On 1.7.1968 the appellants filed a suit against the respondents. In the plaint, it was stated that Nabi Bakhsh was the last male owner of the suit land, detailed in the schedule annexed to the plaint. He was survived by two sons, namely, Noor Muhammad and Karim Bakhsh and a daughter Sabal Mai.
The appellants and Mst. Amna are the children of the said Sabal Mai who died about 5 year prior to the filing of the suit. Mst. Sabal was an illiterate Pardahnashin woman. She had good relations with her brothers. During the last days of Nabi Bakhsh, the land was looked after by his sons and they continued to do so after his death. She was assured that mutations of inheritance have been got attested in her favour as well. Her share in produce was also being paid. 5/6 months prior to the institution of the suit, a dispute arose between the parties and the respondents denied their title.
They checked up the records and it revealed that neither their mother nor the appellants are recorded in the revenue records and that their mother was excluded from the inheritance mutation. They sought a declaration accordingly. The respondents in their written statement denied that Mst. Sabal was daughter of Nabi Bakhsh. According to them, she was the daughter of a wife of Nabi Bakhsh from previous husband. It was further contended that even if she is proved to be a daughter of Nabi Bakhsh then according to the custom she was not entitled to inherit the estate of Nabi Bakhsh. Following issues were framed by the learned trial Court:--
1. Whether the suit is maintainable in the present form? O.P.P.
2. Whether the suit land was owned by Nabi Bakhsh deceased? O.P.P.
3. Whether Mst. Sabal wag the daughter of Nabi Bakhsh deceased? O.P.P.
4. Whether the suit of the plaintiffs is time barred? O.P.P.
5. Whether the defendants became owner of the suit land by virtue of adverse possession for a period of more than 12 years? O.P.D.
6. Whether Nabi Bux deceased was governed by custom in matter of inheritance and alienation? If so, what was that custom? O.P.D.
7. Whether the plaintiffs are the heirs of Mst. Sabal? If so what are their shares in the suit land? OPD.
8. What is the value of the suit for the purposes of Court fee and jurisdiction? O.P. Parties.
9. Relief.
Evidence of the parties was recorded. All the issues were found in favour of the appellants and the suit was decreed on 30.9.1969. A first appeal filed by the respondents was allowed by learned District Judge, Dera Ghazi Khan, on 24.1.1972. I may note here that the learned District Judge affirmed the findings of the learned trial Court that Sabal was the daughter of Nabi Bakhsh but reversed the findings of the learned trial Court on Issue No, 6.
2. Learned counsel for the appellants contend that it is the plea of the respondents and the learned District Judge has also proceeded on the premises that Sarkanis are a branch of the Tuman of Baluch Legharis. They referred to the cases of Eada Khan v. Mst. Ghanwar and others (2004 S.C.M.R.
1524) and Ghulam Rasool and 7 others v. Rashid and 4 others (2005 M LD 1782) to urge that the Legharis did not follow custom. Reliance has also been placed on the case of Allah Diwaya v. Mt.
Bakht Waddi and another (AIR 1942 Lahore 207). Learned counsel for the respondents, on the other hand, urges that the custom has been duly proved to exist and consequently the fact that late Nabi Bakhsh Sarkani was governed by custom in the matter of succession has been established.
He also questions the finding of the learned Courts below as to relationship between Mst. Sabal and Nabi Bakhsh deceased.
3. I have gone through the trial Court records, with the assistance of the learned counsel for the parties. Now apart from oral evidence and if I may say's the witnesses produced by the appellants particularly PW-2 and PW-3 have gone uncross-examined with reference to their statements that Nabi Bakhsh was following Shariat, scores of instances in the form of mutations have been produced by both the parties.
4. However, upon a reading of the entire evidence on record, I do find that the claim of the respondents is that their tribe is from the Tauman of Nawab Jamal Khan Leghari and the custom was followed accordingly. This has also been believed by the learned District Judge in the impugned judgment with reference to Mr. Ryter's Book "Tribes and clans of the Derajat Division".
Now in several judgments reported in the Punjab Record of 1908 referred to at page 208 of the said judgment in the case of Allah Diwaya (AIR 1942 Lahore 207), it has been held after detailed inquiries that among the various tribes of Balouchis, daughters succeed to their father's ancestral property in accordance with Muhammadan law in the presence of near male agnatic heirs. In fact, the finding is that except Khosas and Qaisaranis all other Baluch tribes follow Shariat. Now the trend of the judicial authority in Punjab had throughout been, that where a custom recorded in the Rawaj- iam affects adversely the rights of females who had no opportunity whatsoever of appearing before the revenue authorities, the initial presumption in favour of its correctness is considerably weakened and a few instances are sufficient to rebut it. To my mind, the entries in the Riwaj-i-am referred to by the learned District Judge do stand rebutted by the instances relied upon by the appellants.
5. This case was filed in this Court in the year 1972 and ever-since the matters have undergone a complete revolution. Be that as it may, even with reference to the old law, in my humble opinion, the judicial trend consistently had been that the burden would be upon the person setting up the custom excluding a female from inheritance. Reference be made to the Full Bench judgment of this Court in the case of Karam Dad and others v. Mt. Muhammad Bibi and others (AIR 1942 Lahore 1). I, therefore, reverse the finding of the learned District Judge on the said issue and restore that of the learned trial Court.
6. Now so far as the finding, on issue No, 3 is concerned, I have examined the evidence, with the assistance of the learned counsel for the parties and do not find any mis-reading or non-reading thereof by the learned Courts below while holding the said lady to be the daughter of Nabi Bakhsh deceased.
The R.S.A. is accordingly allowed. The impugned judgment and decree dated 24.1.1972 of the learned District Judge, Dera Ghazi Khan, is set aside while the one passed by the learned trial Court on 30.9.1969 is restored but with no orders as to costs.
7. The records of the learned trial Court be remitted back immediately.