1. ' This appeal (RSA-204-71) arises out of a civil suit brought by Said Rasool and others to recover possession of 193 kanals, 10 marlas of land from the defendants Subedar Amir Zaman and others.
2. Facts which led to this suit briefly are:-Fazal son of Karamdad was owner of 71 kanals, 12 marlas of land situate at Mouza Adra Usmanzada, occupancy tenant of 30 kanals, 16 marlas and 91 kanals, 2 marlas of land situate at village Kaniat Peer Bakhsh and Chak Naban, Tehsil Gujarkhan. He died issueless in 1893. Sahab Din, his only son had pre-deceased him. On the demise of Fazal, Mst.
3. Muhammad Bi, widow of Sahab Din, was alive and succeeded to the estate of Fazal, who was the last male owner of the afore-noted two kinds of property. Devolution was given effect to through separate mutations in each of the three revenue estates. Mutation No.23, sanctioned on 15-2-1893, in regard to the proprietary rights was put in evidence, but mutations attested in regard to succession of the occupancy tenancy were not brought on record. However, it is common ground that alongwith proprietary rights, occupancy tenancy was also mutated in the name of Mst.
4. Muhammad Bi who held the land till she died on 30-12-1957, when her interests in both kinds of property were terminated and it became available for distribution among heirs. It may also be noticed that before her death, Mst. Muhammad Bi, had deposited compensation and had acquired proprietary rights in the land previously held by her as occupancy tenant. Payment of compensantion and acquisition of ownership rights took place under section 114 of the Punjab Tenancy Act, 1887. On the death of Mst. Muhammad Bi, dispute as to succession which arose between the parties was brought in the Civil Court by plaintiffs Said Rasool and others. They claimed the whole of the land as her heirs. Suit was instituted in the court of Civil Judge Gujarkhan on 5-1-1965. It was alleged that Fazal, in matter of succession, in regard to proprietary rights was governed by General Agriculatural Custom and succession to the occupancy tenancy was regulated by section 59 of the Punjab Tenancy Act, 1887. It was further alleged that though, Mst.
5. Muhammad Bi could not succeed in either systems of law, yet the two kinds of property on the death of Fazal, were received by her and held in adverse possession for more than a period of 12 years, and accordingly she acquired prescriptive title. It was further alleged that Mst. Muhammad Bi, on payment of compensation under section 114 of the Punjab Tenancy Act, became full owner of the property in regard to occupancy tenancy and the plaintiffs as her heirs were entitled to exclude defendants from succession. In the alternative, it was claimed that if Mst. Muhammad Bi could not be held full owner and is found to have held the land as limited owner, plaintiffs were entitled to 17/24 shares in the suit property and prayed for a decree of joint possession. Defendants resisted the suit. Main and substantial defence was that Mst. Muhammad Bi, as widow of predeceased son, succeeded to the estate of her father-in-law merely as maintenance holder and could not plead adverse possession nor acquire full title to the suit property. Pedigree table given in the plaint was not admitted as correct. It was also averred that Fazal was survived by two daughters Sahbo and Churan, two nephews namely, Hayat and Ghulam Ali. On the defence offered in the written statement, plaintiffs, right to get the land was denied. From the pleadings of the parties, trial Judge raised following issues:-
(1) Whether Mst. Muhammad Bi held the suit property as 'Guzaradar; If so, to what effect?
(2) If issue No.1 is proved in affirmative, whether Mst. Muhammad Bi had become owner of the suit- land by adverse possession for more than 12 years?
(3) Who are the heirs of Fazal and Muhammad Bi and what are their respective shares?
(4) Relief.
6. ' In support of the respective contentions, both parties, apart from adducing oral evidence, had relied upon number of documents consisting of revenue papers, i.e Jamabandis, pedigree tables, and extracts from birth and death registers. On examination of this material, trial Court in regard to land owned by Fazal, found that Mst. Muhammad Bi held the same as a limited onwer and not as a mere 'Guzaradar'. On issue No.2, trial Court observed that plea of adverse possession was not established. However, Mst. Muhammad Bi, on payment of compensation under section 114 of the Punjab Tenacy Act, as amended by Act VII of 1952 had become full owner of the property, which heretofore, was held by her as occupancy tenant. In regard to issue No.3, Court held that it was not established that Fazal had two daughters by the names of Sahibo and Churan. Court also held that Mst. Khan Begum was not the daughter of Mst. Muhammad Bi from Sahab Din. As to shares of the parties in the suit property, Court held that plaintiffs 1 to 6, 8 and 9 were entitled to 1/3rd share and the remaining 2/3 share was given to the defendants 1 to 12. With these findings, on 16-10-1967, plaintiffs were given decree for joint possession to the extent of 1/3rd share in the suit property, other than the property which was previously held by Fazal, as occupancy tenant. Aggrieved of this decision, both the parties preferred appeals, which came to be heard by learned Addl. District Judge, Rawalpindi. He made a clear distinction in the two kinds of the property. In regard to the property held by Fazal as full proprietor, it was held that under General Agricultural Custom, which bound Fazal in matter of its succession, Muhammad Bi succeeded to it as a maintenance holder. In regard to the occupancy tenancy, learned Judge found that though, she had no right of succession, but having once succeeded she could prescribe only for the same type of estate which she could get under General Custom found applicable to the proprietary land of Fazal. Proceeding on these premises, learned Judge further found that acquisition of proprietary rights under section 114 of the Punjab Tenancy Act, did not improve the status of Muhammad Bi and despite acquisition of ownership rights, she continued to hold the property as a maintenance holder. Accordingly it was concluded that "in view of the above findings, the result would be that the whole of the suit land including the one which was held by Fazal as occupancy tenancy would devolve upon the heirs of Fazal. One of them namely Mst. Muhammad Bi has not been proved to have survived by any heir. I, therefore, amend the decree granted by learned Civil Judge and grant the plaintiffs Nos.1 to 6, 8 and 9, the decree for joint possession for 1/3rd share in the whole of the land in suit". In second appeal, decision of the Appeal Court below, has been questioned. It was admitted to hearing on 9-3-1977.
7. ' Appeal raises three points; first, Mst. Khan Begum was daughter of Mst. Muhammad Bi from Sahab Din, second; Mst. Muhammad Bi became full owner of the property previously held as occupancy tenant, on payment of compensation under section 114 of the Punjab Tenancy Act, and the view taken in PLD 1968 (Peshawar) 94, proceeded on distinguishable facts, third; as regards the proprietary land, Mst. Muhammad Bi was admittedly in unauthorised possession, held it as a trespasser and became its full owner by adverse possession and this being her self-acquired property, shall on her death, fall on her personal heirs.
8. ' Learned counsel, on both sides have been heard at considerable length, and with their able assistance, original records have also been scrutinized.
9. ' Suit property held by late Fazal was of two kinds. One kind of property he held as full proprietor and in the other he was merely an occupancy tenant. Fazal was not survived by any male issue, the one he had died in his lifetime. Mst. Muhammad Bi widow of the predeceased son succeeded to the estate of his father-in-law as a mere maintenance holder under General Agricultural Custom, under which the widow of a predeceased son or a pre-deceased grandson who died during the lifetime of his father or grandfather, without any male issue, has in some cases the right of succession. Refer pars 86 of Customary Law in the Punjab by Om Prekash Aggarval. It reads, the widow of a predeceased son or a predeceased grand-son who died during the lifetime of his father or a grandfather without any male issue has in some cases right of succession, though it is not a usual rile. The onus of proving it is on the widow who asserts it to exist." Apart from the aforenoted rule of custom, reference with advantage can be made to the decision of this Court in Mahboob Beg v. Sharif Beg and another (PLD 1978 Lahore 1318). Headnote (a) of the report reads "Succession--Principle of representation under custom applied with full force in Sialkot District-- Widow of a predeceased son entitled to succeed to property to which her husband, if alive, would have succeeded despite his other brothers surviving father--widow in such case holds only a limited interest in property for life or till remarriage." The above represents the correct statement of law, and I respectfully agree with it. Accordingly, the decision of the Court below wherein it was held that Mst. Muhammad Bi succeeded A to the estate of her father-in-law, as a maintenance holder till life or remarriage appears to be correct. Learned counsel for the appellants have not succeeded to persuode me to take different view. No decision holding to the contrary was brought to my notice.
10. ' In regard to the other property vis-a-vis occupancy tenancy, succession was governed by section 59 of the Punjab Tenancy Act which, without any doubt or dispute, is conclusive on the question of succession to an occupancy tenant and the rule of succession laid B therein cannot be discarded on the grounds of either custom or personal law of the parties. Under section 59, as it stood on the death of Fazal, widow of a predeceased son had no right to succeed. In support, reference can be made to Chanan Singh and other v. Mt. Sant Kaur AIR 1929 Lah. 778 (1), Mst. Muhammad Bibi v.
11. Shahab-ud-Din AIR 1939 Lah.
428. Even a cursory glance at section 59 would visibly show that in order of succession widow of a predeceased son does not figure anywhere. Therefore, though, she could not succeed to the occupancy tenancy, yet on the analogy of rule of succession applied to the proprietary land, she was allowed to succeed to this property also to hold it till her life or re-marriage. As copies of mutations in regard to transfer of occupancy rights are not on record, it is difficult to understand as to how and under what circumstnces the Revenue officers came to disregard the express and clear provisions of section 59 of the Punjab Tenancy Act. Argument that despite absence of right of succession Muhammad Bi had succeeded and was allowed to maintain her possession from 1803 to 1957, when she died, she must have held the properties adversely and had acquired full title to it cannot be accepted as correct, in view of the law laid down in Ram Sarup v. Mt. Jai Devi and others AIR 1946 Lah. 272, Abdul Aziz and another v. Muhammad Khan and others PLD 1960 (W.P.) Lah. 427, wherein in similar circumstances, it was observed by this Court that the female who had inherited the property could prescribe for the same estate as she would have had if she had in fact the right to succeed under custom. As observed above, under General Agricultural Custom of Punjab, widow of a predeceased son was entitled to succeed to the estate left by her father-in-law as a limited estate holder only, enjoyable till life or re-marriage. It was on this analogy that Muhammad Bi though, not entitled to receive occupancy rights on the death of Fazal, yet was allowed to succeed.
12. Accordingly, in respectful agreement with the view of law taken in the precedent case-law, I am in no manner of doubt to say that Muhammad Bi received and held two kinds of property as maintenance holder and the plea of adverse possession set up for acquiring full ownership in the property, had no substance and cannot be accepted. Similarly, on payment of compensation in regard to the occupancy tenancy, she could not arrogate to herself the status of full proprietor.
13. Decision in Miskeen and others V/S Mst. Hassan and others PLD 1968 Peshawar 94 was approved by their Lordships of the Supreme Court of Pakistan in Rabnawaz v. Jahana (PLD 1974 Supreme Court 210), Muhammad Sadiq and another v. Ghulam Sakina and another PLD 1982 Supreme Court 1)
14. Sakhawat Hussain Shah v. Asghar All alias ZuInger All 1982 SCM R 956. Therefore, the point in regard to the legal status of Mat. Muhammad Bi, after payment of compensation and acquisition of ownership rights is now settled law beyond controversy and its correctness cannot be agitated with success. Hon'ble Supreme Court has observed that despite payment of compensation and acquisition of proprietary rights, estate of female tenant was not free from the limiting conditions under which the occupancy tenancy had initially devolved upon her which remained an inseparable incident of her tenure until, succession opened for the last male holder of the occupancy tenancy. Net result of the above discussion is that both kinds of property shall be deemed to have been held as maintenance holder. On her demise on 30-12-1957, succession opened out and the property in suit became available for distribution amongst heirs in accordance with section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948.
15. After having found that Mst. Muhammad Bi held estate for maintenance till her life or re-marriage and could not become a fresh stock of descent, next material question for decision would be as to who are the persons who shall inherit the property and what are their shares. It is argued for the appellant that Mst. Khan Begum was daughter of Sahab Din and was entitled to claim her share.
16. Both courts are agreed that on the available record, it was not satisfactorily established that she was daughter of Mst. Muhammad Bi from Sahab Din. From Exh. P.7, it transpires that Mst. Khan Begum was born on 24-1-1985, whereas vide Exh. DI Sahab Din died on 25-8-1982. From the above dates, it can easily be inferred that birth entry, Exh. P.7 could not possibly relate to the daughter of Sahab Din. Material relied upon to prove the relation of Khan Begum to Sahab Din was considered insufficient by the Courts below who found against the claim preferred by her. Application for additional evidence filed at the appeal stage was rejected by the learned Addl.. District Judge and in my view rejection was correct, because additional material sought to be let in at the appeal stage was not conclusive and further that additional opportunity to fill up the gaps left in evidence at the trial could not be permitted. Record also reveals that Khan Begum though cited as plaintiff No.7 in the suit did not bother to appear at the trial to make statement in support of her claim. Her statement would have materially assisted the decision and enabled the Court to form an opinion on the point of her relationship, after having taken note of her age vis-a-vis the date of her birth given in the Exh. P7. No explanation is forthcoming on the record and none has been given at the hearing also as to why she chose to keep her away from the Court. In the circumstances, her non- appearance as witness at the trial earns an adverse inference. Findings of the Courts below on the question of relationship being concurrent, in the circumstances of the present case, are binding and cannot be interfered with. Mr. Saraf repeated the request for additional evidence in this Court also. After careful consideration of the facts and circumstances of the case, I do not think that request for additional evidence should be accepted. There is no dispute that last male owner of the property was Fazal and not Sahab Din who never held any part of the suit property. See Mst. Amiran and another v. Nadra and 2 others (PLD 1958 (W.P) Lahore 448), Allah Ditta and another v. Bolan and others (PLD 1962 (W.P) Lahore 737, and Mst. Bano v. Mahlu (PLD 1965 S.C. 33). It is common ground that on the death of last male owner, suit property was directly mutated in the name of Muhammad Bi, not as a widow of Sahab Din who never actually held the suit property, but as a widow of pre-deceased son. Succession followed the rule of customary law. As Khan Begum was not proved to be grand-daughter of Fazal who admittedly was last male onwer of the suit property, she could not be given any share. Learned Courts below, therefore, were not erroneous in holding against her. Appellants raise no dispute in regard to the shares received by the parties in the suit property. Close scrutiny of the memo of appeal filed in this Court also clearly shows that appellants are not aggrieved on the shares allotted to them in the suit property. No good ground has been shown to exist for differing with the learned Court below. Its decision is correct and call for no interference. Except for the points noted above and dealt with, learned counsel for the parties did not address the Court on any other ground. For the reasons set out above, second appeal is found to be without merits and is accordingly dismissed with costs.