes, but is not quite relevant in the context of the instant case. Here, the relevant issue was whether the plaintiffs were valid legal heirs of the deceased Rehmat Ali at the time of his death. The issue was not whether Rehmat Ali was governed by the general principle of custom applicable to agriculturists in the matter of succession at the time of his death or whether a special custom governed his succession; the issue merely was as to who were the valid heirs of the deceased Rehmat Ali on his death. The plaintiffs, in order to establish that they were his valid heirs, relied upon the general customary principles governing succession amongst agriculturists, while the respondents relied upon a special custom prevailing in their family. In evidence, it was established that the special custom being claimed by the respondents was being adhered to amongst the parties. No attempt was made before us to show that this finding was erroneous or was not based on the evidence on record, but the attempt merely was to induce us to ignore it, because no specific issue to this effect had been framed. This approach, besides being highly technical and artificial, does not take into account the full amplitude and breadth of the issue which was actually framed. The upshot is that there is no force in this petition. It is, accordingly, dismissed. M. I. Leave refused.