1. ' This petition for leave to appeal is meant to discredit the judgment passed by a learned Single Judge of the High Court on 12th November, 1983, whereby the learned Judge could not persuade himself to disturb the finding concurrently arrived at by the trial Court and, on appeal, by the Additional District Judge, Poonch. Resultantly the appeal was disallowed with costs.
2. ' I have heard the learned counsel for the parties and looked into the record made available. This petition for leave to appeal entails dismissal for The following grounds :-
(a) In this case the sale-deeds executed by Mst. Makhni, widow of Muhammad Sher, of the suit land were sought to be avoided on the ground that she being a limited owner under some custom was incompetent to alienate it to Khan Muhammad Khan, the petitioner. The petitioner resisted the claim and pleaded in defence that Mst. Makhni being full owner of the suit land was competent to alienate the same. All the Courts below, including the High Court, found that Mst. Makhni was entitled to 1/4th share of the land left by Muhammad Sher and, therefore, the sale-deed to that extent executed in favour of Khan Muhammad Khan can be saved and the remaining land is to go to the share of the collaterals of Muhammad Sher (deceased) and the petitioner being the son of the real sister of Muhammad Sher is entitled to 22 Kanals 12 Marlasl of land. This concurrent finding has not been shown as to suffer from any legal infirmity calling for our interference.
(b) It is pertinent that this finding was accepted as correct by Mr. Sayab Khalid, the learned counsel appearing on behalf of the petitioner in the High Court, and I think quite correctly because Mst.
3. Makhni whether she inherited the suit land under Muslim Personal Law or under some custom, in both the cases, was only ' edited to 1/4th share of the land left by Muhammad Sher, her husband.
4. The admission honestly made by Mr. Sayab Khalid isrg binding on the petitioner, especially when this admission has not been challenged in the petition for leave to appeal:
(c) In Jammu and Kashmir State Muslims in Dogra Regime were presumed to be governed by Muhammadan Law of Inheritance unless some custom contrary to it is proved. Therefore, in the present case the burden of proof was on the petitioner to discredit the transfer made by Mst.
5. Makhni and prove that the land devolved on her as full owner under some custom or law. Though there is no issue on it but the petitioner was fully alive of this issue as he was the person who pleaded so. As there is no evidence to put a stamp of truth on this claim of the petitioner it would be said that the petitioner fallen to prove that Mst. Makhni under some custom or law inherited the land as full owner.
6. ' Before I part with the case let me make a reference to the application submitted by Raja Mumtaz Hussain Rathore, the learned counsel for the petitioner, for impleading the persons to whom during the pendency of this case the suit land is said to have been transferred by the petitioner. In the first instance no transfer document to prove the alienation is placed on the record. No affidavit even in support of this transfer accompanies the application and secondly; any transfer made during the pendency of the suit cannot transfer a better title to the transferee than the one possessed by the transferor before the transfer. Besides, the doctrine of Us pendens may also apply in such like cases.
7. ' On the view I have taken in the matter this petition fails.