2004 PLP 1524 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Eada Khan son of Yaqub Khan, caste Leghari Baloch, resident of Thatha Leghari, Tehsil Taunsa, District Dera Ghazi Khan has filed this petition for leave to appeal against the judgment, dated 15-7-1999 of Lahore High Court, Multan Bench passed in Civil Revision No. 375/D of 1999. With the aforesaid judgment all the three Courts below happened to grant decree in favour of Mst. Ghanwar and others.

2. The property in dispute measuring 695 Kanals 12 Marlas in Mauza Jhok Bodo, Tehsil Taunsa initially belonged to one Tagga. The respondents claimed that Tagga was survived by a son named Sohna and a daughter Mst, Ghanwar. Sona also allegedly died about two months after the death of his father. The inheritance mutation of Tagga was attested on 15-6-1931 in favour of defendants Nos. 1 and 2, the uncles of the lady. She filed a suit claiming her Shari share in the property of her father saying that her possession over the property has throughout been accepted by the petitioner/defendants but recently when she intended to sell the property, they posed a resistance whereupon she consulted the Revenue Record and came to know of unlawful attestation of inheritance mutation.

3. The defendants contested the suit, the parties adduced their evidence and on 12-6-1998 the same was decreed in the trial Court. Appeal of the petitioner failed before the Additional District Judge, D.G. Khan on 30-7-1999 and so was the fate of revision before the High Court. It is pertinent to mention that all the relevant questions of fact have been decided against the petitioner concurrently by all the three Courts below and hence this Court would refrain from interfering with the concurrent decisions.

4. Learned counsel for the petitioner raised the objection that the parties were governed by custom and under such custom the female could not inherent. That such objection was raised but no issue thereabout was framed by the trial Court in specific. We are afraid, the objection is unfounded because the issues were framed in the presence of the parties as well as their counsel and they had raised no other issue before the trial Court. Moreover, the petitioner had placed documentary evidence with regard to the existence of custom which is indicative of the fact that they were alive to their defence and had adduced evidence in support thereof. It is a settled principle of law that if once the parties are alive to the contentions raised and when once evidence is adduced in support of such contentions, the framing or non-framing of issues loses significance.

5. The documents .aforesaid concerning the prevalence of custom cannot be relied upon because those pertain to Khosa and Qaisarani Tribes of Baloch's and had no concern with Leghari tribe of the party. It is again a settled question of law that custom and the existence thereof is a question of fact and is bound to be proved strictly qua the tribe involved and not others. The petitioner therefore, had failed to prove that any such custom depriving females from inheritance had existed in the tribe at the time of opening of succession. Thus, the lady/daughter of Tagga would be entitled to Shari share of inheritance as decreed in her favour. When once the custom is not proved, the property would devolve in accordance with the normal principles of Islamic inheritance and thus, the daughter of Tagga would automatically become a co-sharer in the property. Neither any adverse possession nor any limitation could run against a co-sharer and hence the suit also was within time In the absence of anything proved to the contrary. we would be constrained to accept the version of the plaintiff lady that her possession had never been objected to by the opposite party and the same was resisted only when she wanted to sell the property sometime prior to the institution of suit.

6. Another objection was raised to the effect that Mst. Ghanwar was not daughter of Tagga. All the three Courts below have concurred to the contrary and in favour of the lady. She produced birth entry Exh. P.9 and Parat Nikah Exh. P.10 in addition to having submitted her own self in the witness-box for cross-examination and having examined one Imam Bakhsh who supported her version. Such evidence was not rebutted by the present petitioner/defendant.

7. Consequently, finding no merit in the petition, it is hereby dismissed and leave to appeal is refused. S.A.K./E-13/S Leave refused.