1. This is a second appeal by legal representatives of Mst. Zain Bibi defendant No,
1. The dispute in this case relates to the property of one Gulaba, a sonless Thakyal, of village Jabbar Batang Niabat Hattian Tehsil and District Muzaffarabad, who died during the Dogra Regime, more than 20 years before the War of Liberation, when custom was in vogue. He was succeeded by three daughters ; namely Mst. Zain Bibi, Mst. Hashoo and Mst. Sumundra. Mst. Zain Bibi was married during the lifetime of Gulaba with Imam Din. She was `Khana Nashin daughter' and on death of her father, claimed to inherit the entire estate left by her father as `Khana Nashin daughter' before the Revenue Officer who attested mutation deed Exh. P. A. on 12th Badon 1982 Bikrimi. Mst. Faqirni, widow of the deceased, supported the claim of Mst. Zain Bibi before the officer who attested the mutation but the attesting officer in view of the fact that there were two unmarried daughters of the deceased attested the mutation No, 89 in favour of all the three daughters. However, it was recorded that the entry in favour of both the minor unmarried daughters would be effective only till their marriage after which further order will be passed. On marriage of Mst. Sumundra the property to the extent of her limited share was mutated in favour of Mst. Zain BiLi and Mst. Hashoo in equal shares vide Exh. P. B. on 25-5-1994 Bikrimi. There is no clear evidence as regard to the date of the marriage of Mst. Hashoo. However from the copy of jamabandi Char Sala for the year 2002-2003, which is at page 20 of the file, it can be assumed that her marriage had taken place prior to the preparation of that jamabandi as in the column, reference to mutation, it is recorded that under mutation Nos, 70 and 57 the entry had been corrected. Since the preparation of jamabandi Char Sala 2002-2003 she had continuously remained in possession of the land and had been enjoying the entire property left by Gulaba as `Khana Nashin daughter'.
2. Mangia son of Atta--brother of Gulaba deceased instituted the present suit for possession of the land in dispute on 5th March 1959 in the Court of the Sub-Judge, Muzaffarabad. The learned Sub- Judge passed a decree to the extent of 1/3rd share of the suit property in favour of the plaintiff and his brother Hussaina--a pro forma defendant. An appeal filed by the defendant before the District Judge, Muzaffarabad, was dismissed on 26-5-69. Mst. Zain Bibi died during the pendency of the suit in 1965. Her legal representatives who are the present appellants, were substituted in her place.
3. They have preferred this appeal against the judgments and decrees of both the Courts below.
4. Mangia plaintiff based his claim on custom in vogue during Dogra Regime under which daughters, after marriage, were deprived of inheritance and were considered civily dead. He wants that after cancellation of the entry of `Khana Nashin daughter' a decree for possession, in his favour and in favour of bis brother defendant No, 3, for the entire estate left by Gulaba deceased be passed.
5. The suit was contested by defendants Nos, 1 and 2 only. The defendant No, 1 bases her claim to the property on a custom of `Khana Nashin daughter' under which the entire property of her father devolved on her. In alternative she pleaded possessory title on the basis of adverse possession for the statutory period. Hussaina defendant admitted the claim of the plaintiff aid submitted that decree in favour of the plaintiff against defendant be passed. Mst. Hashoo defendant No, 2 in her written statement pleaded that in view of the fact that Mst. Zain Bibi was married during the lifetime of her father, she was excluded from inheritance under custom. The entry of `Khana Nashin daughter' about all the estate is wrong. She claims a share in the property of Gulaba deceased.
6. She prays that a decree to the extent of her share be passed in her favour. Seven issues were framed by the trial Court in the beginning but on appeal an additional issue in the light of the pleadings of the parties was framed by the learned District Judge vide his order dated 16-4-64.
7. This additional issue relates to the hostile possession claimed by Mst. Zain Bibi in her written statement and the case was remanded to the trial Court.
8. Though there are number of issues in the present case but arguments, before this Court, were concentrated only on issues Nos, 2 and 8 which relate to the custom of `Khana Nashin daughter' and hostile possession. The findings of both the Courts below are concurrent that a custom of `Khana Nashin daughter' as set up by defendant No, 1, the appellant, does not exist. It was argued by the learned Advocate for the appellant that the finding was not based on evidence. It may be pointed here that not a single case of `Khana Nashin daughter' except that of the appellant (defendant) has been shown. No copy of Wajab-ul-arz', in support of the custom set up, has been produced. The evidence adduced by the defendant to establish such a special custom cannot be considered to be sufficient. As such it cannot be said that the concurrent finding of lower Court is against the evidence on record.
9. Moreover, the question whether under a custom a `Khana Nashin daughter' inherits the entire estate of sonless proprietor, exists or not, is one of the fact. In 31 All. 557 the question was whether the rights of the parties were governed by Muhammadan Law and not by a family custom as set up in that case. At page 570 their Lordships observed : "The existence of such a custom is a question of fact, and as to this question the Courts in India concurred in their judgments. On this point their Lordships see no reason why they should not follow their usual practice of accepting their concurrent findings of fact."
10. In 32 All. 363 the question was as regard to the right of blood brothers in a Hindu Family to share equally with a full blood brother is succession of deceased brother. At pages 372-373 their Lordships held :-- "The learned Judicial Commissioner, in their Lordships' opinion, gave excellent reasons for refusing to regard the evidence adduced by the plaintiff as sufficient to establish such a special custom in the family as to rebut the ordinary presumption that mitakshara law prevailed the question involved was one of fact and their Lordships see no reasons to differ with the opinion of the learned Judicial Commissioner."
11. In 53 Mad. 597 the question was whether there was a custom by which a tenant was entitled to a relief of rent with regard to the land left uncultivated. Their Lordships of the Privy Council observed : -- "The District Judge in the present case has held that there was a custom to releave the tenant of land in respect of the land allowed to be fallow. Their Lordships are bound by the finding of the District Judge as regard the existence of custom."
12. The evidence adduced by the appellant (defendant No, 1) in support of special family custom of `Khana Nashin daughter' has been regarded as insufficient to establish the same. There is a concurrent finding of facts on record and it, therefore, settles the question of non-existence of the custom of a `Khana Nashin daughter' conclusively.
13. 'The next question that requires determination in this case relates to the alternate plea of hostile possession pleaded by Mst. Zain Bibi daughter of Gulaba who died before 1982 Bikrimi. He was survived by one widow and three daughters. Out of the three daughters Mst. Zain Bibi was already married and had, with her husband, continuously lived with her father since her marriage probably assisting in the management of his estate. Now it has been held that specific family custom of `Khana Nashin daughter' did not exist but it is admitted by the plaintiff that there was a general custom under which unmarried daughters were entitled to retain possession of their father's estate till their marriage after which their right over the father's property would become extinct. This is stated in paras. 4 and 7 of the plaint wherein the plaintiff states that in fact plaintiff and his brother pro forma defendant No, 3 were entitled to inherit the estate left by Gulaba to the exclusion of daughters, because defendants Nos, 1 and 2 on account of their marriage during Dogra Regime were excluded from inheritance under custom. He further states in that very para. that possession of the defendant is without title and the entry in proprietors' column is void and can have no effect so far the rights of the plaintiffs are concerned.
14. Mr. Ghulam Haider Qaiser learned Advocate for the respon-dent's contention that parties were governed in matter of inheritance by Muhammadan Law and not by custom is something contrary to the stand taken by his client in their pleadings and circumstances of the case. For the sake of arguments even if it is assumed that the parties at the time of death of Gulaba were governed in matter of inheritance by their Personal Law then Atta Muhammad, father of Mangia respondent who was alive then, would become entitled to inherit as residuary--being brother of Gulaba deceased--and would acquire a right to immediate possession to the extent of his share for which he could bring a suit within 12 years of the accrual of the right upon death of Gulaba. The claim, under Muslim Law of Inheritance, like any other claim, is subject to the Law of Limitation and after expiry of prescribed period for bringing a claim the right substantive or primary would extinguish and the suit of the plaintiff would be barred by limitation.
15. Both the Courts below refused to accept the plea of adverse possession set up by Mst. Zain Bibi defendant on the ground (a)that the property in dispute was joint with Atta Muhammad father of the plaintiff and defendant No, 3 ; (b)that the possession of Mst. Zain Bibi cannot be adverse to the collaterals in any manner as the origin of possession is referable to a lawful title as heir of Gulaba.
16. On the basis of these conclusions the lower Courts relying on PLD 1960 Azad J & K 7 and PLD 1955 FC 31 passed a decree of joint possession to the extent of 1/3rd share in favour of Mangia respondent and his brother Hussaina respondent and to the extent of 1/3rd in favour of Mst. Hashoo respondent.
17. The facts of PLD 1955 FC 31 entitled "Mst. Ghulam Ellahi v. Mohammad Waris Khan" were that on death of Mst. Begum Jan the property left by her was mutated in equal shares in favour of her son Mohammad Waris from her first husband Ahmed Khan and Mst. Ghulam Ellahi a daughter from second husband Ali Mardan. Mst. Ghulam Ellahi was married in 1938. Within 12 years of her marriage Mohammad Waris brought a suit for possession of her share in the property on the ground that by her marriage she had lost her interests in the property. The suit was resisted on the basis of adverse possession. It was found that according to the custom daughters were excluded by sons, and that when they shared the property they do so by sufference and till marriage. There was no evidence that before marriage Mst. Ghulam Ellahi even asserted that she had succeeded as equal owner with her brother so as to make it imperative for the latter to seek a declaration as to the true nature of her possession. In that context it was observed "The principle of law is that possession is not to be considered adverse if its origin can be referred to lawful title whenever that is possible, because a person who claims to have entered into possession as a trespasser will be presumed not to have done so if at the time he so entered he had some lawful title to possession."
18. It was further held that :- "Where the custom by which the parties were governed was that a daughter was entitled to maintenance and sometime succeeded to the property till her marriage, the presumption in the absence of clear evidence to the contrary, must be that she entered into possession under that custom and not that she was a trespasser ab initio."
19. In view of the circumstances of that case it was held that "the daughter, therefore, was not in adverse possession of the land she had acquired under custom". At the same time, their Lordships by saying that "in the absence of clear evidence to the contrary", recognised the converse proposition. That a daughter by definite evidence can establish her title by adverse possession but there must be clear evidence to that effect.
20. In Mst. Jumi and others v. Shamas Din and others , the question involved was of adverse possession. At the time of the settlement in Sambat year 1986 Bikrimi. Rahm Dil father of the plaintiff was not shown as co-sharer in the suit land but in subsequent Jarnabandi of 1991-92 and 1995-96 his name appeared as cosharer. There was evidence that this alteration in the Jamabandi was made in consequence of an order in Appeal No, 24 decided by the then Wazir Wazarat on 1st Sawan 1991 Bikrimi. As such Rahm Dil was found a co-sharer in the suit land. On the basis of these facts it was held:-- "Ordinarily the possession of one co-sharer is possession on behalf of all. The possession of co- sharer in possession cannot be held to be adverse to the other co-sharers, who are out of possession unless there is a clear disclaimour of title of the absentee co-sharers made by co- sharer in possession or there is an overt act amounting to ouster of the absentee co-sharer by the co-sharer in possession."
21. It was further observed in this very judgment that :- "The mere entry of the name in the revenue register or mere non-enjoyment of the produce of the land does not amount to ouster and is not sufficient to prove adverse possession. The co-owner in possession must make a disclaimour of the right of the other by an open and unequivocal assertion of hostile."
22. It would appear from these observations that a co-owner in possession by an open and definite assertion of hostile possession and categorical denial of the right of other in the property can establish his adverse possession as that would amount to ouster. In view of the above discussion, in my humble opinion, either party can gather support from these authorities but that would depend upon the facts proved from the evidence on record.
23. Whether the conclusions drawn by the lower Courts are justified it would be necessary to reapprise the evidence on record.
24. Admittedly Gulaba father of Mst. Zain Bibi and Atta father of Mangia and Hussaina respondents were real brothers but from the evidence on record it cannot be inferred that the entire suit1 property was held by them jointly and after the death of Attahis son was co-owner in the property. It may be that most of the property in suit land might have been self-acquired property of Gulaba deceased father of Mst. Zain Bibi and for that reason Mangia and Hussaina do not appear as co-owners in Jamabandi Char Sala 2002-2003 Exh. D. A. in land under Survey Nos, 40,
45. 59, 164, 167 and 250 in Khewit No, 15/15 measuring 52 kanals 9 marlas and in land under Survey No, 43 measuring 3 kanals 10 marlas. Only the land under Survey Nos, 46 and 163 is shown as joint property of the plaintiff-cum-Mst. Zain Bibi. Survey No, 163 is Ghair Mumkin Kotha and according to the statement of Sayed Nazir Hussain Shah, D. W. 2, Matwali Khan P. W. 2 and Muhammad Zaman P.
25. W. 1 the houses are not joint but in separate possession of the parties. These entries in jamabandi Char Sala Exh. D. A. are further supported by entries in Khasra Girdawari Exh. D. B. about which though there is no presumption of truth but are relevant under section 35 of the Evidence Act. The copy of the mutation Exh. P. B. is also to the same effect. Therefore, the findings of the Courts below that the property in suit was joint property is contrary to the record on file and cannot be maintained. In my opinion, except the land under Survey No, 46 measuring 9 kanals 4 marlas no other part of the suit land was jointly owned by the plaintiff and his brother Hussaina with Mst. Zain Bibi, according to entries in the revenue record but even in this Survey No, she was in exclusive possession to the extent of the share of her father in the land.
26. On death of Gulaba, as it would appear from Exh. P. A. copy of Mutation No, 89, that Mst. Zain Bibi was already married. She claimed the entire estate as `Khana Nashin daughter' but mutation was sanctioned to the extent of 1/3rd share as 'Khana Nashin daughter'. As regard to the remaining 2/3rd of the property left by the deceased it was recorded by the attesting officer that it shall remain in the possession of minor daughters of Gulaba Mst. Hashoo and Mst. Sumundra till their marriage after which appropriate order would be given. On marriage of Mst. Sumundra her share to the extent of was mutated in the name of Mst. Zain Bibi as `Khana Nashin daughter' and the remaining in the name of Mst. Hashoo who was till then unmarried. After the marriage of Mst.
27. Hashoo it would appear from the jamabandi Char Sala of 2002-2003 that her name was removed from the record and the entire estate left by Gulaba deceased was mutated in favour of Mst. Zain Bibi. This alteration was incorporated in Jamabandi Char Sala of 2002-2003 and since then she had been in conitnuous possession under a colourful claim of `Khana Nashin daughter'. It has been held above that the special custom of `Khana Nashin daughter' did not exist. It is stated in the plaint that under the custom In vogue at the time of the death of Gulaba during Dogra Regime, married daughters were excluded from inheritance. On death of Gulaba when his property was mutated in the name of Mst. Zain Bibi who was already married, it was done so neither under Muhammadan Law nor under any custom having the force of law. But the mutation was attested under a claim of `Khana Nashin daughter' and she is holding possession under colour of that claim of 'Khania Nashin daughter' at least exclusively since 2002-2003 Bikrimi. Thus it would appear that the origin of her possession is not referable to any lawful title either under custom or under Muhammadan Law of Inheritance. Under General Custom as stated in the plaint she was to be excluded from inheritance because she was already married. Therefore, the origin of her possession cannot be referred to a lawful claim.
28. The reference to Mutation Nos, 70 and 57 in Jamabandi Char Sala 2002-2003 Bikrimi indicates that the name of limited owner namely; Mst. Hashoo had been removed in consequence of the mutation proceedings referred therein. The entry of exclusive title and possession of Mst. Zain Bibi as 'Khana Nashin daughter' in the revenue record pertaining to year 2002-2003 Bikrimi was the result of mutation proceedings. This implies (a) that Mst. Zain Bibi was claiming title to the property as `Khana Nashin daughter' and (b) that the Revenue Officer by attesting the mutation recognized her title as 'Khana Nashin daughter' on the belief that it did exist. The record-ofrights being publically attested in presence of the people of the village it is presumed that plaintiffs (respondents) who were residents of the same village had the notice of the fact that Mst. Zain Bibi was holding possession under a claim of `Khana Nashin daughter' which was adverse to them. I am supported in this view by AIR 1932 Lah. 586 which is a D. B. case. Curie, J. at page 589 observed.
29. "In ordinary case where the party was a resident in a village it might be presumed that he had notice of the assertion made against his title from the date on which the final attestation certificate on the Jamabandi was recorded by the Revenue Officer unless it has been shown definitely that that particular entry had been attested publically at some earlier date.
30. Bedi, J. at page 591 observed "An entry in the record-of-right of non-payment of rent or assertion of adverse title is relevent under section 35 of the Evidence Act. The record-of-rights being publically attested in presence of the people of the village, the presumption arises that the landlord had notice of the adverse title at least on the date of such an attestation. If for any special reason the landlord does not come to know of the adverse claim even by that date it is for him to establish the fact."
31. The position that would emerge is that Mst. Zain Bibi was holding possession to the exclusion of other claimant under a claim of `Khana Nashin daughter' which fact is presumed to be known to them. In other words there was a disclaimour of the right of others by open assertion of hostile title by Mst. Zain Bibi.
32. In PLD 1961 Pesh. 9 the question was that according to the customary law if some heirs succeeded to the estate of their deceased father as full owners to the exclusion of his widow and daughter whether their possession would be adverse to daughter and widow or not. Itwas observed :- "If the law of limitation prohibited the entertainment of claims after twelve years of the accrual of the right upon death, the claims will cease to be entertainable. The customary law heirs who succeeded as heirs and remained in enjoyment of the estate for over twelve years will be held to have matured their irrevocable title to the deceased's estate by prescription.
33. The possession as owners of customary law heirs in their own right, and not as co-heirs, was to all intents and purposes hostile to the female Muhammadan Law heirs. Their possession cannot be deemed to be the possession of co-owners or co-heirs with the female heirs because their entry into possession was not as co-heirs or co-owners, but was an entry in their own right. In their possession there is an element of ouster as well. Ouster is constituted when possession is open and hostile, is in one's own right as full owner, and when these elements are within the knowledge of the party claiming right to the property.
34. The character of possession of customary law heirs cannot be altered by the change made by the Muslim Personal Law (Shariat) Application Act of 1935. The claim which the heirs of a deceased person have to prefer after the enactment of the Act of 1935 will be entertained only if the law of limitation offers no impediment. If it does, the claims will be rejected if preferred after 12 years of the death of the deceased whose estate is sought to be inherited."
35. PLD 1970 Pesh. 110 is another case the facts of which were that on death of one Ramat Shah in 1917-18 when custom was in vogue his property devolved solely on Mukammal Shah to the exclusion of his sister Mst. Apogi by a mutation attested on 28-9-1920. Mst. Apogi instituted a suit on 22-5-61 against her brother Mukammal Shah praying for possession of 1/3rd share in the property left by her father. The suit was resisted on the basis of adverse possession. It was observed :- "No doubt, possession of a co-heir is, in law, the possession of all his co-heirs. Mere non- participation in the profit of the property by one co-heir and exclusive possession by the other will not be sufficient to constitute adverse possession. Nothing short of ouster or something equivalent to ouster can bring about that result. If there is no ouster or exclusion the possession of one co- sharer is not adverse to the other. The test whether there is an ouster is to see if the co-heir in possession had openly and unequivocally and to the knowledge of the other co-heir denied his title to the property."
36. Adjudging the facts of the present case in the light of the above-mentioned observation it would appear that 11ist. Zain Bibi defendant appellant has been holding the possession of land in suit openly and within the knowledge of the defendant at least from the year 2002-2003 Bikrimi under a claim of 'Khana Nashin daughter' which must be taken as a repudiation of the title of the respondent. As she had been in possession of the land in suit and had been cultivating it for years, there can be no doubt that the requirements of continuity, publicity and extent for adverse possession are fully complied with. In AIR 1927 Pat. 145 wherein adopted son held exclusive possession of certain property for over the statutory period and a reversioner subsequently sued for partition and possession on the ground that the adoption was invalid, it was held at page 164 that"Admittedly, for the last several generations the defendant and his ancestors have been in possession of the properties and their names have been successively recorded in the public and private documents, the plaintiffs have failed to prove their possession over the property in dispute and consequently their claim for partition or for the recovery of actual possession must fail."
37. On the analogy of that when a daughter under a colour of a claim of `Khana Nashin daughter' which custom did not exist in the family held exclusive possession of the property left by her father for statutory period of 12 years reversioners having failed to prove joint possession, their suit would be barred by limitation.
38. In my opinion, the lower Courts have passed their judgments on no proper evidence and have interpreted the evidence wrongly, therefore, their findings on the question of adverse possession is vitiated. The rulings cited by them, in view of the wrong conclusions of the facts, have not been correctly appreciated. Mst. Zain Bibi in view of the circumstances of the case can gather support from these rulings as well. I, therefore, set aside the finding of both the Courts below and hold that the appellants have successfully proved that they had been in adverse possession of the land in suit for more than 12 years. The appeal is accepted and the suit of the plaintiff-respondent is dismissed. The parties are left to bear their own costs. PLD 1960 Azad J & K 70