1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to the successors-in-interest of an unsuccessful plaintiff to examine whether the Lahore High Court by its judgment dated 28-1-1981 justifiably reversed the concurrent finding of fact recorded by the to Courts below.
2. Khuda Bakhsh owned at the the of his death 136 Kanals 10 Marlas of land in Mauza Allahabad Tehsil Liaquatpur district Rahimyar Khan. He died on 14-10-1922. Leaving behind a son Jin Wadda the predecessor-in-interest of the appellants and Mst. Talehan the widow of his pre-deceased son Allah Wasaya. A mutation of inheritance (Mutation No.976)was entered on 20-10-1922 and was attested, in spite of the protest of Jin Wadda, in favour of Mst. Telehan to the extent of one-half and in his own favour to the extent of remaining one-half. It was on the 5th October,1961 that Jin Wadda filed a civil suit seeking a declaration that he was-the sole heir of Khuda Bakhsh his father and entitled to own the entire property left by him. Mst. Talehan, according to him, had colussively and fraudulently got entered the mutation of inheritance in her favour to the extent of one-half.
3. Nevertheless, Jin Wadda claimed that he had 'been continuously in possession as owner giving no share to Mst. Telehan. The necessity for civil suit arose because, according to him, Mst. Talehan Bibi had started interfering with his rights and asserting her own. The suit was contested and the following issues were framed:-
(1) "Whether the late Khuda Bakhsh Khan was governed by custom in matter of alienation of and succession to land? If so, what is that custom?
4. (2)Whether the defendant (Mst. Talian) has perfected her title to the land in suit through adverse possession for over 12 years?
5. (3)Whether the suit is not properly valued for the purposes, of court-fee and jurisdiction?
6. (4)Relief."
7. The learned trial Judge after considering the entire case held that the parties were governed in the matter of inheritance in 1922 by Shariat; that Mst. Talehan was stood excluded from inheritance of Khuda Bakhsh, and that she had not perfected her adverse possession as she was not in possession at all. The suit filed by Jin Wadda was decreed on these findings with costs against Mst..
8. Telehan on 27th of April,1962.
9. An appeal was filed by Mst. Talehan which was allowed by the District Judge on 16th of July, 1963. It was held that the parties were governed by custom which entitled Mst. Talehan to receive one-half share. Her possession was found to be rightful and not adverse. The suit of Jin Wadda was dismissed.
10. In second appeal An Wadda succeeded as it was found that there was an apparent error in the judgment of the first appellate Court inasmuch as Mst. Talehan was held to be a widow of Khuda Bakhsh instead of being dealt with as widow of a predeceased son of Khuda Bakhsh. The appeal was remanded to the District Judge for re-hearing.
11. The Additional District Judge re-heard the first appeal and held that Mst. Talehan could not claim any share in the estate of Khuda Bakhsh in 1922 when he died neither under custom nor under Shariat. Her plea of adverse possession as against Jin Wadda also did not succeed. The findings of the trial Court were affirmed and the judgment and decree maintained.
12. The High Court held the mutation of inheritance attested in 1922 was in accord with custom and the strength of that custom was established from the fact that the objection of Jin Wadda to, such a devolution did not prevail then and he did not challenge it for 38 years. It was also held by the High Court that Mst. Talehan Bibi had also prescribed her title as limited owner by adverse possession against the plaintiff. On these findings, the second appeal was allowed, the concurrent finding of the to Courts below was set aside and the suit filed by Jin Wadda and prosecuted by the appellants as hissuccessor-in-interest was dismissed leaving the parties to bear their own costs.
13. The learned counsel for the appellants has taken up a number of technical or formal objections to the proceedings in appeal filed by Mst. Talehan in the High Court. In the first place, it is contended that the appeal was filed beyond the period of limitation and was barred by to days. An explanation was given by Qadir Bakhsh, the attorney of Mst. Talehan Bibi explaining the delay on account of non-availability of the court-fee stamp. According to the learned counsel for the appellants this reason given to explain the delay of to days was not only incorrect on facts but could not by itself be a ground for condonation of the delay.
14. The second formal objection with regard to the competence of the appeal in the High Court is that it was filed without a copy of the judgment of the trial Court. A note was recorded at the end of the memo of the appeal filed in the High Court which reads as follows:- "The judgment of the trial Court has been applied for and shall be filed as soon as it is available."
15. The Additional Registrar receiving the memo of appeal had recorded a note that :- "The counsel may be asked to file the copy of judgment of the trial Court by an early date."
16. The application was filed on 22-3-1980 by the heirs of Mst. Talehan that they came to know about the absence of copy of the judgment of the trial Court on 24-2-1968 and the copy was filed on 19- 3-1968. Even then the appellant had resisted the admission of copy at a late stage on the ground that though the appeal was lodged on 7-12-1965 the copy of the trial Courts judgment had not been filed. Even an application for its copy was presented on the 24th of February1968 i.e. About to years and to months after lodging of the appeal.. This indolence on the part of the appellant could not have been condoned when there was no affidavit of the counsel who had in fact filed the appeal without the trial Courts judgment. The learned counsel for the appellant has in support of his objection relied upon Ali Khan v. Shahzaman 1980 SCMR 332, Messrs Yasin Sons Ltd. Multan v.
17. WAPDA, West Pakistan, Lahore PLD 1977 Lah. 937, The Custodian Evacuee Property, Punjab v. Parbhu Dayal AIR 1960 Punjab 298, Nathoo v. Ghulam Dastgir AIR 1926 Lah. 638 and Mathra v. Ram Singh AIR 1927 Lah. 747. It has been urged that the delay of each day had to be explained and as no satisfactory explanation was available on the record. This delay could not be condoned.
18. The third objection of the learned counsel for the appellant relates to the abatement of the second appeal in the High Court on the death of Jin Wadda the predecessor-in-interest of the appellants and failure of the respondents to implead his legal heirs. It is stated that Jin Wadda died on 1st of December, 1966 application for setting aside the abatement and for impleading his legal heirs was filed after one and a half years on 23rd of May,1968. Though the learned Judge in the High Court set aside the abatement and condoned the delay with regard to impleading his legal representatives, the contention of the learned counsel for the appellant is that it could not have been done on account of the manifest neglect on the part of the defendants-- respondents who were the appellants in the High Court to do the needful promptly.
19. Another objection with regard to the representation of successor-in-interest of Muhammad Shafi son of Jin Wadda is that Khuda Bakhsh was impleaded but not as a minor though he was in fact a minor and no guardian ad litem was appointed in the High Court. Similarly, another successor-in- interest Razia Mai was not impleaded at all. The facts show that one Raza and not Razia Mai was impleaded as successor-in---interest of Muhammad Shafi and the learned counsel for the respondents explains that it was mere a clerical mistake. It is conceded that Khuda Bakhsh minor was not proceeded against through his guardi ad litem but even this is explained by saying that these were the defects in arraigning parties before the High Court in second appeal to which no objection was taken. In the Supreme Court, there was no such defect as both these heirs of Muhammad Shafi were impleaded and on their own request they were transposed as respondents from the category of the appellants. As such there was no defect with regard to party or representation in the Supreme Court. The defect if any existed in the record of the High Court which not having been objected to by the learned counsel for the appellants cannot be taken up seriously as a ground for resisting this appeal. In support of the proposition, the learned counsel for the respondents has relied on Saeedullah Khan v. Kaki Jan PLD 1962 (W.P.) Pesh. 171 and Jamiyat Ali v. Mrs.Chamon Ara Begum PLD 1968 Dacca 190.
20. The last ground of this category taken up by the learned counsel for the appellants is that Qadir Bakhsh the husband of Mst. Bachal was not impleaded at all as a party when Mst. Bachal died in 1979. Even with regard to this there does not appear any objection in the proceedings before the High Court. The learned counsel for the respondents, however, contends that as the death of Mst.
21. Bachal took place in 1979 after the Law Reforms Ordinance had been enforced the abatement will not take place on account of absence of Qadir Bakhsh. It has also been made clear that Qadir.
22. Bakhsh had been litigating throughout first as an attorney of Mst. Telehan and subsequently as the attorney of her successor-in-interest as would appear from the application filed by the appellants themselves while resisting the setting aside of abatement on the death of Jin Wadda.
23. So far as the merit of the case is concerned the learned counsel of the appellants contended that Mst. Talehan was pleading a special custom. It was, therefore. Her burden to prove that particular custom and the custom had to be very certain and clear as held in Gul Muhammad v. List. Hawa PLD 1968 Kar.. 665, Mst. Shahzada Bibi v. Amir Hussain Shah PLD 1956 SC '(Pak) 227 and Mst. Qaiser Khatoon v. Maulvi Abdul Khaliq PLD 1971 SC 334. There was absolutely no proof of such a custom because none of the witnesses was able to cite' any judgment in support of the custom or any incident or devolution of interest in accordance with this custom. In the absence of these to types of proofs, the special custom pleaded by Mst_ Talehar, Bibi would not be held proved.
24. The first preliminary objection relates to the filing of second appeal in the High Court to days late.
25. The last date for filing the appeal was 5-12-1965. It was a Sunday, then a closed holiday. On 6-12- 1965 the stamp vendor was absent and the court-fee stamp could not be obtained. It was obtained on 7-12-1965 and the same day the appeal was filed. The objection of the appellant is that if, as stated, the last day for filing the appeal was 6-12-1965 and the stamp vendor was absent the appeal could have been filed without the stamps and the deficiency made up subsequently.
26. This objection omits to take note of the peremptory words of section 4 of the Court Fees Act which prohibits both the presentation and reception of, inter alia, the memorandum of second appeal "unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as proper fee for such document" if no stamp vendor was indeed available, the inability of the party had to be excused as it was beyond its control.
27. The second preliminary objection is that the copy of the decree sheet was filed with the memo of second appeal but not of the judgment, about which it was said that an application for a copy of it had been filed but the copy itself had not been made available. A direction was given by the office to file it early. In spite of it no copy was filed. That copy which was said to have been applied for was in fact never filed. What was in fact filed was a different copy applied for and obtained long after. The High Court has dispensed with the requirements and condoned the delay. As the copy of the decree sheet had been filed it was discretionary with the High Court to condone the delay in filing the copy of the judgment particularly when the original appellant had in the meantime died and it would not have been possible to hold any fruitful inquiry into the fact whether any application for a copy had been made earlier or not.
28. The third preliminary objection relates to the abatement of second appeal in the High Court on the death of Jin Wadda in December, 1966. The High Court dealt with this question by its order dated 28-9-1968 and disposed it of in the following words-- "However, taking in to consideration the fact that original appellant Mst. Talian was an old, illiterate, Pardanashin lady and has died during the pendency of appeal and the petitioners are the legal representatives who are equally illiterate, Pardanashin village women, I consider that it is a fit case in which discretion for condonation of delay should be exercised and the abatement set aside. I will, therefore, set aside the abatement and direct that the appeal be heard on merits at an early date on payment of Rs.150 as costs."
29. The grounds given are sound, the exercise of discretion is proper and after accepting the cost the appellants are precluded from repeating their objection.
30. As regards the fourth objection about the defects in impleading the parties, we find that no such objection was taken in the High Court. If an objection had been taken at the appropriate stage a determination would have followed, and may be proper rectification taken place. At this stage it is not tenable.
31. The last preliminary objection, namely, the non-impleadment of the husband of Mst. Bachal also exhibits the same feature that is delay in raising it. Besides, death of Mst. Bachal admittedly took place after the Law Reforms Ordinance, and her absence as a party would not be fatal.
32. Coming to the merits of the case, it is correct that a party which pleads special custom has to prove it with clear and definite evidence. It is also correct that such custom has to be established by events contemporaneous or antecedent to the disputed devolution of interest. Applying this very principle the Wajibul Arz of 1927 which has been referred to and relied upon so heavily by the appellants would be entirely irrelevant. It is so because death of Khuda Bux took place in October, 1922. The Wajibul Arz of 1904 contains a recital that the rule of inheritance is Pagwand. Rattigan Digest describes and distinguishes the Pagwand rule of succession in the following words- "Pagwand is a word used where an estate is distributed in equal shares among the sons, from pag, a turban and corresponds) exactly to the phrase per capital, Chundawand is from Chund which means hair braided on the top of the head and is applied where the division is governed by the number of mothers, the sons however few by one wife taken a share equal to that of the sons, however many, by another."
33. More relevant is the following (ibid)
34. "The widow of a sonless son who predeceased his father, is in, some tribes permitted to succeed to his share, but the right is not universally admitted and the onus of proving it lies on the widow who assert it to exist."
35. Thereafter is contained a list of tribes and localities of the Punjab (Bahawalpur State not included) where such a custom prevails.
36. In the case before us the three factors which establish the prevalence of such a custom are the enquiries conducted by the Revenue Officer in that very locality concerning these very parties or their predecessors-in-interest and recognition of such a custom overruling the objection of the appellant who was repudiating such a custom. The next is the conduct of the appellant himself that he not only then but continuously thereafter for about forty years submitted to it without demur. There are indeed numerous documents showing that he and Talian have been dealing with the property together right from 1927. This will lend positive support to the claim made by the widow. Finally the appellant may technically be within the in instituting the suit but that does not imply that after forty years of submission he can demand or insist on the same evidence, quality- wise, as could be produced in 1924 or should normally be produced for proving a special custom.
37. The trial Court considered the Wajibul Arz of 1904 irrelevant on the ground that it applied to a locality and not to any particular tribe. This was clearly a mistaken view. If all the tribes living in particular locality have a uniform custom then it will be so expressed and in no other manner.
38. Where uniformity was lacking as in Wajibul Arz of 1927 it was clearly expressed. Where the necessary presumptions arising out of the revenue record or the prolonged conduct of the parties is not raised, the High Court in second appeal is justified in interfering with the findings. We, therefore, find that the appeal has no merit and it is dismissed with costs.