1. SHAFIUR RAHMAN, J.-This is defendant's certificated appeal under Order XLV, rule 3, C. P. C. Against the dismissal in limine of his further appeal by the West Pakistan High Court, Peshawar Bench, on 18th April, 1961.
2. Bostan bad two wives-from one he had a son Yar Muhammad who was the father of the two plaintiffs and defendant No. 1, and from the other he bad a son named Abdul Qadir who was the father of the appellant The two sons (Yar Muhammad and Abdul Qadir) received in equal shares the ancestral property on the death of Yar Muhammad in 1923-24. The three daughters, that is, two plaintiffs and defendant No. 1 inherited hiq estate as customary heirs. 1n 1925 or near about Mst.
3. Shamozai the eldest sister and one of the plaintiffs- married whereupon the customary estate held by her was mutated vide Mutation No. 3693 attested on 27-9-1925 (Esh. P. W. 2/8 Exh. D. D.) in favour of her two surviving then unmarried sisters, Mst. Amazai, defendant No. 1 and the plaintiff No. 2 Mst. Ferozai. Mst. Ferozai was the next to get married and her customary estate devolved on Mst.
4. Amazai (vide mutation 584 attested on 24-3-32 as corrected vide mutation 665 attested on 7-7- 1958 vide Exh. P. 1). On 13-10-1950 Mst. Shamozai and Mst. Ferozai instituted a civil suit claiming that their father Yar Muhammad was owner of land measuring 186 kanals 13 marlas out of 220 kanals 13 marlas in village Yaqubi Tehsil Sawabi, District Mardan. It was admitted that Yar Muhammad had no male issue and the three daughters inherited in equal shares the estate left by him. The plaintiffs claimed entitlement to 124 kanals and 9 marlas as heirs of Yar Muhammad and it was contended that their sister Mst. Amazai and their cousin Akbar Khan did not accept their claim.
5. They sought possession of their share, Mst. Amazai submitted the first written statement in the suit through her husband Hanifullah in which she admitted the claim of Akbar Khan appellant that the plaintiffs had got married before her and got married twenty years ago, in any case, before enforcement of Shariat Act. On her marriage her limited interest had terminated and since then Akbar Khan was in possession of Yar Muhammad's property as an owner: As the record of the trial Court was lost and had to be reconstructed another written statement was by Mst. Amazai in which she admitted the claim of the plaintiffs and repudiated that of defendant No. 2. In his written statement dated 1-11-1951 the appellant took up the grounds that Yar Muhammad died during Custom and all his three daughters married during Custom. Thereupon his estate reverted to him as the owner and he has been in its possession as such and none of the daughters were in possession of it. Hence the suit was barred by time and he had in any case perfected his title by adverse posses--sion.
6. The following Issues were framed on the pleadings of the parties--
(1) Whether the suit is within time? O. P. P.
(2) Whether the plaintiffs have any cause of action? O. P. P.
(3) Whether the plaintiffs are the owners of the suit property and the defendants Nos. 1 and 2 are in wrongful possession thereof? O. P. P.
(4) Whether the defendant No. 2 has become owner of the suit land by adverse possession for over 12 years? O. P. P.
(5) Relief.
7. The trial Court held that the two plaintiffs had married prior to 1935 that is before the enforcement of Shariat Act. The real contest was with regard to the date and year of marriage of Mst. Amazai.
8. Her admission in the earlier written statement filed by her husband Hanifullah and the effect of registered deed dated 5-8-1950 was also examined and it was held that the marriage of Mst.
9. Amazai took place nine years before the institution of the suit, that is, after the enforcement of Shariat Act in 1935 and computed from that time the suit of the plaintiffs was within time and the contesting defendant-appellant had not matured his adverse possession. It was held that the entire of Yar Muhammad on the marriage of the two plaintiffs came to vest in Mst. Amazai and her limited interest had terminated on her marriage which took place after the enforcement of Shariat Act. In view of the provisions of Shariat Act Akbar Khan appellant was to inherit one third, that is, 62 kanals 4 marlas 3 sarsais, Mst. Amazai defendant was to inherit 41 kanals 3 marlas 2 sarsais and Mst. Shamozai and Ferozai, the plaintiffs, were to get 83 kanals 5 marlas 3 sarsais. In this manner the share of the two plaintiffs came to 83 kanals 5 marlas and 3 sarsais and their suit was decreed to that extent.
10. The first appeal against this judgment and decree was preferred by the appellant and it was then found that the record of the trial Court with regard to this case bad been lost. It was ordered to be reconstructed and the first appeal ultimately came to be heard by the learned Additional District Judge Mardan who dismissed it on 14th January, 1961, upholding the decision of the trial Court.
11. A further appeal was filed by the appellant under section 31 of the N: W. F. P. Courts' Regulation of 1931. It came up for preliminary hearing before a bench of the High Court of West Pakistan, Peshawar Bench and was dismissed in limine with the following observations on 18-4-1961:- "The two Courts below have found that the estate of Yar Muhammad had to devolve upon his Muhammadan Law heirs and the 3 daughters' claim was within time. These are questions of fact and to these facts the law has been correctly applied. This appeal is against concurrent findings of facts and does not disclose any defect in the application of law to those facts. It is dismissed in limine."
12. The contesting defendant-appellant sought a certificate under Order XLV, rule 3, C. P. C. Which was granted on 25-4-1962 with the following observa--tions:- "It is in our opinion clear from the above that the learned Judges considered that they were bound by the concurrent findings of fact arrived at by Courts below and that the scope for interference was limited to questions of law. This with respect would have been a correct statement of the position had the appeal been a regular second appeal under section 100, C. P. C. But ii has apparently been over--looked that section 31 of the North-West Frontier Province Courts Regulation No. 1 of 1931 under which the appeal was filed, allows any ground to be taken in further appeal which would have a good ground if the decree had been passed in an original suit. It was, therefore, not only open to the learned Judges to examine the correctness of the findings of fact arrived at by the Courts below but it was in fact incumbent upon them to do so. There is nothing in the order to indicate whether the findings in question were considered to be correct, and if they should turn out to be erroneous, the failure of this Court to interfere in further civil appeal would amount, in our opinion, to a miscarriage of justice."
13. This appeal has come up for hearing to day in the presence of the learned counsel for the appellant and the respondents are not represented as their counsel has expressed his inability to attend the hearing on account of short notice. We have decided to examine the merits of the appeal ex parte.
14. The first legal question to be examined in this appeal is whether the finding of fact recorded by the trial Court and affirmed by the first appellate Court was so sacrosanct and conclusive as to be not liable to interference except on grounds mentioned in section 100, C. P. C. Or was there a greater scope for reviewing the concurrent finding of fact in view of the provisions of N: W. F. P. Courts Regulation of 1931.
15. The further appeal in the High Court of West Pakistan, Peshawar Bench, was filed on 30-3-1961. It was dismissed in limine on 18-4-1.961.The West Pakistan civil Courts Ordinance repealed the N: W. F.
16. P. Court Regulation 1931 as from 8th January, 1962, when it was enforced. I follows that further appeal in the High Court of West Pakistan had to be decided under N.-W. F. P. Courts Regulation.
17. Further appeal was provided in specified cases "from an appellate decree of a District Court on any ground which would have been a good ground of appeal if the decree had been passed in an original suit." This provisions makes the scope of further appeal co-extensive with first appeal, definitely wider than what is prescribed in section 100, C. P. C. The concurrent findings of fact needed re-examination, appraisal afresh without the constrains of a second appeal.
18. Keeping in view the fact that for 10 years the matter remained pending in the trial Court for the re- construction of the record and for another 10 years the appeal has been awaiting hearing in this Court, we have decided to re-appraise the facts and the findings of the Courts with regard to them instead of remanding the matter to the High Court. In the background of our decision in the case of Aslam and another v. Kamalzal (PLD 1974 SC 207), the question to be determined first is what was the estate in the hand of Mst. Amazai on the enforcement of the N.-W. F. P. Muslim Personal Law (Shariat Application) Act of 1935. Her case in this respect was that the entire estate of Yar Muhammad had come to vest in her on the marriage of her two elder sisters and that her own marriage took place after the enforcement of this Act. The contention of the appellant, on the other hand, was that all the three daughters had married before the enforcement of Shariat Act and, therefore, they were left with no interest whatsoever and the property had already come t, vest in him. In the alternative it was contended that as and when 6e limited estate of Mst. Shamozai and Ferozai terminated it did not come to vest in Mst. Amazai but came to vest in the appellant. In this manner Mst. Amazai was left only with 1/3 estate of Yar Muhammad which would be available for devolution in accordance with the Muslim Personal Law (Shariat Application) Act, 1935, if at all she is held to have married after the enforcement of Shariat Act.
19. The appellant had in support of his case two formidable documents, the first in point of time was a registered deed of relinquishment executed by Al;. Amazai on 5-8-1950 (Exh. D. A.) witnessed by her husband. In this deed she admitted her marriage 25 years ago and then vesting of the entire estate in Akbar Khan appellant. Before the registrar Jaipur, son-in-law of the appellant had identified her. The position taken up by Amazai and her husband with regard to this document was that it was got fraudulently recorded in respect of the entire estate of Yar Muhammad when in fact it was supposed to relate to one-third share in the estate of Yar Muhammad to which the appellant was admittedly entitled. It was this fraud played upon her which accounted for its non- implementation in the revenue record. She being illiterate was not told about the exact contents of the deed, either at the time of its registration or at the time of writing it. The trial Court did not consider the weight and effect of this document. The first appellate Court however, attended to it.
20. In view of the conduct of the appellant, reported by the Commissioner, of interfering with the statement of Mst. Amazai, it was concluded that "the statement attributed to the defendant Mst.
21. Amazai in the agreement deed that she was married 20 years ago was also sham statement introduced by Akbar Khan." There is intrinsic evidence in that document itself to negate its correctness and authenticity. In this document Mst. Amazai, gives out the time of her marriage as 25 years which is against the evidence of the appellant himself. Besides in that document the possession of Akbar appellant since then is acknowledged. It is not the case of the appellant at the trial that he came into possession of Yar Muhammad's estate a year or two after his death, and within this span of one or two years the marriage of all his three sisters took place. This document, therefore, appears to be a procured document, from a Pardanashin lady and overshoots the mark.
22. The next formidable document is the pleading of Mst. Amazai herself, the first written statement filed in the case through her husband and attorney Hanifullah. The trial Court got over it by observing as follows:- "It is true that in the Jawabdawa Mst. Amazai defendant had supported the contesting defendants but this Jawabdawa was filed on her behalf by her husband Hanifullah as her attorney in her evidence before the Commissioner.
23. She deposed it was not true. She had, moreover, filed a commission deed with the plaintiffs during the pendency of the suit, wherein she had confessed judgment in favour of the plaintiffs and also claimed share for herself.
24. It is important who to notice here that the Commissioner was deputed to record the statement of Mst. Amazai, reports that the contesting defendant was interfering with the statement of Mst.
25. Amazai and asking her to make a statement of her choice and when the Commissioner told him not to interfere with her statement the contesting defendant left the place.
26. The admission made in favour of the contesting defendant through her attorney in the Jawabdawa, were gratuitous admission and could, therefore, be withdrawn by Mst. Amazai, if at all these admissions are taken to be authorised by her."
27. The first appellate Court dealt with it as follows:- "Now we have to choose between the various statements made by Mst. Amazai about the date when she had married. The last statement made by her was that she had married nine years before the institution of the suit. There was no evidence on behalf of the appellant save his solitary statement and that one of his witnesses saying that she married twenty-five years before the institution of the suit. Under the circumstances the statement of Mst. Amazai recorded by the Commis--sioner in the present suit is to be preferred to the rest of the material on the record on the point in issue. This is because the written statement filed in this case bad no force as it was filed by the husband of Mst. Amazai and she was not bound by it, and was at liberty to prove that the admission made in the written statement was mistaken and untrue."
28. The attorney and husband of Amazai appeared as a witness in the case and was put no question with regard to the admission made by him in the written statement. It was repudiated soon enough by Mst. Amazai. It was held to be gratuitous and against the weight of evidence on record. Mst.
29. Amazai had in her first statement during the trial stated that her marriage took place 9 years ago, which fact was endorsed by the plaintiffs. The appellant in his statement took up the plea that Mst.
30. Amazai's marriage had taken place 16 or 17 years ago while in his written statement he took up the plea that her marriage had taken place twenty-five years ago. 1n the second round of recording of evidence, the first record having been lost, Akbar Khan stated "Mst. Shamozai was married in 1927, Mst. Amazai in 1930 and Ferozai in 1932." He admitted that the relinquishment deed Exh. D. A. Was executed at his instance by Mst. Amazai. In this deed he claims to have obtained the estate of Yar Muhammad on the termination before enforcement of Shariat Act, of the limited interest of Mst.
31. Amazai. On his statement just reproduced he could claim it through Mst. Ferozai and not Mst.
32. Amazai. Haifullah was examined on 29-2-1960 and stated that he got married to Amazai about 12/13 years ago. In his grounds of first appeal drafted on 7-6-1951 Akbar Khan appellant urged "the marriage of Amazai is proved to be of more than 12 years old." This would place the date/year of marriage as 1938-1939 and will rather prove the facts as disclosed by the plaintiff. The other witnesses of the appellant did not state anything about the time/year of marriage of Mst. Amazai.
33. In this background of facts the finding recorded by the two Courts that the marriage of Mst. Amazai bad taken place after the enforcement of Shariat Act is unexceptionable and fully borne out from the record.
34. As regards the possession of appellant and the question of limitation, it has to be kept in view that independent of the disputed property, the parties were co-sharers in the property being grand- children of Bostan. There was no hostility or adversity in the possession of the appellant. Besides, the exclusion of Asst. Amazai is not established either from the Revenue Record or the oral evidence. Hence the suit was well within time and the possession of the appellant at no time adverse or hostile.