1. SAJJAD AHMAD, J.-This appeal, by special leave, is directed against the decision of a learned Single Judge of the former High Court of West Pakistan (Peshawar), whereby the appellant's second appeal against the judgment and decree of the District Judge, Mardan, reversing that of the trial Court, was dismissed in limine. The brief facts are as follows The respondent, Jehangir Khan, instituted a declaratory suit in the Court of Civil Judge, Swabi, against the appellant and others for a declaration that he was the owner of 4 out of 16 shares in land measuring 207 kanals 9 marlas, situated in village Zaida, of Mardan District. It was averred in the plaint that the respondents, Safdar Ali and Abdul Qadir, were the owners of the remaining 12 shares, and that the appellant was not entitled to any share in this land, and that her name was wrongly recorded as an owner in the revenue papers. The necessity for the suit arose because the appellant had obtained a decree from the revenue Courts for her share of the produce of the land.
2. According to the plaintiff-respondent's contention, the suit property was originally owned by Wat Mir, which, on his demise devolved on his two sons, Mahmud and Nasir, one-half each. On the death of Mahmud, his share went to Latif, who was, in turn, succeeded by Safder Alt, respondent.
3. Nasir the second son of Wat Mir, and the grand-father of the respondent, also died. He had four sons, namely, (1) Akram, the father of the plaintiff respondent, (2) Sarbuland, the father of Mst.
4. Khudeja, the defendant appellant, (3) Muhammad and (4) Abdul Qadir. He claimed that Sarbuland had pre-deceased his father, and that his share also reverted to the surviving brothers, and that his widow, Mst. Habib Noor, was given a guzara according to the custom of the family, although the inheritance mutation No. 2050 pertaining to the estate of Nasir, which was sanctioned on the 29th of May 1911, shows that Mst. Habib Noor, the widow of Sarbuland, in--herited the land in dispute equally with the brothers of her husband. It was further contended that Mst. Habib Noor at no point of time entered into actual physical possession of any part of this disputed land. Mst. Habib Noor, the widow of Sarbuland, also died somewhere in 1944. Her inheritance mutation No. 4739 was attested on the 28th of April 1.945, whereby her estate was mutated in equal shares between Mst.
5. Khudeja, her daughter, and the respondent, Jehangir Khan. As already stated above, the respondent, in his suit, repudiated the claim of Mst. Habib Noor, as the holder in her own right of the estate of her late husband, Sarbuland, and consequently he also disowned that her daughter, Mst.
6. Khudeja, had rightfully inherited the half share, which was mutated in her name on the demise of Mst. Habib Noor. The appellant contested the plaintiff---respondent's suit, and the primary issue on which the parties went to trial, which determined the fate of the suit, was "whether Sarbuland, the father of defendant No. 1, died in the life time of his father, Nasir, and, as such, defendant No. 1 is not entitled to in--herit the suit property." The trial Court found that no documen--tary evidence was available on the record to show as to when had the death of Sarbuland taken place, whether before or after the death of his father, Nasir. He further held that the oral evidence produced by the plaintiff-respondent in this behalf, which consisted merely of his own averment, was of no substance. The plaintiff had also sought to prove that on the demand by Mst. Habib Noor of the share of her produce from the plaintiff---respondent, a shariat was convened, and a mulla, who was not produced, gave the verdict that as Sarbuland had pre-deceased his father, Mst. Habib Noor was not entitled to inherit the estate of Nasir. The trial Judge rightly remarked that the verdict of the mulla could not be of any effect, as it was not disclosed on what evidence the mulla had arrived at his decision.
7. We have heard the learned counsel for the respondent at considerable length, and, on a careful study of the case, we have found that the plaintiff'-respondent, in his plaint, ' as originally filed, had admitted, in paras. 1 and 2 thereof, that in the total land in dispute measuring 2(7 kanals 9 marlas, comprising in snares, Sarbuland, the father of the appellant, owned two shares in the totality of 16 shares. However, he filed an amended plaint by an application under Order VI, rule 16, whereby he sought to controvert the whole position, by alleging, for the first time, that Sarbuland had pre- deceased his father, Nasir, in the year 1904, and that Mst. Habib Noor was only given a maintenance grant, and had no title to the suit land. This amendment was allowed by the Court, which, we feel, should not have been done, because it changed the entire nature of the suit. The mutation No. 2050 attested on the 29th of May 1911, contains inherent evidence that Sarbuland had survived his father, but he died before the attestation of that mutation, and consequently his share was recorded in the name of his widow, Mst. Habib Noor. If Sarbuland had pre-deceased his father, the land would have fallen only to the three surviving sons, and the widow of Sarbuland would not have been recorded as a co-owner with the brothers of 1 /4th share of Sarbuland. It may be noted that the respondent did not challenge this mutation. His contention that Mst. Habib Noor was given a maintenance grant, and her name was continued in the revenue papers, because of that fact, does not find any support from the revenue papers. The onus was on the plaintiff-respondent to prove that Sarbuland had died before his father, and that the entries showing Mst. Habib Noor as a co-owner with him and his brothers, to which a presumption of truth attaches, were wrong. While he failed to produce any documentary evidence to prove his contention, on the oral side, he merely relied on his own word, which was controverted by the evidence of Firdaus, the husband and Mukhtar of the appellant. In the circumstances. We are constrained to hold that the finding of the lower appellate Court, in reversal of the trial Court, that Sarbuland had pre-deceased his father, was based on no evidence; whatever. This being the position, we consider that the High Court was clearly wrong in not interfering with that finding, on the view that the finding being one of fact reached by the lower appellate Court did not merit any interference in the second appeal.
8. On our view that Mst. Habib Noor succeeded her husband to the land in dispute in her own right as a limited owner under the customary law on the latter's death, which took place after that of Nasir, his father, we hold that Mst. Habib Noor held the land in dispute as a limited owner, and that on her demise the Shariat law heirs of the last full owner of this land, namely, Sarbuland, would succeed to this property, as provided by subsection (1) of section 4 of the Muslim Personal Law Amendment Act of 1950. The appellant was thus entitled to one-half share as the daughter of Sarbuland, which was rightly mutated in her favour.
9. The result is that we accept this appeal, set aside the order of the lower appellate Court as well as of the learned Single Judge in the High Court, and restore that of the trial Judge, dismissing the suit of the plaintiff-respondent, who shall also pay the cost of the appellant.