' The appeal is addressed against the order of the learned District Judge, Mirpur, passed on 2nd April, 1983, whereupon recording dis agreement with part of the finding of the trial Court, on the question of limitation and want of inclusion of consequential relief for possession, the plaintiff's suit was decreed.
2. The appeal raises a controversy relating to status and competence of Mst. Mirza Begum, donor, to execute gift of the suit land in favour of Fazal Hussain, defendant-appellant. According to the plaintifff, the donor being a limited owner, was incompetent to execute the gift, whereas the counter-claim was that she enjoyed full title of ownership in the suit land, as such transaction of gift was valid.
3. The undisputed facts relevant to the controversy are that Ghulam Muhammad, the last owner of the suit land, was servived by Mst. Mirza Begum widow, Mst. Hassan Bi, Mst. Fatima Bi, Mst. Mukhtar Bi, daughters, Burhan Ali, Muhammad Zaman, Khan Muhammad and Sawar Khan (plaintiff), collaterals. The suit land is measuring 30 Kanals 11 Marlas, out of 244 Kanals 7 Marlas, out of Khatas Nos.596 to 609, Khewats No.69/70, in addition to share in Shamlat, situate in village Ankar, Tehsil Dadyal. On the death of Ghulam Muhammad mutation of his estate was sanctioned in favour of his widow alone, to the exclusion of daughters and collaterals. Mutation Exh.P.D., is numbered as 301. It was sanctioned on 1st Phagon, 2002 Bk. Mst. Mirza Begum was also known as Mst. Phullan Bibi, as such name was entered in other mutation Exh.R.A.A./2, No.2549, pertaining to the estate situate in village Sultanpura, Dhoke Chhaja, Tehsil Jhelum, attested on 7th August, 1968. She executed the gift of entire estate acquired by her from her husband, in favour of Fazal Hussain, defendant-appellant, on 6th July, 1968. Sawar Khan, plaintiff challenged the execution of gift for want of authority as, according to him, the donor being a limited owner in the estate, was incompetent to execute the gift in favour of Fazal Hussain, defendant-appellant. The counter-claim was that the donor was full owner of the property, as such, the transaction was valid. The trial Court dismissed the suit on the ground of limitation and for want of inclusion of consequential relief for possession of the suit land.
On merits, it recorded Mst. Mirza Begum as a limited owner and cancelled the gift for want of authority. On appeal before the learned District Judge, an amendment to introduce consequential relief of possession, was allowed by him. The objection of limitation was overruled and on merits, the learned District Judge concurred with the finding of the trial Court and decreed the suit.
4. Raja Muhammad Siddique Khan, the learned senior counsel representing the appellant, contended that Ghulam Muhammad, ancestor of the parties, held an occupancy tenancy in the suit land and on his death, the tenancy devolved on the widow to the exclusion of daughters and collaterals, as contemplated under the provisions of Tenancy Act. On enforcement of 'Ailane-e- Shahi' of 1990 Bk., Mst.Mirza Begum, who enjoyed occupancy status in the suit land, improved her status as she was conferred upon proprietary rights of the suit land. Thus, according to the learned counsel, the widow who originally held a limited interest in the land, became a full owner. The transaction of gift was, according to him, therefore, valid. Mr. M.S.Tariq, the learned counsel for the opposite party, refuted the contention of the learned counsel for the appellant, lent full support to the finding of the subordinate Courts and contended that Ghulam Muhammad, the last owner of the suit land, himself acquired proprietary title in the suit land. The property devolved upon the widow as a limited owner under the custom.
5. It is noticed the pivot of the controversy is the time of death of Ghulam Muhammad. Despite the fact that the parties did not raise controversy relating to time of death of Ghulam Muhammad, the fact remains that evidence led by them and arguments addressed, ultimately reduces the dispute to the status of Ghulam Muhammad deceased at the time of his death.
6. The leading rule of the pleadings is that every pleading shall contain a statement of material facts, in concise shape on which the party pleading relies for his claim or defence. This principle finds mention in rule 2 of Order VI, C.P.C. Rule 2 of Order VIII, C.P.C. further contemplates that the defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise or would raise issues of faot not arising out of the pleadings, as, for instance, fraud, limitation, release, payment, performance of facts showing illegality. The plaintiff, in the case under consideration, in the opening part of his pleadings, averred that in Dogra Regime, on the death of the owner, in absence of male lineal descendant, the estate devolved upon a widow as a limited owner. In para. 3, it was reiterated that mutation of the estate of Ghulam Muhammad deceased, was sanctioned in favour of his wife as a limited owner, as such she was incompetent to execute the gift. Thus, the plaintiff, in fairness to him, in his pleadings, disclosed material facts, constituting the cause of action. In reply to the claim of the plaintiff, defendant-appellant. in para. 1 of the written statement, admitted that Ghulam Muhammad deceased was the proprietor of the suit land, rest of the claim was repudiated.
However, the donor was acclaimed as a full owner of the land. In answer to the pleadings of the plaintiff, raised in para. 3, it was averred that Mst. Mirza Begum was vested with a right to execut the gift. The aforesaid position of the pleadings of the defendan implicitly reflects that the defendant palpably omitted to raise th defence, now sought to be pressed in service in support of the gift His pleadings do not contain a defence of counter-allegations that Ghulam Muhammad held the status of occupancy tenant in the suit land at th time of his death and that his widow replaced him as such and improved her status subsequently by virtue of proclamation issued by the Rule of the State, in 1990 Bk. Such an omission cannot be lightly ignored so as to permit to raise a new defence.
The norms of procedure, strictly, lay down that parties are to adhere to and confine to thei case introduce in the pleadings. A claim not stated expressly or impliedly, cannot be permitted to be pressed subsequently, save through an amendment in pleadings. Nevertheless, the rule is not inflexible. A claim not expressed definitely and specifically or resting on an ambiguity or an ancillary or collateral claim, can be asserted, at initial stage by an amendment or by furnishing better particulars or at final state o trial or in appeal, provided the parties being alive to such a position, were shown to have led entire evidence including the evidence relevant to the claim or issue sought to be pressed, at later stage. Save that the Court shall ensure, before permitting to raise the issue, that their is no likelihood of prejudice to the other side. Likewise, a party by permission of Court, can assert ancillary claim specifically, not previously raised, and may establish it by evidence already on record, provided such a claim or relief is not totally inconsistent or inconflict with its main claim in dispute. In the present case, the rule is squarely enforce able as irrespective of palpable omission to state expressly the status of last owner at the time of his death and succession by widow under the law of tenancy, before 1990 Bk., in presence of evidence of the parties, relevant to the question under consideration, such a plea is permissible. This is so as the plea was raised at the stage of trial and both the trial Court and first appellate Court equally felt persuaded to decide the dispute in that perspective. On this premises of the matter, the controversy is permitted to be agitated here, as it is noticed that at the stage of evidence, parties somehow became alive to the real controversy and strived to establish the roots of their claims by directly touching upon the status of Ghulam Muhammad, at his death time. It appears that parties being alive to the situation, led their evidence. In oral evidence, witness of plaintiff testified that Ghulam Muhammad died round about forty years earlier, whereas the counter-testimony was that he died about fifty years before. The oral testimony on both side-revolved around the year 1990 Bk.
When the occupancy tenancy held under the State was abolished by conferring proprietary status on the occupancy tenants. The documentary evidence equally refers to the status of the last owner and his widow, at the relevant time. In my estimation, an omission to raise a definite or specific defence in the pleadings of the defendant, loses its importance on production of evidence of the parties, relevant to such defence.
7. Before embarking upon the real controversy it is relevant to mention here that the occupancy tenancy in the State was controlled and regulated by the statute, known as Jammu and Kashmir Tenancy Act. Section 67 of the Act applied to the succession of an occupancy tenant. It contemplated that when a tenant having a right of occupancy in any land, died, the right devolved:-
(a) On his male lineal descendants, if any, in the male line of descent;
(b) failing such male lineal descendants, on:-
(i) his widow, or
(ii) father's widow, or
(iii) the widow of a male lineal descendant in the male line of descent, who predeceased the late tenant: Provided that such widow has not remarried and further that the right of a female succeeding to a right of occupancy under this clause shall be extinguished on her death or remarriage, or abandonment of the land or when under the provisions of the Act, she is ejected therefrom; and
(c) failing such descendants and widow, or, if a female succeeds to the tenancy under clause (b), then when her interest terminates, on his male collateral relatives in the male line of descent from common ancestor of the deceased tenant and those relatives.
' In cases other than occupancy tenancy, in matters of succession, personal law of inheritance held the field provided a particular family or tribe opted to be governed in case of succession by special custom. This is just to highlight that in the cases of succession of occupancy tenancy, the field was held by the statute known as Tenancy Act, 1980 Bk., in case of a proprietor or owner of an estate, by personal law and by special custom or usage acknowledged by a tribe or family. But the initial presumption in the case of succession to the estate of an owner, was in favour of the personal law.
In the instant case, the claim of the plaintiff is that the widow succeeded to the estate of her deceased husband under special custom and that her title and interest in the property was limited and extinguishable by her death or remarriage. The counter-claim is that the property devolved on the widow under the provisions of the Tenancy Act and she acquired the status of full proprietorship on the enforcement of 'Ailan-e-Shahi', 1999 Bk.
8. It is relevant to have an appraisal of the said 'Ailan-e-Shahi' and the forces behind its enforcement. It is very well-known that the Ruler of the State ruled his subjects as a despot. The State people launched a consistent revolt against the Ruler as a result, a historical event in the shape of massacre of Muslims occurred on 13th July, 1931 at Srinagar. The fire of revenge of innocent bloodshed was still smouldering when the Muslims of Jammu Province, particularly Mirpur district, rose in revolt and declined to pay the land revenue to the Ruler. The unprecedented gigantic movement when touched its climax, the repelling forces of Maharaja totally collapsed, he felt constrained to request the British Government to extend its hand of assistance by sending British troops to control the situation. The history is a witness to it that the situation remained uncontrolled till the Maharaja accepted to appoint a Commission of Inquiry into the grievances and demands of the suffering Muslims. The Commission of Inquiry, known as Galancy Commission, was, therefore, appointed on 12th November, 1931. The Galancy Commission recommended, among others, that the Malikana to the State should be remitted, proprietary rights in respect of the land of which ownership was retained by the State, in Kashmir Valley and Mirpur District, should be granted to the occupancy tenants. An order conferring proprietary rights on the occupancy tenants in the light of the recommendation of the Galancy Commission, was, therefore, issued on 8th April, 1933.
By another order, on 8th July, 1933 the Maharaja extinguished his right of 'nazrana' which was to be paid on abolition of 'malikana' in the light of the previous order, it was announced that the order conferring proprietary rights on the occupancy tenants, having been already passed on the lines of the recommendations of the Galancy Commission, conferring proprietary rights on the people of Mirpur district on payment of reasonable 'nazrana' in place of present 'malikana', His Highness the Maharaja, in view of His Highness solicitude for agriculturists, ordered that proprietary rights were conferred on occupancy tenants of District Mirpur without payment of any 'nazrana'. It was further ordered that the Maharaja was pleased to order the concession, made to the agriculturists of Mirpur District, to extend to the Assamis of Kashmir Province who were conferred proprietary rights without recovery of 'nazrana'. The 'zamindars' of the Frontier districts of Gilgit and Ladakh were also granted proprietary rights, without recovery of any 'nazrana'. On the enforcement of these orders, female occupancy tenants holding tenancy under section 67 of the Tenancy Act, were declared, by judicial pronouncement of Jammu and Kashmir High Court, to have become full owners in their own right. The dictum was followed in various decisions recorded by this Court and it holds the field up to date. In order to avail the benefit of the judicial verdict. Fazal Hussain, in whose favour gift was executed by Mst. Mirza Begum, chose the avenue to establish that Ghulam Muhammad died before April, 1933 and he was succeeded by Mst. Mirza Begum, his widow, under the provisions of the Tenancy Act, whose, sub sequently, on enforcement of the orders of the Ruler of the State, issued on 8th April, 1933 and 8th July, 1933, acquired the status of a full owner.
9. It is noticed that subordinate Courts are unanimous in their finding, that Ghulam Muhammad, whose estate is in dispute, at the time of his death, possessed the suit land as proprietor and not as an occupancy tenant. It is equally decided that Mst. Mirza Begum succeeded under custom as a limited owner till her death or remarriage when her insterest extinguished and property reverted to the legal heirs of her husband, under the personal law. It is contended by Mr. M.S.Tariq, the learned counsel for the respondents, that the proposition being purely a question of fact, cannot be reviewed in second appeal.
10. Section 100 of the Civil Procedure Code postulates that a second appeal lie on any of the three grounds listed thereunder, section 101 imposes identical restrictions and leaves no room for second appeal. On any other ground. In this view of the law, a second appeal shall lie only when:-
(i) the decision is contrary to law;
(ii) a material issue of law is not determined;
(iii) a substantial error or defect in procedure produced its effect on the decision upon merits of the case.
'It is well-accepted that concurrent finding of fact, resting on no evidence or misconceived or misconstrued evidence, is a palpable error in law, as such it cannot be sustained. Likewise, an omission to decide about the evidentiary value of a document, being a substantial error in procedure, permits review of the finding of subordinate Courts, in second appeal. In the instant case, death certificate Exh.D.E., was admitted in evidence of defendant, under the objection of opposite party. Legal value of the documents, for its admission in evidence and mode of proof, was not considered by the lower Court. Raja Muhammad Siddique Khan, the learned counsel for the appellant, rightly pointed out that it was imperative to determine the legal entity of the document.
Failure on the part of the lower Courts to determine the point, enable this Court to review the case.
Moreover, during the arguments, an objection was raised that the learned District Judge wrongly refused production of additional evidence, consisting of copy of mutation and copy of Jamabandi, 1999-2000 Bk., by the plaintiff-respondent. Raja Muhammad Siddique Khan, at this stage, conceded the ,objection subject to grant of similar concession to the defendant-appellant. Apart from the joint request of the counsel for the parties, for admission of additional evidence, it was equally realised by me that documentary evidence proposed to be produced at this stage, is very material to enable to completely decide the issue. Thus, the suggestion was allowed. In presence of additional evidence recorded in second appeal, there is every justification for reappraisal of the whole case.
11. The parties led oral and documentary evidence in support of their respective claims. The oral testimony led in support of the claim of the plaintiff, consists of statements of Bostan, Zaman All P.Ws. and Sawar Khan plaintiff. The testimony of opposite party rests on the evidence of Khan Muhammad, father of Fazal Hussain, Sajawal and Fazal Hussain, defendant-appellant. Bostan, Muhammad Zaman, P.Ws. and Sawar Khan testified that Mst. Mirza Begum acquired the estate of Ghulam Muhammad as a limited owner under custom. They disclosed that Ghulam Muhammad died 40/45 years earlier. The counter-testimony is that Ghulam Muhammad died 45/50 years earlier, whose widow succeeded his estate as a full owner. It may be mentioned that Bostan, P.W., in answer to a question in cross-examination, admitted that on the death of Ghulam Muhammad, Mst. Mirza Begum succeeded as a full owner. The admission is immaterial in presence of a counter- admission made by Sajawal, D.W., who testified that in Dogra Regime there was a custom that on the death of an estate-owner, in absence of son, his widow succeeded as a limited owner till her death or remarriage, when the estate reverted to the collaterals of the last owner. Thus, the admission of Bostan was negated by the admission of Sajawal, D.W. The oral evidence has to be accepted very cautiously, particularly as it rest on the testimony of illiterate rustic villagers who are not definite and consistent on the time of death of Ghulam Muhammad. Be as it may, Khan Muhammad, father of Fazal Hussain, in concluding part of hi examination-in-chief, stated that at the time of death of Ghula Muhammad, his widow acquired his estate in succession under the law in force at the time. The preponderance of oral evidence of the parties leads to an inference that Mst. Mirza Begum succeeded her husband' under a custom. She acquired the estate to the exclusion of daughters and collaterals of Ghulam Muhammad, neither under personal law nor under the Tenancy Act. This view finds further support from the documentary evidence to be examined next.
12. Before dealing with the documentary evidence, it is relevant to mention that the entries in the record of rights and mutations are not challenged by the parties; rather the parties fully relied on the record of rights to support their respective claims. The first relevant document is mutation, Exh., P.D. No.301. In column No.4, Ghulam Muhammad is entered as a proprietor of the suit land, alongwith the other co-sharers. In column No.15, below the pedigree table of Ghulam Muhammad, death of Ghulam Muhammad was entered by local Patwari on 5th Phagon, 1999 Bk. It was endorsed by the Girdawar on 28th Phagon, 1999 Bk and mutation was attested on 1st Phagon, 2002 Bk. The entries made at the relevant time in the register of mutations, showing Ghulam Muhammad as proprietor of the land, and time of his death somewhere in 1999 Bk., go unrebutted. These entires find full support from the entries of Jamabandi,1999-2000 Bk. Exh.RAA/1 whereby Ghulam Muhammad was entered as a proprietor of the suit land alongwith the other co-sharers. Another document relevant to the proposition is a copy of mutation, Exh.RAA/2, No.2549, pertaining to the estate of Ghulam Muhammad and Mst. Phullan Bibi, situate in village Sultanpur, Dhoke Chhaja, Tehsil Jhelum. In column No.12 of the document, Mst. Phullan Bibi (Mst.Mirza Begum) was entered as 'Mashroot Malika' limited owner. The mutation relates to the estate of Mst. Phullan Bibi deceased, widow of Ghulam Muhammad as the same was attested in favour of daughters and collaterals of Ghulam Muhammad. As against this, defendants produced copy of Misal-e-Haqiat, 1986-87, Exh.DA/2, copy of Jamabandi 1957-58, copy of Mutation Exh.D.B. No.885 and copy of death certificate, Exh.DE.
' The 'Misal-e-Haqiat' enters Ghulam Muhammad as an occupancy tenant among other co- sharers. This document has no value as Ghulam Muhammad was admittedly occupancy tenant before 1933 (1990 Bk.). It, obviously does not help to ascertain the time of death of Ghulam Muhammad. Likewise, copy of Jamabandi, 1957-58, relied by both the parties, is not helpful to determine the time of death of Ghulam Muhammad. The mutation, Exh.DB, is equally irrelevant as it relates to the gift deed executed by Mst. Mirza Begum in favour of Fazal Hussain. The document, Exh.DE is a certificate of death whereby Ghulam Muhammad was shown to have died on 6th March, 1932. The document was admitted in evidence under objections of the plaintiff. The subordinate Courts failed to decide the objections but equally rejected the document out of consideration, without assigning tentative reasons. It is accepted that the document was issued by the District Health Officer, Jhelum. The document is, therefore, described as a foreign document.
The provisions of section 78 of the Evidence Act are, obviously, attracted and unless the document is found certified strictly according to the rules of evidence laid down under section 78 of the Act, it cannot be accepted as a legal evidence. Section 78(6) of the Evidence Act postulates that a foreign document is admissible in evidence provided it is a public document in original or by copy certified by the legal keeper thereof with a certificate under the seal of a Notary Public or diplomatic agent, the copy is duly certified by the Officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country. The learned counsel for the appellant was unable to satisfy that the document in question was maintained according to a particular law in force in Pakistan. Unless it was explained that the document was maintained under specific law of Pakistan, it was unreason able to accept the document as legal evidence. In addition to that, the document does not bear the certificate under the seal of the Notary Public from Jhelum. This was a condition precedent. In absence of fulfilment of the condition, the document does not attract the attention of this Court in the eye of law. The defendant who acquired copy of the document on 4th January, 1980, failed to explain as to why the document was kept behind and it was only brought to the notice of, the Court on 4th March, 1981 when he appeared as a witness in the court. In absence of such explanation for withholding the document for a pretty long time and despite the objection raised by the learned counsel for the plaintiff at the time of admission of document in evidence, the defendant failed to set the legal loopholes removed in due time. The certificate, Exh. DE, therefore, cannot be relied upon. A word may be mentioned that Fazal Hussain who was in possession of the copy of Exh.D.E., containing a definite date of death of Ghulam Muhammad, in his testimony, failed to adhere to the date of death entered in the certificate, Exh.D.E. Khan Muhammad, his father, equally failed to give count of exact date of death, despite presence of the document in their custody. This suggests that the defendant himself was feeling guilty about the spurious nature of the document.
13. The overall appreciation of evidence and pleadings of the parties leads to the inference that the defendant was indefinite and uncertain about the defence at the initial stages. At the time of recording o evidence of the parties, however, it dawned upon him to introduce anH aferthought defence of death of Ghulam Muhammad, before the enforce ment of 'Ailan-e-Shahi' (dated 8th April, 1933 and 8th July, 1933), whereby occupancy tenancy held under the state was extinguished an proprietary rights were conferred on the tenants enjoying occupancy rights at the relevant time.
Under these circumstances, I am not satisfied to record disagreement with the concurrent finding of the subordinate Courts on the merits of the case. The additional evidence admitted in second appeal lends further support to the conclusion arrived at by the subordinate Courts.
14. There is no force in the appeal. It is, therefore, dismissed with costs.