' RAJA MUHAMMAD KHURSHID KHAN, ACTG. C. J.-This appeal by leave calls in question the judgment and decree passed by a Division Bench of the High Court on 11-4-1979 as first Court of appeal. By this judgment the compromise entered into by Mst. Zainab Bibi and Eidoo, respondents (the former was respondent and the latter appellant in the appeal before the High Court), was accepted and the judgment was recorded accordingly but cross-objections filed by Sakhi Muhammad, pro forma-respondent in the appeal, who is now being represented by his daughter Mst. Iqbal Begum, appellant in this appeal, were rejected.
2. The facts giving rise to the appeal are that in connection with the acquisition of land Collector, Mangla Dam draw the award of certain land, including the suit land measuring 108 kanals 4 marlas, belonging to one Sher Muhammad. On the basis of mutation attested in the year 1957 the compensation of the land of Sher Muhammad was awarded to Eidoo and Sakhi Muhammad to the exclusion of Mst. Zainab Bibi, respondent the daughter of Sher Muhammad). Mst. Zainab Bibi went up in reference against the award in the Court of District Judge, Mirpur, and claimed that being the daughter of Sher Muhammad she was entitled to share of the compensation of the land belonging to Sher Muhammad. The learned District Judge, vide judgment and decree dated 19-2-1968, accepted the reference in upholding the claim of Mst. Zainab Bibi.
3. Dissatisfied with the finding of the learned District Judge, Eidoo preferred an appeal in the High Court in which Sakhi Muhammad, as a pro forma-defendant, also put in his cross-objections against the claim of Mst. Zainab Bibi, respondent. During the pendency of the appeal a compromise was entered into by Mst. Zainab Bibi and Eidoo whereby in lieu of certain amount Mst.
Zainab Bibi gave up all her rights in the suit land in favour of Eidoo. The High Court accordingly passed the impugned judgment and decree on 11-4-1979 in favour of Eidoo in terms of the compromise to the exclusion of Sakhi Muhammad.
4. Mst. Iqbal Begum, appellant, the daughter of Sakhi Muhammad, has now come up before this Court to impugn the judgment and decree passed by the High Court. Raja Muhammad Siddique; the learned counsel for the appellant, has contended that the main contentious point between the parties was as to when Sher Muhammad died, i,e,, whether Sher Muhammad died during the Dogra Regime, as contended by. Eidoo and Sakhi Muhammad, or he died after the enforcement of Shariat Laws when Azad Jammu & kashmir Government had come into existence, as claimed by M .
Zainab Bibi. Issue No. 1, which reads : "Whether Sher Muhammad would be presumed to have died during the Azad Rule after the enforcement of Shariat Law ? 0. P. Applicant." covers the controversial point. According to the learned counsel the evidence sufficiently establishes that Sher Muhammad died during the Dogra Regime when the parties were governed by a custom under which Mst. Zaniab Bibi, the daughter of Sher Muhammad, was not entitled to have any share out of the land left by her father but the High Court fell in error not to decide the issue in accordance with evidence and law. He has referred us to the relevant observation of the High Court. The observation is to the effect that.
"But on merits we have no, hesitation in holding that the respondent has no case and the cross- objections are consequently rejected. It will not be out of place to mention here that neither custom has been proved nor has adverse possession been proved by the non-applicants, therefore, we uphold the finding of the learned Court below."
' The grouse of the learned counsel is that although the main controversy centres round issue No. 1, reflected above, the High. Court has neither discussed the evidence produced by the parties about it nor given any reasons for agreeing with the finding of the District Judge. According to the learned counsel the judgment thus does not fulfil' the condition of a judgment as laid down under Order XLI, rule 31 of the Code of Civil Procedure and the case is to be remanded for recording the decision afresh in accordance with law.
' As against this Qazi Abdul Ghafoor, the learned counsel for the respondents, submitted :-
(1) that the cross-objections filed by Sakhi Muhammad in the High Court, appearing at page. 29 of the file, do not challenge the finding of the District Judge to the effect that the evidence lacks to prove that during Dogra Regime the parties were bound by any custom depriving Mst. Zainab Bibi to inherit the land of her father. Sakhi Muhammad, therefore, according to him, stands estopped to agitate this point before this Court ;
(ii) that even in Dogra Regime Muslims were presumed to be governed by Law of Inheritance recognised in Islam and to deprive a Muslim of his share under some custom, such a custom must be specifically pleaded and proved. In his view, in this case Sakhi Muhammad in his objections in reply to the reference before the District Judge has not pleaded any specific custom under which Mst. Zainab Bibi could be deprived from her entitlement in the land left by her father under the Muslim Law of Inheritance and therefore, Sakhi Muhammad now cannot take up such a plea ; and
(iii) that the death of Sher Muhammad even according to the statement of. Sakhi Muhammad falls somewhere during or after the year 1948 when Muslim Law of Inheritance was, applicable to the parties. He has referred us to the relevant portion of the statement of Sakhi Muhammad which is to the effect : {FOONOTE}}
(1) PLD 1971 Azad J & K 1 (2) PLD 1971 Lab. 77 10f" Lt.; 412...1.3 0.1 Lye _trt"
(1) PLD 1971 Azad J & K 1 (2) PLD 1971 Lab. 77City. YI CP Jtsuil 144 .01 Liar T ' In the estimation of the learned counsel, in view of the statement of Sakhi Muhammad, the death of Sher Muhammad shall be presumed after 1948 when Muslim Law of Inheritance was on the statute took and the property left by Sher Muhammad would devolve on all who were heirs of Sher Muhammad under the Muslim Law of Inheritance.
6. After giving or considered thought to the arguments advanced at the bar we are of the view that the arguments advanced by Qazi Abdul Ghafoor carry substance.
' Firstly, we come to the ground which is of weight and has been very seriously pressed before us.
The point is whether the evidence produced before the District Judge establishes the 'death of Sher Muhammad in Dogra Regime or it leads us to the conclusion that Sher Muhammad died when the Muslim Law of Inheritance was on the statute book in Azad Kashmir. On the point the statement of Sakhi Muhammad referred to above when read jointly with the entry in reference made by Mst.
Zainab Bibi before the District Judge, to the effect that Sher Muhammad was not heard of from the last eight years, furnishes satisfactory evidence to hold that by legal fiction Sher Muhammad would be said to have died during Azad Regime. We say so because Sakhi Muhammad says that mutation in the name of Sakhi Muhammad and Eidoo was entered in 1995 Bk. But it was only attested in the year 1957 A. D. Apprehending that Sher Muhammad may turn up at any moment.
From this statement it transpires that Sher Muhammad died somewhere in 1948.
7. The statement of Sakhi Muhammad coupled with the assertion in the reference makes us to believe that Sher Muhammad was not heard of for seven years prior to the mutation of his land entered in the names of Sakhi Muhammad and Eidoo in the year 1957.
8. It may be stated that there appears no difference between the law of Pakistan enacted under section 108 of the Evidence Act and the Law of England which was enunciated in Re Phene's. Trusts (1), Harnam Kaur v. Ratna (2) In Re Phene's Trusts case the point was resolved ' with following observation :- "If a person has not been heard of for seven years, there is a presumption of law that he is dead ; but at what time within that period he died is not a matter of presumption but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential."
' But in the case before us even if we take the death of Sher Muhammad on the first day of seven years from which he was not heard of it would take back his death in the year 1950 when the parties being Muslim were governed by Muslim Law of Inheritance and Sakhi Muhammad was only entitled to his share out of the land of Sher Muhammad under the Muslim Law of Inheritance.
9. The judgment of the High Court, it appears, was given after going through the evidence of the parties and nothing has been pointed out to show misreading or non-reading at the stage of the reference Judge. Besides, we have to see whether there is any viable case for consideration warranting remand of the case to the High Court ? The learned Judges in the High Court disposed of the cross-objections with the following observation :- "But on merits we have no hesitation in holding that the respondent has no case and the cross- objections are consequently rejected. It will not be out of place to mention here that neither custom has been proved nor has adverse possession been proved by the non-applicants, therefore, we uphold the finding of the learned Court below."
10. No doubt, the reasons for the decision are not expressly stated by the appellate Court as fully as they ought to have been ; but we are satisfied upon the judgment that the learned Judges of the High Court had read the evidence and meant to find upon that evidence as a whole that the decision of the lower Court touching the case of Sakhi Muhammad listed in his cross-objections does not justify any interference in second appeal.
11. Let us adjudge the case from another angle. Even assuming the {FOONOTE}}
(1) 5 Ch. 139 (2) 1949 E P 267 death of Sher Muhammad in Dogra Regime Sakhi Muhammad or his daughter, the appellant, cannot claim the land left by Sher Muhammad to the exclusion of his daughter Mst. Zainab Bibi, respondent. No laboured argument is required to hold so. In Jammu & Kashmir State even in Dogra Regime Muslims were presumed to be governed by law of Inheritance recognised in Islam and to deprive a Muslim of his share under some custom, such a custom must have been spacificaliy pleaded and proved. Here in this case no such specific custom is pleaded nor there is satisfactory evidence to establish any such custom. Apart from the above we are of the view that the appellant is estopped to raise the point that the parties were governed by any custom in Dogra Regime depriving Mst. Zainab Bibi, daughter of Sher Muhammad, to have any share out of the land left by her father. The cross- objections, filed by Sakhi Muhammad in the High Court, appearing at the page 29 of the file, do not challenge the finding of the District Judge that during Dogra Regime the parties were governed by any custom depriving Mst. Zainab Bibi to inherit the land of her father Sher Muhammad.
12. Where a party raised before a Court an objection but subsequently abandoned the same (as the case is before us) the principle of estoppel b conduct would be applicable to such a party with full force. The issue abandoned in the lower Court by a party cannot be raised by that party in appeal. Where a party to an appeal has assumed the attitude in the lower Court as to the theory of his case or as to question of law or fact upon which theory his case is based, he is estopped to assume any other o inconsistent position in the appellate Court but must stand or fall on the theory which he first adopted. We may state here that sections 115 and 117 of the Evidence Act are exhaustive of the rules of estoppel which are rules of evidence. But as pointed out by Garth, C J., in Ganges Manufacturing Co. v. Sourujmull (1) estoppels in the sense in which the term is used in English legal phraseology are matters of infinite variety and are by no means confined to the subjects which are dealt with in Chapter VIII of the Evidence Act.
13. On the basis of the above state of law we have no doubt in or mind that Sakhi Muhammad and now his daughter, appellant, cannot take up the stand that the parties were governed by custom because such a stand has been abandoned before the High Court.
14. Our above discussion would show :-
(i) that there is nothing to hold that Sakhi Muhammad died during Dogra Regime ;
(ii) that even if we hold that Sher Muhammad died during the Dogra Regime the evidence and the pleadings are short to establish any specific custom depriving Mst. Zainab Bibi to inherit the land under Muslim Law of inheritance from her father; and
(iii) that Sakhi Muhammad or his daughter, the appellant, are estopped to plead any custom depriving Mst. Zainab Bibi to inherit her share from the land of her father under Muslim Law of Inheritance.
15. So far the question of adverse possession is concerned it has been conceded by the learned counsel for the appellant even that the evidence is short to establish this plea.
16. Before parting with the case we may state that a remand of an easel is only necessary when a prima facie case is established and the wisdom of {FOONOTE}}
(1) 5 Cal. 669 ' the lower Court seems to be essential on the point. But when remand would serve no purpose and the case can be decided by us without affecting the case of a party, it would be a futile exercise to remand the case. In this view of the matter we do not consider it necessary to accede to the request of the learned counsel for the appellant and send the case back to the High Court mainly for the purpose of recording finding in so many clear words specially when we ourselves can look into the evidence recorded by the reference Judge.
' For the above-stated reasons the appeal must fail. So we order accordingly. No order as to costs of this Court.