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Petitioner: MST. SHAHZADI BIBI VS Respondent: SARDAR BASHIR AHMAD KHAN
P L D 1975 Peshawar 71
P L D 1975 Peshawar 71
Before Qaisar Khan, J
Mst. SHAHZADI BIBI AHD ANOTHERS-----Appellants
Versus
Sardar BASHIR AHMAD KHAN AND 16 OTHERS ---Respondents
Regular First Appeal No. 8 of 1965, decided on 11th March 1974.
(a) Colonization of Government Lands (Punjab) Act (V of 1912)---
-----S. 20-Succession-Tenancy rights created by Act-To be inherited by male lineal descendants-Government being owner of property and also creating tenancy rights could regulate succession to tenancy rights in land covered by Act.
(b) Muslim Personal Law (Shariat) Application Act (XXVI of 1937)---
-----S. 2-Shariat law-A personal law-Applies as far as persons are concerned and not so far as properties are concerned-Property of Muslim propositus wherever and in whatever Province situated-To go to his Muhammadan Law heirs.
Yusuf Abbas and others v. Mst. Ismat Mustafa and others P L D 1968 Kar. 480 rel.
(c) Limitation Act (IX of 1908)---
-----Art. 144-Adverse possession-Ownership-Possession of one co -owner-Possession of other co-owners-Cannot be adverse to others unless clear ouster proved-Person claiming ownership by adverse possession-Burden of proof-Lies on such claimant.
Sardar Khan for Appellants.
Ch. Qadir Bakhsh assisted by Mian Muhammad Yunis Shah and Qazi Muhammad Salim for Respondents Nos. 1 to 6.
Respondent No. 12 and Attorney of Respondent No. 13 in person.
Rest of the Respondents : Ex parte.
Dates of hearing : 8th October 1973; 14th and 28th January 1974.
JUDGMENT
The following pedigree-tables will be of help in understanding the case :-
(A) HAJI AHMAD YAR KHAN | ____________________________________|__________________________ | | | | | | Mst. Mst. Mst. Mst. Niaz Sher Amirzadi Ghulam Wazirzadi Shahzadi Muhammad Ahmact Bibi Aisha Bibi Bibi died | | | P. 2 P. 1 issueless | | | | | | | | |__________________ | | | | | ___________________ |__________________________ | | | | | | | | Mst. Mst. Ghulam Muhammad | | Ghulam Malik Maryam Nawaz | | Sakina Zadi Bibi son | | D. 15 daughter daughter D. 12 | | D. 14 D. 13 | | |
|_____________________________ | | | __________________|_________________________ | | | | | | | Mst: Me. Mst. Mst. Ahad | Ghulam Ghulam Hafiza Ghulam Saeed | Aisha Lainab Bibi Sughran son | daughter daughter daughter daughter D. 7 | D. 11. D. 10 D. 9 D. 8 | | | ____________________________________| | __________________|____________ | | Mst. Ghulam Fatima Mst. Ghulam Fatima Kalan Khurd 1st wife second wife D. 6 __________________________|________________ | | Mst. Sultan Jehan Begum Bashir Ahmad son D. wife D. 2 | | ____________________________________| | | | Mst. Farida Begum Mujib Ahmad Munir Ahmad D. 5 D. 4 D. 3
(B) HAFIZ SHAHNAWAZ ___________________|_________________ | | | Ayyaz Khan Mst. Ghulam Fatima Haq awaz D. 16 Kalan D. 17
Mst. Shahzadi Bibi mentioned at (A) above is the wife of Haqnawaz mentioned in (B) above, while Mst. Ghulam Fatima Kalan, who was the widow of Sher Ahmad mentioned in (A) above, was the daughter of Hafiz Shahnawaz and sister of Haqnawaz and Ayyaz mentioned at (B) above.
2. Haji Ahmad Yar Khan, a resident of D. I. Khan City was the owner of the following immovable properties :-
(i) Land situated in village Habib Wattu of Tank Tehsil of D. I. Khan District.
(ii) Land situated in village Kacha Bilot of D. I. Khan Tehsil.
(iii) Land situated in village Ferozpur of Tehsil and District Multan.
(iv) Land situated in village Jakkarpur of Tehsil and District Multan.
(v) Land situated in village Karank Ganj, Chak No. 70 North, Tehsil Sargodha.
(vi) A Kacha house with 8 plots for houses in village Karank Ganj mentioned above.
(vii) A big residential house situated in D. I. Khan City.
The land and houses mentioned above have been described in detail in the plaint.
3. Haji Ahmad Yar died in 1936 leaving behind four daughters, namely. Mst. Wazirzadi Bibi, Mst. Amirzadi Bibi, Mst. Ghulam Aisha and Mst. Shahzadi Bibi and a grand-son named Basbir Ahmad by his predeceased son Sher Ahmad. His other son Niaz Ahmad had also died during his lifetime, leaving no wife or children.
4. Vide mutations Nos. 226 and 227 attested on 26-3-1938 the land of' Haji Ahmad Yar situated in village Habib Wattu was mutated in the name of the, following persons in the shares noted against each :-
(i) Mst. Ghulam Fatima Kalan widow of Sher Ahmad predeceased son ... ... 2/8th
(ii) Mst. Ghulam Fatima Khurd, widow of Sher Ahmad, predeceased son ... ...
1/8th
(iii) Bashir Ahmad, son of Sher Ahmad, predeceased son ... 5/8th
Vide mutation No. 947 attested on 17-1-1938 his land in village Kacha Bilot was mutated in the names of his heirs as follows :-
(i) Bashir Ahmad, grandson through Sher Ahmad predeceased son ... ... ... 1/3rd
(ii) Mst. Wazirzadi and others, the four daughters ... ... 2/3rd
It may be mentioned here that three of the daughters namely, Mst. Ghulam Aisha, Mst. Shahzadi Bibi and Mst. Amirzadi Bibi gifted their shares in the land situated in village Kacha Bilot in the name of their nephew Bashir Ahmad vide mutations Nos. 967, 968 and 969 attested on 23-9-1937.
Vide mutation No. 659 attested on 11-1-1937 the land of Haji Ahmad Yar in village Ferozpur was mutated solely in the name of his grand-SOM Bashir Ahmad. Vide mutation No. 236 attested on 4-2-43 his land situated in village Jakkarpur was also mutated solely in the name of his grand-son' Bashir Ahmad. Similarly, vide mutation No. 21 attested on 15-5-36 his land, situated in Chak No. 70 Shimali of Sargodha was also mutated solely in the name of his grand-son Bashir Ahmad.
It may be mentioned here that Bashir Ahmad transferred most of his land situated in Chak No. 70 Sargodha in favour of his wife, sons and daughter vide mutations Nos. 66 attested on 5-7-49 and 72, 73, 74 and 75 attested on 2-2-52. Bashir Ahmad also sold some of the land in the said Chak to Sultan and others vide mutations Nos. 67 attested on 20-11-49 and 77 attested on 6-4-52. He also sold some of his land situated in village Ferozpur to various persons vide mutations Nos. 1094 attested on 11-3-49, 1099 attested on 14-1-50, 1102, 1105 and 1107 attested on 16-6-50 and 1116 attested on 11-3-49.
6. It may be mentioned here that on the death of Mst. Ghulam Fatima Kalan her property was inherited by her two brothers Haqnawaz and Ayyaz Khan. Haqnawaz and Ayyaz thereupon claimed the house, situated in D. 1. Khan City on the basis of its sale by Haji Ahmad Yar in favour of Mst. Ghulam Fatima Kalan and also claimed the land in village Habib Wattu which had been mutated in her name on the death of Ahmad Yar vide mutations Nos. 226 and 227. Bashir Ahmad thereupon on 9-4-57 instituted a suit against Haqnawaz and Ayyaz Khan for a declaration to the effect that Mst. Ghulam Fatima Kalan, the predecessor-in-interest of the two defendants had no right either in the house, situated in D. 1. Khan City or the land situated in village Habib Wattu. This suit was decreed on the basis of a compromise on 12-4-1957. On the basis of this decree mutations Nos. 341 and 342 were attested on 9-9-57. By mutation No. 341 the land in village Habib Wattu in the name of Mst. Ghulam Fatima Kalan was mutated in the names of her brothers Haqnawaz and Ayyaz and by mutation No: 342 the said land was mutated from the names of Haqnawaz and Ayyaz in the name of Bashir Ahmad.
7. In the light and presence of these facts on 10-11-58 Mst. Shahzadi Bibi and Mst. Wazirzadi Bibi, two of the four daughters of Haji Ahmad Yar, instituted this suit against Bashir Ahmad, their nephew, for a declaration to the effect that they were entitled to 1/3rd share of the property of their father Ahmad Yar under Muhammadan Law. The suit was for possession by partition so far as the house property was concerned. The heirs of the remaining two sisters, who had in the meantime died, the wife, sons and daughter of Bashir Ahmad to whom he had transferred some property and the heirs of Mst. Ghulam Fatima Kalan, the first widow of Sher Ahmad, were impleaded as defendants.
It may be mentioned here that the vendees from Bashir Ahmad of portions of the land situated in Ferozpur and Chak No. 70 were not impleaded as defendants because the land sold was not claimed and not included in the suit. The suit was only for 1/3rd share of the land which had remained with Bashir Ahmad or his wife and children.
8. Bashir Ahmad, defendant No. 1, his daughter defendant No. 2, his sons defendants Nos. 3 and 4, his wife defendant No. 5 and mother defendant No. 6 contested the suit. Defendants Nos. 7 to 11, the heirs of Mst. Amirzadi Bibi, one of the daughters of Ahmad Yar in their written statement supported the plaintiffs. Sardar Haqnawaz, defendant No. 17 also in his written statement supported the plaintiffs. The heirs of the fourth daughter, namely, Mst. Ghulam Aisha, who were defendants 12 to 15 alongwith Sardar Ayyaz, defendant No. 16 also contested the suit. On the pleas of the contesting parties the following issues were framed :--
(1) Whether Haji Ahmad Yar was the full owner of the disputed property and the plaintiffs being his daughters were entitled to inherit 1/3rd share of his property?
(2) Whether the property situated in Chak 70 Sargodha was the occupancy tenancy of the deceased Ahmad Yar and its devolution being controlled by Punjab Tenancy Act and Colonization of Land Act the plaintiffs stood excluded from its inheritance?
(3) Whether mutations Nos. 66 and 72 to 75 of Sargodha and mutations Nos. 226, 227, 341 and 342 of Habib Wattu (Tank) attested inter se the defendants were ineffective as against the rights of the plaintiffs?
(4) What was the effect of sales (mentioned in para. V) by defendant No. 1 in favour of some persons on the rights of the plaintiffs (Para. V wrongly mentioned. It is probably Para. 6 of the plaint).
(5) Did plaintiff No. 1 gift property mentioned in para. 7 of the plaint in favour of defendant No. 1 ?
(6) Whether plaintiffs were owners in possession of the disputed property and as such entitled to the declaration as regards agricultural land and partition as regards residential property?
(7) Whether the suit for partition had been properly valued?
(8) Whether plaintiffs agreed to transfer some of the property in favour of defendant No. 1 and with respect to the other property they were estopped by their conduct from suing?
(9) Whether defendant No. 1 had matured title to the suit property by adverse possession?
(10) Whether Haji Ahmad Yar had made any gift in favour of Sher Ahmad, if so, what was its effect?
(11) Whether plaintiffs were debarred from demanding a share in the inheritance of Mst. Ghulam Fatima in view of the decision in suit No. 43/1 decided on 12-4-57?
(12) Whether the suit was in proper form?
(13) Whether the Court had no jurisdiction with regard to the property situated in other districts?
(14) Whether the suit was under-stamped on the face of it? The following additional issues were also framed:
(15) Whether defendant 1 had paid Rs. 11,090 to the Government for acquiring the proprietary rights of the property, situated in Chak No. 70 Shimali, if so. what was its effect?
(16) Whether the suit was within time?
9. After recording such evidence of the parties as they wished to adduce, the learned Senior Civil Judge, who tried the suit, by his order dated 8-3-65 held as follows
On issue No. 1 he held that Haji Ahmad Yar was the owner of the disputed properties excepting the house in D. 1. Khan and the land in Chak No. 70 Sargodha, of which he was only the grantee and that the plaintiffs as his Muhammadan Law heirs were entitled to 1/3rd share in his property.
On issue No. 2 he held that the plaintiffs were entitled to their Muhammadan Law share in the property situated in Chak No. 70 Shimali Sargodha but for limitation. On issue No. 3 he held that mutations regarding the land situated in chak No.70 Sargodha were to remain intact in view of the finding on the issue of limitation, but that mutation regarding the land in village Habib Wattu of Tank Tehsil were ineffective as against the rights of the plaintiffs. On issue No. 4 he held that the suit regarding the lands sold by defendant No. 1 in Chak No. 70 Sargodha and village Ferozpur was time-barred and the plaintiffs could not even claim a share in the sale proceeds as the suit was not for the recovery of such proceeds. On issue No. 5 he held that no gift by plaintiff No. 1 in favour of defendant No. 1 was proved. On issue No. 6 he held that plaintiffs were not entitled to decla ration and possession with respect to the properties situated in the Districts of Multan and Sargodha on account of limitation, but were entitled to, declaration with respect to the rest of the properties belonging to Haji Ahmad Yar. On issues Nos. 7 and 14 he held that the value of 1/3rd share of the house property was 23,573 on which amount the plaintiffs were ordered to make up the deficiency in court-fee. On issue No. 8 he held that the plaintiffs had neither transferred any property to defendant No. 1 nor were they estopped from suing. On issue No. 9 he held that defendant No. 1 had become owner by adverse possession of properties situated in the Districts of Multan and Sargodha. On issue No. 10 he held that Haji Ahmad Yar had gifted the house situated in D. I. Khan City in favour of his son Sher Ahmad and was not, therefore, the owner of the said house at the time of his death. On issue No. 11 he held that the decision in Suit No. 43 had no effect on the right of the plaintiffs as they were not parties to it. On issue No. 12 he held that the declaratory suit was only competent so far as the lands situated in D. I. Khan District were concerned, but was not competent regarding properties situated in Sargodha and Multan Districts. On issue No. 13 he held that the civil Court at D. I. ,Khan had jurisdiction regarding the whole of the disputed properties. On issue No. 15 it was held that this issue did not arise as the plaintiffs had no right in the property situated in Chak No. 70 Sargodha. On issue No. 16 he held that the suit regarding the land situated in D. I. Khan district was within time but it was not within time with respect to the properties situated in Multan and Sargodha Districts.
As a result of the above he therefore, decreed the suit with respect to the lands situated in villages Habib Wattu and Kacha Bilot of the D. I. Khan District and dismissed the suit regarding the rest of the properties, leaving the parties to bear their own costs.
10. Two First appeals have been preferred against the judgment and decree of the learned lower Court; one by Bashir Ahmad, his mother, his widow, his daughter and his sons, defendants 1-6, and the other by the two plaintiffs. Bashir Ahmad and others have in their appeal prayed for the dismissal of the suit of the plaintiffs in toto, while the plaintiffs in their appeal have claimed that they were also entitled to their Muhammadan Law share in the house situated in D. I. Khan City and the properties situated in, Multan and Sargodha Districts. This order will dispose of both the appeals.
11. Mr. Sardar Khan, Advocate for the plaintiffs-appellants Mst. Shahzadi Bibi etc., Ch. Qadir Bakhsh, Advocate assisted by Mian Muhammad Yunis Shah and Qazi Muhammad Salim, Advocate for Bashir Ahmad and others, defendants-respondents 1 to 6, respondent No. 12 and attorney of respondent No. 13 in person heard and the record perused. The rest of the respondents were proceeded ex parte.
After hearing the arguments, the case boiled down to the decision of then following points :-
(1) Whether Haji Ahmad Yar on his death also left the house situated in D. I. Khan City?
(2) Whether the properties situated in Chak No. 70 Shimali of Sargodha District belonged to Haji Ahmad Yar and the plaintiffs could claim their Muhammadan Law share in it?
(3) Whether the suit was time-barred and defendant No. 1 had matured title by adverse possession?
(4) Whether the properties of Haji Ahmad Yar in Multan and Sargodha Districts were to be inherited by his heirs under custom or Muhammadan Law?
(5) Whether the plaintiffs or the other two daughters of Ahmad Yar had transferred their shares in the properties situated in D. I. Khan District in favour of defendant No. 1 ?
(6) What was the effect of sales and transfers made by defendant No. 1 in favour of a number of persons on the rights of the plaintiffs?
12. Now so far as point No. 1 is concerned, there is no dispute between the parties that the big house situated in D. I. Khan City originally belonged to Haji Ahmad Yar. There is, however, evidence on file to show that at he time of his death Haji Ahmad Yar was not the owner of the house as he had divested himself of its ownership. Certified copy of the registered deed dated 5-3-32 at pages 332 and 333 of the file shows that Haji Ahmad Yar had transferred this house in favour of his son Sher Ahmad. On the death of Sher Ahmad his son Bashir Ahmad, defendant No. 1 was his sole heir under custom and the house, therefore, became the property of Bashir Ahmad, defendant No. 1. There is no doubt that by another registered deed dated 3-4-34 (certified copy at pages 175-177 on file) Haji Ahmad Yar had again transferred this house in favour of Mst. Ghulam Fatima Kalan, the wife of his deceased son Sher Ahmad, but then even in this deed it was specifically mentioned by him that the house belonged to Sher Ahmad whose sole heir under custom was his son Bashir Ahmad defendant No. 1. In the circum stances Ahmad Yar had no right to transfer the house to Mst. Ghulam Fatima Kalan. Besides, in 1957 Bashir Ahmad instituted a suit against the heirs of Mst. Ghulam Fatima Kalan, namely, Haqnawaz and Ayyaz who are defendants in the present suit for a declaration to the effect that he was the owner of the house and its transfer by Haji Ahmad Yar in favour of Mst. Ghulam Fatima Kalan was void. This suit bearing No. 43 of 1957 was decreed in favour of Bashir Ahmad, defendant No. 1. In the light of these facts Ahmad Yar could not, therefore, be held to have left this house on his death in 1936. The finding of the learned lower Court on this point is, therefore correct, which is upheld.
13. So far as the second point is concerned, there is no dispute between the parties that the land in dispute situated in Chak No. 70 Shimali Sargodha belonged to the Government and that it had been given by the Government to Haji Ahmad Yar. The only point for determination in this connection is as to what rights had been given by the Government to Haji Ahmad Yar. This transfer or grant by the Government was made by an order dated 26-2-1909 of the Colonization Officer as is evident from certified copy of mutation No. 1 (Exh. P. W. 2/27 at page 194 etc. of the file) attested on 8-4-1910. . This order, however, is not forthcoming, but the order passed on the mutation shows that the ownership rights bad not been given to Haji Ahmad Yar, and that be bad only been made a tenant under the Government. An unattested copy of a letter of the Colonization Officer dated 1-3-1909 at page 213 of the file indicates that the land was given under the Government Tenants (Punjab) Act III of 1893. This fact can also be gathered from the fact that the land was sold to defendant No. 1 under the provisions of the Colonization of Government Lands (Punjab) Act V of 1912, which Act had repealed the Government Tenants (Punjab) Act III of 1893. Under Act III of 1893 only tenancy rights could be given to anybody and not ownership rights. In the circumstances Haji Ahmad Yar was, therefore, a tenant of the disputed land in Chak 70 Shimali under the Government. The succession to such land before 1951 was governed by section 20 of Act V of 1912 and according to the said section the tenancy rights were to be inherited A by the male lineal descendants. Since the property belonged to the Government which created the tenancy rights, it had, therefore, the right to regulate the succession to the said tenancy rights which is granted. The land was, therefore, rightly mutated in the name of defendant No. 1 on the death of Haji Ahmad Yar vide mutation No. 21 attested on 15-5-36. It is also worth mentioning that according to the provisions of Act V of 1912 this land was sold by the Government to defendant No. 1 by a registered deed dated 31-5-1948, on the basis of which mutation No. 65 (copy at page 345 of the file) was attested in the name of defendant No. 1. The daughters of Haji Ahmad Yar could not, therefore, claim any share in this land and the finding of the lower Court on this point too is, therefore, upheld.
14. So far as the third point is concerned, point No. 44 has bearing on it and I would, therefore, dispose of point No. 4 first. Muslim Personal Law (Shariat) Application Act was in force when Haji Ahmad Yar died in 1936. His property was, therefore, to be inherited by his heirs according to Muhammadan Law. Learned counsel for defendant No. 1, however, contended that Muhammadan Law had not been enforced in the Punjab uptil 1948, and that since Muhammadan Law was not in force in Punjab in 1936 when Haji Ahmad Yar died, his properties in Multan and Sargodha were to be inherited by his heirs under custom, which was in force in the Punjab. The point for determination in this respect, therefore, is as to whether the property of Haji Ahmad Yar in Punjab was to go to his Muhammadan Law heirs or customary heirs. In the first case the daughters would get a share in his property in the Punjab, while in the second case they would not get any share and the whole of his property would go to defendant No. 1 under custom. In this connection I am of the opinion that Shariat Law is personal law and, it has application so far as persons are concerned and not so far as properties, are concerned. Haji Ahmad Yar was a resident of D. I. Khan and died there and in view of the Muslim Personal Law (Shariat) Application Act of 19371 his inheritance was to be governed by Muhammadan Law. His property was, therefore, to go to his Muhammadan Law heirs wherever situated. The' aforesaid view finds support from the authority reported in Yusuf Abbas and others v. Mst. Ismat Mustafa and others (P L D 1968 Kar. 480). I, therefore, hold that the property of Haji Ahmad Yar situated even in Punjab was to be inherited by his heirs under Muhammadan Law and not under custom.
15. Now coming to the third point, when the property of Haji Ahmad Yar was to be inherited by his heirs on his death under Muhammadan Law, then the heirs became joint owners and the possession of one co-owner was to be taken as possession of the other. It could not be adverse to the others unless clear ouster was proved. Article 144 of the Limitation Act would, therefore, be applicable and it would be for defendant No. 1 to prove that he had become owner of the disputed land by adverse possession. In the light: of the above I, therefore, take up the lands in each village separately:--
(i) The land situated in village Kacha Bilot of the D. I. Khan Tehsil was mutated in the names of the Muhammadan Law heirs according to Muhammadan Law in the first instance and the question of adverse possession of defendant No. 1 with respect to it does not arise.
(ii) The land situated in Habib Wattu no doubt was mutated in the names of the two widows of the predeceased son of Haji Ahmad Yar and his grand-son defendant No. 1 in 1938 and defendant No. 1 obtained a decree against the heirs of one of the widows of his predeceased son, namely, Mst. Ghulam Fatima Kalan, but then there is nothing on the file to show that defendant No. 1 did any overt act to assert his hostile title as against three of his aunts, namely, Mst. Wazirzadi, Mst. Ghulam Aisha and Mst. Amirzadi, as they, their husbands or other heirs were not parties to the said suit. The case of Mst. Shahzadi Bibi, plaintiff, however, stands on a different footing. She had been married to Haqnawaz, defendant No. 1 before the death of Haji Ahmad Yar and Haqnawaz has admitted in his statement that Mst. Ghulath Fatima Khurd, mother of defendant No. 1 had appointed him as her attorney for looking after the property of defendant No. 1 and that he looked after the property of defendant No. 1 as such uptil 1947 when defendant No. 1 took over charge of his property from him. This Haqnawaz is a literate man and has remained a Municipal Commissioner for a long time. In the circumstances it is highly improbable almost impossible to believe that Mst. Shahzadi Bibi his wife could not have come to know that the property of her father had not been mutated in her name. This land in village Habib Wattu had been mutated partly in the name of the sister of Haqnawaz, defendant No 17, who is husband of Mst. Shahzadi Bibi plaintiff and the said land was inherited by Haqnawaz and his brother on the death of their sister Haqnawaz and Muhammad Ayyaz were sued by defendant No. 1 for declaration regarding this land and Haqnawaz and his brother…
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