1. ' This is a second appeal by the defendants-appellants against the judgments and decrees of the lower Courts whereby the suit of the plaintiffs-respondents or possession of the landed property including a house allegedly left by one Sher Muhammad was decreed to the extent it was claimed.
2. To understand the circumstances of the case, the pedigree-table of the parties is given as under :- {{TABLE}} Najab Din Faqir Muhammad r- 1 Mir Muhammad
(son) 1 Mst. Alam Bi (daughter) r- Mst , Nawab Bi (daughter) 1 Sher Muhammad (son)
3. Mst. Nabi. Mst. Haleema (widow) (daughter) {{TABLE}} ' The inheritance of the property of the suit was claimed under Muslim Law as according to the plaintiffs, Sher Muhammad died after the enforcement of Shariat Law and so half of the property left by the deceased was inherited by their mother and sister of Sher Muhammad deceased and on whose (Mat. Nawab Bi's) death, the plaintiffs, her sons and daughters are entitled to the possession of the property in suit. The suit was resisted by the defendants-appellants alleging that Sher Muhammad died prior to the enforcement of Shariat Law in December, 1947 and so the property left by him was alone inherited by Mir Muhammad, a cousin of Sher Muhammad under custom and on Mir Muhammad's death after the enforcement of Shariat Law, the defendants were entitled to the property as a whole and as such Mst. Nawab Bi was to inherit nothing out of the property left by Sher Muhammad deceased.
4. ' The following issues were struck by the trial Court :-
(1) Whether the plaintiffs are owners of the land in dispute and so the entries in this behalf in the revenue record were correctly made, if so, what would be its effect on the suit ? 0. P. P.
(2) In case of proof of Issue No, 2, whether the plaintiffs are entitled to the possession of the land in suit ? 0. P. P.
(3) Relief.
5. ' The learned counsel for the parties were heard and a close perusal of the record of the case was also made.
6. ' No plea with regard to adverse possession or the limitation, as the case may be, was raised by the defendants-appellants. Although an attempt was made in evidence tending towards adverse possession, yet this was not the case of :ire defendants and so no consideration can be given to this aspect It was simply asserted by the defendants that plaintiffs have no concern with the property in suit as Sher Muhammad died during the year 1947, that is, prior to the enforcement of Shariat Law, and that being the position of Mst. Nawab Bi, their mother, she could have never inherited the property in suit as under custom she being a sister of the deceased, was not to inherit anything in presence of Mir Muhammad, a cousin of Sher Muhammad deceased.
7. ' No issue with regard to death of Sher Muhammad was struck by the trial Court in context of customary law. But the parties were alive to the situation and so they led evidence on the point of the date of death of She Muhammad which is very pivotal for the determination of the rights of the parties in the property in suit. And so we need not bother for the issue not framed by the trial Court.
8. The Courts below came to the conclusion that Sher Muhammad died in the month of August, 1950 after enforcement of Shariat Law and so the property left by Sher Muhammad was inherited by Mst.
9. Nawab Bi as a sharer being his sister and the remaining half of the property was devolved upon Mir Muhammad a residuary. This is concurrent finding of fact which cannot be disturbed in second appeal an I also endorse the finding of the lower Courts on this point.
10. ' A certified copy PA showing date of death of Sher Muhammad authentic as compared to a certified copy DA which takes the date of death back to 14-12-1947. Both the copies were obtained from the one on the same Register which were respectively issued to the parties by the Police Officers concerned. Copy DA evidently was issued to the defendant by tampering with the correct date of death of Sher Muhammad, that is with 14-8-1950. A witness, namely, Jhandoo, produced by the plaintiffs; though admitted in the cross-examination that Sher Muhammad died during 1947 A D. But he cannot be relied upon in view of the certified copy PA which was issued by the Officer Incharge of the Police Station from a register kept for the purpose wherein entry relating to the death was duly made by the Police Officer concerned, in discharge of his official duty and this copy was issued before copy DA was issued to the defendants by some Police Officer. The latter copy was obviously issued after having tampered with the original entry made in the register of deaths kept at police station for the purpose and this tampering was done by some corrupt Police Official having access to the Register concerned.
11. ' The property in suit is under Surveys Nos. 3, 32/42, 33/43, 34/44, 33/45 and 36/46 measuring 36 kanals and 12 mark's. Under Survey No, 3, half of the property belonged to Sher Muhammad deceased whereas in Surveys Nos. 3, 32/42, 33/43, 34/44, 33/45 and 36/46 he had only 6 kanals and half a marla but it was wrongly claimed by the plaintiffs-respondents that 10 kanals of land out of the property left by. Sher Muhammad deceased fell to their lot. Both the Courts below have miserably failed in determining the actual share of Mst. Nawab Bi, the sister of Sher Muhammad deceased. Moreover, they have also not cared to see that Sher Muhammad had also a wife who entered into second marriage after his death and this is on record and so her share, that Is, share of Sher Muhammad's widow, was to be excluded from consideration while allotting portions of the property to the sister and cousin of Sher Muhammad deceased according to the law of inheritance, that is to say that after subtracting 1/4th of the property of Sher Muhammad deceased, the remaining property was to be divided among other heirs as Sher Muhammad had no issue. The entire property which was owned by Sher Muhammad comes to 12 kanlas and 5.1/2 marlas out of which widow's share is to be deducted and remaining property would stand apportioned between Mir Muhammad and Mst. Nawab Bi, half and half and thence the parties through them shall have their due shares according to the law of inheritance and so no decree for 10 kanals could be passed in favour of the plaintiff-respondents. Again I find that there is no house as claimed standing presently on the land in dispute, as is evident from the statement of Sattar Muhammad plaintiff-respondent himself and so no decree for part of the house as claimed, could be passed by the trial Court so also by the District Judge. The property consisting of the above survey numbers is jointly owned by the parties and so a decree for joint possession of the same ought to have been passed instead of specific possession as was wrongly done by the Courts below.
12. ' In the result, this appeal is partly accepted to the extent indicated above and necessary modifications in the judgments and decrees of the lower Courts are accordingly made for the reasons above.