' AFTAB HUSSAIN, J.-The respondents' suit for possession of the property left by Karam Illahi in their capacity as his heirs was dismissed by the learned trial Court on 25th July, 1975, but that judgment and decree was set aside by the learned Additional District Judge, Sheikhupura, on 23rd June, 1976.
2. Hence this second appeal.
3. The property in dispute was admittedly allotted under the Rehabilitation Settlement Scheme to Karam Illahi who died on 13th November, 1956, without leaving any issue. On 12th January, 1957, the Patwari made an entry of Mutation No, 136 (Exh. P. B.) at the instance of Muhammad Sharif who claims to be a brother's son of Karam Illahi. By this mutation, which was attested on 7th February, 1957, the property of Karam Illahi was mutated, as having devolved upon Muhammad Sharif, as a brother's son and Mst. Jainan as widow of Karam Illahi. It is, however, worth noticing that this mutation was attested on the statement of the Lambardar, in the absence of Muhammad Sharif as well as Mst. Jainan. On 19th September, 1961, a report for review of this mutation was made on the ground that Muhammad Sharif was not connected with Karam Illahi. Reference for review was made by the Assistant Collector on 23rd September, 1961, to the Collector who refused to grant permission to review vide his order dated 28th May, 1968, in Exh. P. B. Is admitted by the respondents that this review reference was not made on the application of the respondents but was, in fact, made by the Revenue Officers suo motu. The case of the respondents is that though they did not file any application for review they did put in appearance before the Collector at the time when he refused to grant permission for review. They filed a revision petition before the Additional Commissioner not only against the original order of mutation dated 7th February, 1967, but also against the order of the Collector refusing permission for review dated the 28th of May, 1968. The Additional Commissioner dismissed this revision vide Exh. D. 4 on the ground that the petition suffered from laches and the respondents had approached him after a very long time.
4. The respondents filed this civil suit for possession of the property left by Karam Illahi on the 2nd July, 1969, on the allegation that this mutation was obtained by the appellant Muhammad Sharif by making an incorrect statement and by playing fraud upon the Revenue Authorities. Later on, on the 14th October, 1972, after more than three years from the filing of the plaint and after the evidence of the parties on the entire case had been recorded, the respondents submitted an application for permission to amend the plaint to enable them to add a ground that both the defendants (apellants) bad been paying batai to them and had been acknowledging them as the owners of the land, but they had ceased to pay Batai since 1968. This application was allowed and an amended plaint in which this particular plea was taken, was filed before the Court. Thereafter, the evidence was re-opened and further witnesses on that particular question were examined by the parties.
5. The learned trial Court framed the following issues :-
(1) Whether the Court has no jurisdiction, O. P. D.
(1-A) Whether the defendants have become owners of the suit land through adverse possession ?
(2) Whether this suit is time-barred ?
(3) Whether plaintiffs are heirs of Karam Illabi, if so, what is their share in the inheritance ?
(4) Whether this suit is not properly valued ?
(5) Relief.
' Except Issue No, 4, all the issues were decided against the plaintiffs-respondents. As a result of these findings the learned trial Court dismissed the suit of the plaintiffs. The learned trial Court held, on the basis of the evidence on record, that Alloo was brother of Karam Illahi and consequently, Muhammad Sharif son of Alloo had the right to inherit Karam Illahi obviously being a closer residuary than the respondents who though had descended from the same great grand father but their relationship was remoter. It was held that Mst. Jainan, mother of Muhammad Sharif had re- married after her husband's death and she was, therefore, a widow. The jurisdiction of the civil Court was held to be barred. The suit was further found to be barred by limitation, since as against mutation attested on 7th February, 1957, the suit was filed on 2nd July, 1969.
6. The learned Additional District Judge reversed all these findings. He held that the civil Court had jurisdiction in this case. He found that the pedigree-table did not connect the defendant-appellant Muhammad Sharif with Karam Illahi. He also found that Mst. Jainan was not the widow of Karam Illahi. The question of bar of limitation was also decided against the appellants on the ground that there was evidence that Muhammad Sharif had been paying Batai of the suit land. The question of bar of jurisdiction of the civil Court need not detain me since it appears from the record that the name of Karam Illahi appeared in the ownership column without any reference to the holding of the property under the Rehabilitation Commissioner or the Central Government.
' It, therefore, appears that Karam Illahi had paid the full fee' consequent upon the allotment and, therefore, was a confirmed allottee. The civil Court's jurisdiction was not, therefore, barred as held in Mst. Ghulam Fatima v. Muhammad Hussain' and others (1).
7. The first question, however, on merits is whether there is evidence on the record to connect Alloo as a brother of Karam Illahi and whether the finding arrived at by the learned Additional District Judge is a finding of fact.
8. To start with, the learned Additional District Judge made reference to the statement of Muhammad Sharif in which in cross-examination he admitted the respondents to be collaterals of Karam Illahi. He held this to be a clear cut admission which established the plaintiffs' case. But what Muhammad Sharif had stated was that he was a real nephew of Karam Illahi. It is not, therefore, an admission but an assertion that these persons had no interest in the property. Clearly the learned Additional District Judge has not read the whole of the evidence and has ignored that particular portion of the evidence which disproved it to be a case of admission.
9. Exhibit P. 1 is the pedigree-table of Sher All Shah who was the anestor of the respondents and Karam Illahi. The name of Muhammad Sharif son of Alloo appears in-between the entries of the genealogical tree of Sher Ali Shah. On both the sides are given the names of descendants of Sher All Shah with marks to show their connection. It is only in the case of Alloo that there is no mark denoting any relationship. It is on this basis that the learned Additional District Judge held that Alloo was not at all connected with Karam Illahi.
10. When I enquired from the learned counsel for the respondents why the name of Alloo and Muhammad Sharif appeared in between the pedigree table if they were absolutely unconnected with the descendants of Sher Ali Shah, he stated that the Patwari might have manipulated this pedigree-table or he might not have a spare sheet at the time of preparation and, therefore, he put the names of the unconnected persons in-between the genealogical tree in columns where names of descendants of Sher Ali Shah should appear. This argument is absolutely without force since the question of manipulation does not arise because it was never taken or urged before either of the Courts below or in the pleadings. Moreover, Exh. P. 1 and Exh. D. 6, the copies of the same pedigree-table obtained from the Central Record Office tally with one another completely.
The other explanation is also most unconvincing. It is thus very clear that Alloo and Muhammad Sharif are connected with Sher Ali Shah and are his descendants. This can be the only explanation of the appearance of their names in-between the pedigree-table. The learned First Appellate Court did not look at the entire pedigree-table but confined his attention to only a portion of it.
(1) PLD 1976 SC 729
12. There is other evidence also which proves Karam Illahi to be an uncle of Muhommad Sharif. It is clear that Muhammad Sharif and Karam Illahi had been obtaining allotments of their lands in the same village and at one stage the area allotted to Muhammad Sharif was given to Karam Illahi and the area allotted to Karam Illahi was given to Muhammad Sharif vide Exh. D.
2. In Exh. D. 1, Column 10, the following entries are recorded :- {{URDU TEXT}} ' It is, therefore, established by this document that there was a relationship of uncle and nephew between Muhammad Sharif and Karam Illahi.'
13. The case of Muhammad Sharif is that he and Karam Elahi equally inherited from Umrey Shah father of Karam Illahi since his own father Alloo had died during the lifetime of Umrey Shah, his father. The equality of area abandoned by Muhammad Sharif and Karam Illahi is proved from a reading of Exh. D. 1 and Exh. D. 2, the entries of R. L. II Register pertaining to both of them. It proves not only the equality of the proprietary area but also the mortgaged area.
14. There is another important circumstance also and that is indolence of the respondents. The respondents are admittedly the residents of the same village. Though before the Additional Commissioner, as is apparent from Exh. D. 4, they had taken the plea that they belonged to other village and did not know about the mutation in favour of Muhammad Sharif and Mst. Jainan, but the Additional Commissioner also found that the respondents also belonged to village Laggar where the property in dispute is situated. This being so, it is very strange that no action for getting the mutation attested in their names was taken by the respondents. Even the report for review was not made at their instance. It was for the first time they came in field in the year 1968, 12 years after the death of Karam Elahi. According to their learned counsel they appeared before the Collector on the reference for permission to review, which was, no doubt, declined by him. They undoubtedly filed a revision petition before the Additional Commissioner but this revision petition was filed after the order of the Collector dated 28th May, 1968. This proves amply that they were not interested in this property and they started taking interest in the matter when they received information about the above defect which had crept into the pedigree-table. If they had any interest in the land or if they were really nearer residuaries of Karam Illahi in comparison to Muhammad Sharif appellant and Mst. Jainan appellant, they would have left no stone unturned to get the mutation attested in their names soon after the death of Karam Illahi. Their indolence for quite a long period of more than 12 years speaks volumes about there being only remoter relations of Karam Illahi. This circumstance proves the entry of Bhatija in column 10 of Exh. D. 1 as well as the statement of Muhammad Sharif and his witnesses about his relationship with Karam Illahi, to be absolutely correct.
15. It appears to me in the face of this evidence that the marks which should have shown the connection between Umrey Shah and Alloo was somehow or the other omitted and the name of Alloo written in a wrong square. It is on account of these mistakes of the Patwari that this difficulty has arisen of which the respondents want to take advantage. It is, however, clear from the circumstances and the evidence stated above that Alloo was the brother of Karam Illahi. The learned Additional District Judge has riot considered any of these circumstances, nor the effect of the entry in column 10 of Exh. D. 1 nor the equality of their proprietary as well as mortgaged area abandoned in India.
16. It may be stated at this stage that the learned Additional District Judge came to the conclusion, on the basis of some evidence on record, that despite the entry of ownership of the appellants in the revenue record, they had been paying Batai to the respondents up to the year 1968. I regret to say that he has not only ignored the above-mentioned important circumstances but has also ignored the record while coming to this conclusion. He has not taken into consideration an important factor that the point that the appellants had been paying Batai to the respondents was not taken in the original plaint. It was taken after more than three years when the evidence of the parties had also been recorded. This plea was, therefore, clearly an afterthought. It cannot be believed that the person who contacted the Patwari first with a statement claiming to be an heir of Karam Illahi and whose name is recorded in the revenue record should go on acknowledging other persons as the owners of the property. There was nothing to conceal in this case since revenue record which carried a presumption of truth regarded the appellants as owners of the property.
There is no explanation at the Bar why these persons should go on paying Batai to the respondents despite the entry of ownership being in their name.
17. The learned Additional District Judge has also misread the evidence. He has come to the conclusion that from the evidence of the plaintiffs it appeared that Khair Din P. W. 2 was one of the tillers of the land. I have gone through this evidence. There is no such statement. What he stated is that Muhammad Sharif was the tenant of Karam Illahi and after the death of Karam Illahi he had been paying share of the produce to Lal. But he has not paid that share for the last 4 or 5 years. He made a more pertinent admission in the cross-examination that Muhammad Sharif was in possession of the house of Karam Illahi and he had taken possession of that house soon after his death. This provides another circumstance of Muhammad Sharif asserting title to all the properties left by Karam Illahi including his house. The assertion about the payment of share of produce cannot reconcile with these circumstances.
18. The learned Additional District Judge stated that Lal Din D. W. 7 in the Patwari. On the reading of the judgment I had got an impression that probably the defendant's own witnesses have betrayed him and had come out with certain admission. When I checked the record I found that neither Lal Din is D. W. 7 nor he is a Patwari. The only person who bears the name of Lal Din in P. W. 3, but he said that he was a B. D. Member and the property in dispute was in the same circle from which he was elected as a Member.
19. Again the learned Additional District Judge while discussing the evidence of Muhammad Sarwar Khan P. W. 4, held that he was a Halqa Girdawar. This is not correct since Muhammad Sarwar is Chairman of Halqa Lagar which means that he was a B. D. Chairman.
20. This misreading of the record and the omission of the learned Additional District Judge to consider the circumstances and the assertion of their rights by Muhammad Sharif and Mst. Jainan appellants not only in regard to the property in dispute but also in regard to the house of Karam Illahi, do not give any sanctity to the finding of the learned Additional. District Judge as a finding of fact and it is open to me hearing a second' appeal to assess the evidence and appreciate it myself.
21. I have considered the entire evidence. I have also referred to the circumstances why it was not possible for Muhammad Sharif and Mst. Jainan to go on paying Batai. The evidence of these persons cannot, therefore, be believed. It further appears that P. W. 2 is admittedly on inimical terms with the defendants since there were proceedings under section 107, Cr. P. C. Between them.
P. W. 3 and P. W. 4 admitted that they had enmity with Taj Muhammad but they denied that Muhammad Sharif belonged to the party of Taj Muhammad. Before closing this chapter, I may refer to the evidence of Ohani Shah respondent P. W. I, recorded on 12th June, 1972, in which he made no mention about the payment of Batai to him. For all these reasons, I cannot reconcile myself with the evidence about the payment of Batai. These witnesses cannot be believed in the face of the documentary evidenceKhasra Girdawari Exh. D. 7, Mutation Exh. D. 5 and the subsequent entry in the Jamabandi after the mutation, about ownership in the name of Muhammad Sharif and Mst.
Jainan. I am, therefore, of the view that the suit was filed after more than 12 years of the death of Karam Illahi and possession of the land in dispute by Muhammad Sharif and Mst. Jainan. The respondents could not remain ignorant of the attestation of the mutation which was made in Jalsa-e-Aam. In fact, when I put it to the learned counsel for the appellants that Muhammad Sharif does not appear to be present at the time of attestation of the mutation which is also borne out by his evidence, he stated that he must be presumed to be present because it was a Jalsa-e-Aam but this argument should recoil upon his client that the mutation having been effected in Jalsa-e- Aam they must have known about it.
22. The learned Additional District Judge made much of the contradictory nature of the evidence about the alleged marriage of Mst. Jainan with Karam Illahi. It is not necessary to go into that question since once it is held that Muhammad Sharif was a closer residuary, he would exclude all the respondents. If he has agreed to part with 1/4th of the property in favour of Mst. Jainan that by itself would be a proof that Mst. Jainan was the widow of Karam Illahi otherwise he would have got the whole property mutated in his name.
23. For all the above reasons, I allow this appeal with costs of this Court as well as the Court of the learned Additional District Judge, set aside the decree of the appellate Court and restore the decree of dismissal of the suit passed by the learned trial Court.