1983 PLP 1242 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑Through this petition leave is sought to appeal against the judgment and order of Lahore High Court, dated 31‑1‑1983 passed in R. S. A. No. 33 of 1983.

2. The parties migrated from India after the partition. On the death of their predecessor‑in‑interest Alia the property devoted upon Rahim Bakhsh and Makhay Khan his two sons being the only legal heirs. After migration to Pakistan Rahim Bakhsh got 208 Kanals and 8 Marlas of land in Mauza Shahpur, Tehsil and District Sheikhupura which was allotted by the Settlement and Rehabilitation authority to him as a Displaced and Claimant person against his verified claim in lieu of his land abandoned by him in Mauza Bodoowal, Tehsil Batala, District Gurdaspur (India). Rahim Bakhsh died but left behind no male issue. He had only two daughters Mst. Zainab Bibi petitioner No. 1 and Mst. Ghulam Fatima who predeceased him. Abdul Ghafoor petitioner No. 2 is the only son of the said Mst. Ghulam Fatima.

3. Rahim Bakhsh during his lifetime, it is stated, gifted away his whole property in favour of Mst. Zainab Bibi petitioner No. 1 and Abdul Ghafoor petitioner No. 2 in equal shares on 1‑6‑1973 and in this behalf mutation of gift No. 37 dated 9‑6‑1973 was sanctioned. Respondent No. 1 Muhammad Hanif alongwith Muhammad Ishaq, Muhammad Jamil and Muhammad Rafiq filed a declaratory suit challenging the authority of the donor to gift away his entire property without any legal necessity ; on the ground that Rahim Bakhsh the donor was not a full‑fledged owner of the property left behind by him in India. The assertion was that he inherited the property in India which was ancestral one and as such he was bound by custom. The respondent being the reversioners the gift made by Rahim Bakhsh could not affect their rights as such adversely in the land in dispute.

4. After the death of Rahim Bakbsh on 1‑12‑1974 respondent Nos. 1 to 4 applied for amendment of the plaint which was allowed by the trial Court on 10‑3‑1975 and fresh plaint was filed on 14‑4‑1976.Wherein they gave up the previous claim of declaration in respect of the gift and instead sought joint possession of the suit land to the extent of 3rd alongwith the petitioners and other legal heirs of the predeceased daughter of Rahim Bakhsh who are respondents Nos. 5 to 9.

5. The learned trial Judge, vide judgment, dated 13‑6‑1981 dismissed the suit of the respondents with costs. They filed an appeal before the learned District Judge which was decided by the learned Additional District Judge who reversed the finding of the learned trial Court on Issues 1, 2, 3 which are as follows :‑ (1) Whether this land is ancestral qua the plaintiff and Rahim Bakhsh O. P. P. (2) Whether the plaintiff and Rahim Bakhsh was governed by custom, if so its effect O. P. P. (3) Whether Rahim Bakhsh alienated the land in dispute with consideration and for legal necessity O. P. D. The petitioners then filed R. S. A. No. 33/1983 in the Lahore High Court which was dismissed vide the impugned judgment 31‑1‑1983.

6. Learned counsel for the petitioners Mr. Zakiuddin Pat contended that there is no evidence on record whatsoever to show that the landed property belonging to Alia was inherited by his heirs under the custom. The fact admitted by both the parties that the aforesaid property of Alia was inherited by his two sons in equal shares proves that the Shariat Law instead of Custom was followed by the family of Alia; the learned Court had, therefore, drawn wrong inference from the material which is not, available on the record. It was further contended that the property in India was inherited by the two sons in equal shares after the death of 11ia and had the property been inherited under the custom then it would have remained with the eldest son after the death of his father. In such circumstances no adverse inference can be drawn against the petitioners; according to the statement of P. W. I concerned Patwari from the Central Record Room who proved the contents of Exh. P. 1 interrogatories sent to the Central Record Room by the Civil Court, there is no entry in the relevant column showing that Alia or his successors‑in‑interest were governed by custom. It was lastly contended by the learned counsel that after the enforcement of Shariat Application Act, 1948 and West Pakistan Muslim Personal Law Shariat Application Act, 1962 it cannot be held that the landed property as obtained by the respective parties in lieu of" their land abandoned in India was governed by custom.

7. We have examined the contentions raised by the learned counsel for the petitioners. A reference to the evidence brought on the record would show that the petitioners have failed to prove that they were Governed in India by the Shariat Law. P. W. 2 Muhammad Shafi, Ibrahim, Muhammad Jamil all support the version of the respondents regarding the rule of custom applicable to their case. Abdul Ghafoo petitioner appeared as P. W. 1 failed to establish that Alia his grand‑father as governed by Shariat Law. During cross‑examination he also admitted that the land left behind in India was ancestral. The interrogatories Exh. P. L. was referred to by the learned counsel for the petitioner parti. cularly Question No. 5 but we find that the answer is not in favour of the petitioners was there is no clear cut question regarding the application of the Shariat Law to the parties. As regards the other contentions we find that the same were not raised before the learned Courts below nor any issues were framed thereon. Hence, was consider that this petition has no force and is, consequently, dismissed. M. Z. M. Petition dismissed.