' This IInd Appeal under section 100, C.P.C. Is directed against the judgment and decree dated 3rd March, 1971 passed by the learned IInd Additional District Judge, Hyderabad, whereby he set aside judgment and decree dated 31st January, 1965 of the learned IInd Extra Joint Civil Judge, Hyderabad, in Civil Suit No, 613 of 1962. The facts in the background are briefly stated below:
2. The parties are at litigation over a piece of land bearing S. No, 169, measuring 6.4 acres, in Deh Jamshoro, Taluka and District Hyderabad. This land originally belonged to Bachal Bhatti who died about a century ago. Both the parties claim the land through him by way of inheritance. There is dispute between them over their pedigree. The appellant's case, at the initial stage, was that the original owner Bachal Bhatti was survived by three sons--Ghulam Muhammad, Jan Muhammad and Ghulam Hyder. The respondents did not dispute this fact. But the appellants revised their plea subsequently and stated that Bachal Bhatti had left four sons and Khair Muhammad was the fourth one. The respondents denied that Khair Muhammad was one of the sons of Bachal. The appellants asserted their claim over the land through Ghulam Muhammad, one of the sons of Bachal. According to them, they are great grand children of Ghulam Muhammad son of Bachal through one of his sons by name Muhammad Siddique. Their case in the original plaint was that Ghulam Muhammad son of Bachal was survived by two sons by names Sono and Muhammad Siddique. But they developed their case subsequently and advanced the plea that Ghulam Muhammad son of Bachal was survived by three sons, namely, Sono, Muhammad Siddique and Umar Bux. However, their stand throughout has been that they are grand children of Muhammad Siddique son of Ghulam Muhammad son of Bachal through his only son Muhammad Umar. The respondents' case is that Ghulam Muhammad was survived by only one son by name Sono who died issueless. The respondents claim the land through Ghulam Hyder, one of the sons of Bachal.
According to them, Ghulam Hyder son of Bachal was survived by only one son Lal Bux who had two sons by names Ghulam Hyder and Ibrahim and five daughters. Their case is that all the five daughters of Lal Bux and his son Ibrahim died during his lifetime. It is their case that Ibrahim left a daughter by name Mst. Hawa who was survived by a daughter Mst. Hasi the respondent No,3. There further case is that one of the daughter of Lal Bux, by name Mst. Hasi, left one son by name Abdullah, the respondent No,1, and a daughter Mst. Maryam, the respondent No,2. It is also their case that Ghulam Hyder, who had survived Lal Bux, died issueless. It is the version of both the parties that Jan Muhammad son of Bachal had died issueless. According to the appellants. Khair Muhammad, whose name was introduced by them later as fourth son of Bachal, also had died issueless. Thus, the appellants claim the land through Ghulam Muhammad son of Bachal, whereas the respondents deny their claim and assert their claim through Ghulam Hyder son of Bachal.
3. The appellants filed the Suit No, 613/62 in the Court of learned Extra Joint Civil Judge, Hyderabad, on 10th July, 1962, for declaration and that they were the owners of S. No,169.' The respondent resisted it. Issues were framed on 3rd January, 1963. They were amended twice. The issues finally settled were as under:-
(1) Is the pedigree trees of the descendants of Bachal as suggested by plaintiffs true? If not who are the real heirs of Bachal?
(2) Who are the heirs of deceased Lal Bux and what is their share in the suit property?
(3) Was Sono brother of Muhammad Siddique?
(4) Are the defendants entitled to recovery of possession over the land in dispute?
(5) What should the decree be?
4. Parties adduced evidence, oral as well as documentary. The suit was decided by the learned Second Extra Civil Judge, Hyderabad, by the judgment and decree dated 30th January, 1965. His findings were that the pedigree traced by the appellants was correct and they were owners of the land through Lal Bux as cistant kindred. He also held that Muhammad Siddique was a brother of Soro. He rejected the claim of the respondents of their ownership over the land. These findings were set aside by the learned Ilnd Additional Dis:rict Judge, Hyderabad, by the judgment and decree dated 3rd March, 1955 in civil Appeal No, 134/65 and he held that the appellants herein had failed to establish their ownership over the land and that the land hai devolved upon the respondents by way of inheritance through Ghulam Hyder son of Lal Bux son of Ghulam Hyder son of Bachal.
5. The learned counsel for the parties have laid stress on the oral as well as the documentary evidence led by the parties. The appellants' case has been pressed on the grounds that they have inherited the property through their father Muhammad Umar son of Muhammad Siddique, whereas the respondents have dispute their parentage. It would, therefore, be worthwhile to outline their pedigree. {{TABLE TEXT}} PEDIGREE BACHAL BHATTI Ghulam Muhammad
(Son) Jan Ghulam Muhammad Hyder
(Son) (Son) Khair Muhammad (Son)
Died issuless (Disputed)
Sono (Son) Muhammad umar Bux Died Siddique .(Son)
D Issueless (Son Died (Disputed)Issueless Lal Bux (Disputed) (Son)
Muhammad Umar (Son)
(Disputed) Died Issueless Ghulam Muhammad (Son)
Plt./APP. (Disputed) Mst.Darya Khatoon (Daughter) Plt./Appl. . (Disputed)
Daughter Daughter Daughter Daughter Daughter Ibrahim Ghulam Hyder (Mst.Hassi) ' (Son) (Son) Died Issueless after Died during lifetime of Lal Bux Lal Bux Abdullah (Sorb)
Def./Resp. Mst.Maryam (Daughter)
Def./Resp. Mst.Hawa (Daughter)
Mst.Hassi (Daughter) Def./Resp.
6. It is not disputed that the suit property originally belonged to Bachal Bhatti. According to the appellants, it devolved, after his death, on his four sons--Ghulam Muhammad, Ghulam Ryder, Jan Muhammad and Khair Muhammad, although their case at the initial stage was that Bachal was survived by only three sons--Ghulam Muhammad, Ghulam Hyder and Jan Muhammad. Name of Khair Muhammad as a son of Bachal was introduced later probably on the basis of an extract from Land Survey Register, 1899, Exh. 50, showing Khair Muhammad son of Bachal as a sharer in some other property.
' In any case, introduction of his name did not disturb the channel of inheritance as he is said to have died issueless and the property to his share was apportioned by other sons of Bachal named above. Another son of Bachal by name Jan Muhammad also is said to have died issueless. Conse- quently, the line of inheritance stood squeezed to the other two sons of Bachal, namely--Ghulam Ryder and Ghulam Muhammad. There is no dispute over the lineage of Ghulam Ryder that he was survived by a son by name Lal Bux, who had two sons Ghulam Hyder and Ibrahim and five duaghters, but was survived by only one son Ghulam Ryder who died issueless. It has also been brought on record that another son of Lal Bux, by name Ibrahim, having pre-deceased him, had left one daughter Mst. Hawa who was survived by a daughter Mst. Hassi, the respondent/defendant No,3. It is also not disputed that one of the five daughters of Lal Bux, having died during his lifetime, was survived by a son Abdullah, respondent/defendant No,1, and a daughter by name Mst.
Maryam, respondent/defendant No,2. For the purpose of this suit, the thread of lineage through Ghulam Ryder son of Bachal undisputedly reaches the respondents herein, whereas it is disputed in respect of Ghulam Muhammad. The appellant's case is that he had left three sons by names Sono, Muhammad Siddique and Umar Bux, although their case at the initial stage was that Ghulam Muhammad was survived by only two sons--Sono and Muhammad Siddique. Name of third son Umar Bux was introduced later probably on the basis of his name appearing in the same extract Exh. 50 from the Land Survey Register, 1899 (Exh. 50), as one of the share-holders in the land mentioned therein. In any case, the appellants/plaintiffs' claim is that they are grand children of Muhammad Siddique son of Ghulam Muhammad son of Bachal through their father Muhammad Umar. This fact is denied by the respondents/defendants as, according to them, Ghulam Muhammad had no son by name Muhammad Siddique. It would thus appear that there is no dispute about the lineage of Ghulam Hyder son of Bachal reaching the respondents/defendants, whereas the descent of the appellants/plaintiffs is disputed. It has been indicated above that the appellants/plaintiffs have improved upon their case by introducing the name of Khair Muhammad as fourth son of Bachal and that of Umar Bux as third son of Ghulam Muhammad son of Bachal as to make their case consistent with documentary evidence.
7. To prove their descent from Bachal and to exclude the respondents/ defendants from the channel of inheritance, the appellant Ghulam Muhammad has given evidence himself, as PW-1, and produced certain documents. One witness by name Gul Muhammad also has been examined as PW.
2. To rebut their evidence, the respondent/defendant Abdullah has examined himself as DW-2 and produced certain documents. Two more witnesses Imdad Ali Shah DW-1 and Allandino DW-3 also have been examined. Oral evidence adduced by the par.Ties portrays their respective pleadings.
Its evaluation is dependent upon documentary evidence.
' The documents produced by the appellants are:--
(1) A certified copy of an extract from record of rights (Exh. 26) reflecting mutation of eight annas share in C.S. No, 169 (the suit property) of Ghulam Ryder son of Lal Bux in the name of Muhammad Umar son of Muhammad Siddique consequent upon death of the former. Entry is dated 22nd January, 1962.
(2) An order dated 3rd/6th July, 1962 of Assistant Commis- sioner Halla (Exh. 27) setting aside order dated 13th July, 1940 of the City Mukhtiarkar, Hyderabad, effecting mutation of the suit land in the name of Ghulam Ryder son of Lal Bux and Muhammad Umar son of Muhammad Siddique in equal shares.
(3) A certified copy of an extract from Land Survey Register of 1899 (Exh. 50) showing that S. No, 138 stood entered in the names of Sono, Siddique and Umar Bux sons of Ghulam Muhammad and Khair Muhammad son of Bachal.
The documentary evidence adduced by the respondents consists of:-
(1) a certified copy of an extract from the Revenue record for the year 1905-06 (Exh. 6) wherein the S. No, 169 was originally entered in the names of Sono son of Ghulam Muhammad, Jan Muhammad son of Bachal and Lal Bux son of Ghulam Ryder in equal shares, but names of Sono and Jan Muhammad stood scored off.
(2) A true copy of an extract from record of rights for the year 1906-07 (Exh. 61) wherein S. No, 179 (seems to be mistake for S. No, 169) standing in the names of Sono, Jan Muhammad and Lal Bux stood mutated in the name of Lal Bux son of Ghulam Ryder by way of private partition.
(3) A certified copy of an extract from Revenue record for the year 1908-09 (Exh.62) showing entire S.No,169 standing in the name of Lal Bux son of Ghulam Ryder.
(4) A certified copy of an extract from Revenue record for the year 1919-20 (Exh.63) showing S.No,169 in the name of Lal Bux son of Ghulam Ryder as a whole.
(5) A certified copy of an extract from Revenue record for the year 1937-38 (Exh.64) bearing that S.No,169 stood exclusively in the name of Lal Bux son of Ghulam Ryder.
(6) A true copy of an extract from the Register of disputed cases for the year 1939-40 (Exh.65) regarding mutation of S.No,169 in the names of Ghulam Ryder son of Lal Bux and Muhammad Umar son of Muhammad Siddique in equal shares consequent upon the death of Lal Bux.
(7) Receipts of payment of annual land revenue on behalf of Ghulam Ryder son of Lal Bux for the period from 1951-52 to 1958-59 (Exh.66 to 77 & 83).
(8) A receipt of payment of land revenue for the year 1961-62 on behalf of Ghulam Muhammad son of Muhammad Umar (Exh.78).
(9) Receipts of payment of land revenue by Lal Bux son of Ghulam Hyder (Exhs. 79 to 81).
(10) A land revenue receipt in the name of Abdullah Bhatti (Exh. 82).
8. The documents mentioned above furnish evidence in respect of the suit property form the Revenue record from the year 1905 onwards. The extract Exh. 60 reveals that suit land stood in the names of Sono son of Ghulam Muhammad, Jan Muhammad son of Bachal and Lal Bux son of Ghulam Hyder in the year 1905-06. It would appear from the pedigree of the parties at page-4 that only one son of Bachal, namely Jan Muhammad was. Surviving at that time. The pedigree further reveals that only one son of Ghulam Muhammad son of Bachal by name Sono was surviving, and Muhammad Siddique, through whom the appellants/plaintiffs agitate their claim, was not in the picture. It also excludes the existence of Umar Bux at that time. Descent of Lal Bux through Ghulam Hyder is not disputed. Of course, names of Jan Muhammad and Sono in the entries in the Revenue record (Extract Exh. 60) were scored off and that is a mystery. The extract Exh. 61 relating to the entries made in the year 1906-7. Is to the effect that shares of Sono son of Ghulam Muhammad and Jan Muhammad were assigned to Lal Bux son of Ghulam Hyder by private arrangement. This entry does not seem to have been challenged. It was maintained upto the year 1937-38 as is evident from the extracts Exhs. 62, 63 and 64. Even if it were doubted, both Jan-Muhammad and Sono had died issueless and had predeceased Lal Bux and he inherited their share in the property.
Extract Exh.65 constitutes an important document in the case. It relates to the heirs of Lal Bux son of Ghulam Hyder. It is an entry in the Revenue record made by the City Mukhtiarkar, Hyderabad, in the year 1940 after the death of Lal Bux. It was made on the basis of statements of certain witnesses.
The statements were recorded twice. Two witnesses Abdullah son of Palyo Dhamro and Ayub son of Muhammad Hassan Bagrain made joint statement that Lal Bux son of Ghulam Hyder had two sons, Ghulam Hyder and Ibrahim, and five daughters Mst. Amoon, Mst.Hassi, Mst. Soni, Mst. Zaini and Mst. Phapu. According to them, Ibrahim and all the five daughters had died during his lifetime and Ibrahim was survived by a dughter Mst. Hawa. They also stated that Mst. Amoon had left a daughter by name Mst. Hassi. They further stated that Mst. Hassi had left a son Abdullah and a daughter Mst. Maryam. They also indicated that the deceased Lal Bux had left a cousin by name Muhammad Umar son of Siddique. These facts, except the relationship of Muhammad Umar, are not disputed. The City Mukhtiarkar seems to have recorded further statement of Abdullah son of Palyo Dhamro and one another person named Muhammad Moosa son of Gul Muhammad Qureshi to the effect that Lal Bux was survived by his son Ghulam Hyder, another son Ibrahim's daughter Mst. Hawa and a cousin's son Muhammad Umar. This way, heirs of two daughters of Lal Bux by names Mst. Amoon and Mst. Hassi were excluded. The Mukhtiarkar excluded Mst. Hawa daughter of Ibrahim probably on the ground that her father had pre-deceased his father, and ordered mutation in the record of rights in the names of Ghulam Hyder 7,nd Muhammad Umar in equal shares. The mutation so effected remained intact till 1961-62 when it was revised consequent upon the death of Ghulam Hyder son of Lal Bux and the entire survey number was entered in the name of Muhammad Umar, the father of the appellants.
9. The aforesaid events reflected in the Revenue record bear out that the entire suit land stood exclusively in the name of Lal Bux right from the year 1906-07 till 1939 when the chapter of succession reopened on his death and the land having devolved on his son Ghulam Hyder was apportio9ed in equal shares between Ghulam Hyder and Muhammad Umar on the basis of statements of two three persons. In the presence of Lal Bux's son Ghulam Hyder, Muhammad Umar could not inherit any share in the property standing exclusively in the name of Lal Bux. This mischief' in the revenue record, perpetuated further when entire survey number was entered in the name of Muhammad Umar on the death of Ghulam Hyder to the exclusion of the latter's nephew and nieces who are the respondents herein. The learned Trial Judge upheld the entire claim of the appellants/plaintiffs on the ground that their ancestor Muhammad Umar, being a cousin to Ghulam Hyder, who had died issueless, held preferential right of inheritance. The learned Additional District Judge reversed that finding and held that the entire survey number had devolved upon Ghulam Hyder through his father Lal Bux and the succession opened in favour of his nephew and nieces.
10. It appears from the documentary evidence produced by the parties, already referred to above, that Khair Muhammad was one of the four sons of Bachal and his other three sons were Ghulam Muhammad, Ghulam Hyder and Jan Muhammad. Khair Muhammad and Jan Muhammad had died issueless and the property had devolved on the surviving brothers Ghulam Muhammad and Ghulam Hyder. The line of lineage of Ghulam Hyder reaching the respondents/ defendants is not disputed. As regards progeny of Ghulam Muhammad son of Bachal, the extract from the land survey register of 1899 Exh. 50 furnishes evidence that he had three sons by names Sono, Siddique and Umar Bux. But Siddique and Umar Bux went out of picture for any reason as their names did not appear in the Revenue record in the year 1905-06 and name of only Sono was entered in the record as evidenced by the extracts Exh. 60 and 61. Sono died issueless. Hence, only Lal Bux son of Ghulam Hyder became the exclusive owner of the entire suit land as borne out by the extracts from the revenue record Exhs. 62, 63 and 64. Names of Muhammad Umar, through whom the appellants/plaintiffs have laid claim over the land, does not find place on the revenue record upto 1937-38. It was only in the year 1939-40 that his name was introduced as a cousin of Ghulam Hyder son of Lal Bux. His link with Muhammad Siddique son of Ghulam Muhammad finds support only from the oral evidence of Ghulam Muhammad plaintiff and Gul Muhammad but not from the documentary evidence upto the year 1937-38. His name was introduced on the basis of statements of some strangers that he was a cousin to Ghulam Hyder. But he could not inherit any share in property left by Lal Bux in the presence of Lal Bux's son Ghulam Hyder. In the light of documentary evidence discussed above, the appellants do not stand connected with Ghulam Muhammad son of Bachal. Muhammad Umar, through whom they have agitated their claim, appeared in the picture from back door as a cousin of Lal Bux. Since Lal Bux was survived by a son Ghulam Hyder, Muhammad Umar could not inherit his property through him (Lal Bux) and the entire suit land devolved upon Ghulam Hyder. Ghulam Hyder was, undisputedly, survived by his brother's daughter Mst.Hawa, and a sister's son and daughter, the respondents No,1 and 2 another sister's daughter by Mst. Hassi, the respondent No,3. The appellants' father Umar's lineage through Bachal does not find uninterrupted support from the documentary evidence and he stands excluded from inheriting the land left by Lal Bux son of Ghulam Hyder son of Bachal, Accordingly, the suit land has devolved upon the respondents as distant kindred of Ghulam Hyder son of Lal Bux, Abdullah getting half of it and Mst. Maryam and Mst. Hassi apportioning the remaining half in equal shares.
11. Findings on other issues were not assailed and they need not be discussed.
12. The learned Advocate for the respondent agitated that the suit filed by the appellants could not be maintained in view of the bar contained under the Sind Revenue Jurisdiction Act, 1876.
Elucidating his contention, he argued that mutation made in favour of the respondent by the Assistant Commissioner, Halla, could be challenged before the appellate authorities specified in the Sind Land Revenue Code, 1879 and unless that process was exhausted, no suit could be maintained. This objection was resisted by the learned counsel for the appellants on the ground that it was not agitated in the Courts below and it could not be agitated at the stage of second appeal. In reply, the learned Advocate for the respondents urged that legal plea can be raised at any stage of litigation and he placed reliance on cases reported in PLD 1965 SC 690 and PLD 1972 Lah. 196 as supporting authorities. It is, of course, almost settled law that a substantial question of law affecting jurisdiction of a Court or a Tribunal can be raised at any stage of the proceedings of a case. But that question did not arise in this case for the reason that no relief was sought for cancellation of the order of the Assistant Commission, Halla.
13. For the reasons recorded above, the appellants do not succeed in the appeal and it is dismissed with costs.