Abaid Ullah Khan, J,-This appeal against the appellate judgment and decree of the learned Additional District Judge, Gujranwala at Gujrat, dated the 12th January, 1966. Which, after reversing the dismissal of respondent l's suit tor possession of the land in dispute recorded by the learned Civil Judge, Gujrat, on the 24th September, 1962, decreed the suit arises out "f the following circumstances. Ghulam Muhammad, father of respondent 1, Mst. Rahmat Bibi, was the last male owner of 71 kanals 18 marlas of agricultural land lying in the area and another plot of 11 marlas situate in the abadi of village Bhagowal Khurd, tahsil and district Gujrat. In matter of succession and alienations he was governed by agricultural custom. He died in 1924 leaving behind his widow, Mst. Hussain Bibi (respondent 1's mother) and a daughter, Mst. Rahmat Bibi (respondent 1).
Mutation no. 739 (copy exh D 2) touching succession to his landed estate was sanctioned on the 24th November, 1924, in favour of Mst. Hussain Bibi as limited owner. Mst. Hussain Bibi remarried and consequently mutation no. 865 (copy exh D 3) regarding succession of land in the name of Mst. Rahmat Bibi. Respondent 1, as limited owner was attested on the 19 h August, 192/, Vide mutation no. 1287 (copy exh D 4) attested on the 15th July, 1936. The land was mutated in the names of the male reversioners of Ghulam Muhammad, namely, Muhammad Din (deceased defendant i), Ahmad Din, sons of Hayat, Fateh Muhammad (appellant 1) and Abdullah for the reason, as ha' been mentioned in the mutation, that Mst. Rahmat Bibi (respondent 1) had contracted marriage and her limited interest had come to an end. Thereafter the name of Mst.
Rahmat Bibi as owner was excised and in her place the names of Muhammad Din. Ahmad Din, Fateh Muhammad and Abdullah were entered in the revenue papers.
2 On the 14th January, 1959, respondent 1 instituted suit for possession of half share of the landed property left by her father on the ground that she contracted marriage in 1952 and, therefore, under the provisions of the West Punjab Muslim Personal Law (Shariat) Application Act, 19 8, she was entitled to inherit her share of the property. She did not make any reference in her pleadings to mutation no. 128? Whereby the land standing in her name as limited owner had been transferred to her father's male collateral heirs, Muhammad Din, Ahmad Din, Fateh Muhammad and Abdullah.
3. The appellants and other contesting defendants resisted the suit. They averred that respondent 1 had earlier married in 1936 which marriage had ended in divorce after about two years and consequently her limited interest had terminated and, therefore, the land had rightly been mutated in their favour. Respondent 1 asserted that she did not marry in 1936 and that she contracted marriage only once in 1952.
4 The crucial question, on whose determination depends the decision of the appeal, namely, whether respondent 1 married in 1936, was answered in the affirmative by the learned trial Court and in the negative by the learned appellate Court below. The learned counsel for the parties have addressed arguments for the resolution of this question.
The learned counsel for the appellants has pointed out that the learned first appellate Court, besides misreading and misinterpreting evidence, ignored to take into account the import and significance of attestation of mutation no. 1287 in 1936 as also the fact that since then till the institute- petition of the suit it were the defendants, to the exclusion of respondent 1, who had been shown to be owners of the land in the revenue papers including jamabandis and khasragir dawari register which piece of evidence had been given due weight by the learned trial Court, The learned appellate Court belittled |the importance of mutation no. 1287 with the remarks that it was meant for fiscal purposes. It was not favourably impressed with the entries of the jamabandis and khasragir dawari register touching ownership and possession of the land in dispute in the names of the defendants. Without examining in detail it proceeded to believe the evidence produced by the plaintiff-respondent 1 and disbelieve the evidence of the appellants.
5. Mutation no. 1287 cannot be lightly brushed aside. Its attestation had the effect of depriving respondent 1 of the entire land left by her father and passing it to the other collaterals. She was about 14 years of age ia l36 and living as she was, if she is to he believed, in her mother's house, her maternal uncles, etc., and of course she herself could have taken steps to undo the damage caused with the sanctioning of the mutation. They would not have kept idle and silent in such matter for such a fairly long time. They were presumed to be aware of insertion of the names of the collaterals as owners instead of the name of respondent 1 in the revenue papers. Nothing was done durina all this time for getting respondent l's rights recognized. Inaction on the part of respondent 1 in this behalf lends support to the evidence of the defendants-appellants that she had gone in for marriage in 1936 whereafter mutation no. 1287 was sanctioned.
6. Even otherwise the evidence produced by the defendants-appellants is worthy of consideration.
Muhammad Fazil, DW 1, who is the sarbrah lambarder of village Bhagowa!, deposed that respondent 1 had been married when she was 13 or 14 years old with A lah Ditta, son of Khusbi Muhammad, DW 4. Jalal, DW 2, aged 80 years, is another witness of respondent l's nikah which according to him took place with Allah Ditta, son of Rhushi Muhammad, when she was 13 or 14 years of age. Sultan, DW 3, aged 60 years, stated that about 32 or 33 years back respondent 1 had een married at the age of 13 or 14 years with Allah Ditta. The statement of Fateh Muhammad, appellant 1, DW, 5, was also in the same vein. Muhammad Fazil, Jalal, Sultan and Fateh Muhammad bore out that respondent 1 had lived with her former husband, Allah Ditta, for about two or three years whereafter she had been divorced. Allah Ditta, son of Rhushi Muhammad, DW 4, confirmed that he had been married to respondent 1 when she was 13 or 14 years old and that she had lived with him for 2 or 3 years and then he had divorced her. There seems no apparent reason to disbelieve these witnesses.
7. On the other hand, respondent 1 led evidence to the effect that she had been married on the 12th September, 1952 and that she was virgin at that time meaning thereby that she h d not contracted marriage earlier in 1936. Abdul Malik, PW 1, is the nikahkhwan who said that he had solemnized the nikah of respondent 1 with Fazal Rarim, PW 4, on the 12th September, 1952. Muhammad Hayat, PW 2, is the husband of respondent 1's mother's sister with whom respondent 1 is stated to be patting ap when her marriage with Fazal Karim took place. Inayat, PW 3, is the step-brother of respondent 1.
Fazal Karim. PW 4, is the person who married her on the 12th September, 1952. They and respondent 1 herself while appearing as PW 5 bore testimony to the fact that she had been married ia 1952. Her marriage in 1952 with Fazal Karim is not denied by the appellants who described it as her second marriage. Respondent 1 did not produce any independent person especially any resident of Bhagowal to say that she had not been married in 1936. Her witnesses, barring Abdul Malik, PW i, are closely related to her whereas the witnesses produced by the appellants were quite independent and disinterested.
8. In view of what has been said above it is legitimate to infer that respondent 1 got married in 1936 and consequently lost right to retain the property in dispute. The finding of the learned appellate Court below was arrived at while ignoring to take into consideration the important piece of evidence as mutation no. 1287 and entries of the record of rkht and khasragir dawari register wherein the appellants and others were described as owners of the land whereas respondent 1's name was missing therefrom as also on erroneous assumptions. It cannot be legally mantained.
The appeal is accordingly accepted with costs, the judgment and decree of 'he learned appellate Court below are set aside and those of the learned trial Court restored.