This R.S.A. By the plaintiff, Pir Bakhsh comes, from the judgment and decree of the learned District Judge, Sheikhupura, dated 19-5-1983, whereby the appeal of the plaintiff against, the judgment and decree of the learned Civil Judge, Sheikhupura, dated 19-4-1980, was dismissed. The learned Civil Judge had, by his judgment dated 19-4-1980 dismissed the plaintiffs suit. ,
2. The dispute sought to be resolved in this litigation is between the two brothers, Pir Bakhsh, plaintiff, and Rahim Bakhsh, defendant. The plaintiff w born in 1915 and' the defendant, Rahim Bakhsh, was born on 12410-1924 (Exh.134).
3. Jalal, father of Pir Bakhsh and Rahim Bakhsh, was owner ,of as muchas 90 squares of land in village Lambere, District Sheikhupura. On 5 '917, Mutation No.28 was attested by which Jalal purportedly transferred.The whole of his land in the village by way. Of gift in favour of the plaintiff, his dnly son. Pt that time. Jalal was blessed with anot ' her son, kahim, Bakhsh, defendant," on 12-10- 1924 and on 14-12-1926, Mutation No.631 was attested, by which Jalif liad the name of Rahim Bakhsh added as owner of one-half of his land,with Pir Bakhsh.
4. This suit was brought by Pir Bakhsh on 13-7-1971. It was a suit for, a declaration that the Mutation dated, 14-12-1926 in the name of Rahim Bakhsh was ineffective as against his rights. It was-said that at the date',of Mutation No.63, viz. 14-12-1926, Jalal was not the owner of the land and the purported transfer of one-half of his land in favour of Rahim Bakhsh was of no legal effect. The said mutation was the result of collusion and fraud and the plaintiff, so he pleaded, had not known of it till 22-9-1966 when the Jamabandi forthe year 1965-06) was prepared.
5. The case, thus, tried to be set up by the plaintiff in his plaint was that Mutation No.63 dated 14-12- 1926 was wrong and as the occurrence of Rahim Bakhsh, defendant's name in the record-of-rights on the basis of that mutation was a case of wrong entries, he was entitled to have those entries corrected.
6.The defendants in the suit were Rahim Bakhsh and Muhammad Akram and others, who were transferees from Rahim Bakhsh. They filed a joint written statement, contesting the suit. It is sufficient to say that they raised two principal grounds of defence:
(i) That Jalal was competent to transfer the land in suit in his.Favour as he did by Mutation No.63 in therefore, the transfer thereby effected was a valid transfer; and
(ii) that the suit was barred by time. It was said that the defendants had since 1926 been in continuous possession of the land in suit as owners; that they had been dealing with the land as owners and that their possession had been hostile and adverse.
7. The parties' pleadings gave rise to six issues; of them, the crucial issues are issues Nos.1, 2 and 5.
Issue No.1 is whether the suit is within time; issue No.2 is whether the plaintiff is in possession of the land in suit and if not, what is its effect and issue No.5 is whether the plaintiff is the owner of the suit land and the entries in the revenue record are incorrect.
8. The learned Civil Judge discussed the parties' evidence, oral as well as documentary at great length and found both issues Nos.1 and 2 agamist the plaintiff. He had no hesitation "whatsoever in, agreeing with the defendants on the point that the plaintiff has never been in physical or constructive possession of the suit land" and that section 18 of the Limitation Act, 1908 could not help him. He held further that the plaintiff must have known of Mutation No.63 dated 14-12-1926 in the year 1935; "it was in the year 1935 when he should have known that the defendant was challenging or denying his title over the suit land". In his opinion, Article 120 of the Schedule to the Limitation Act applied and the suit was "badly time-barred". On issue No.5, learned Civil Judge returned the finding that the plaintiff had become absolute owner of the suit. Land "through gift in his favour which is evidenced by Exh.Pl/D3, capy of Mutation No.28 on 11-5-1917 and that "the subsequent gift of 1/2 of the land owned by the plaintiff to defendant No.1 through Mutation No.63 of 14-12-1926, which is Exh.P2, was without title and hence illegal". He held also that "the entries in Exh.D1, copy of the Jammabandi of the year 1926-27 and the subsequent Jamabandis which are Exhs.D2 and D.3 in which defendant No.1 was also mentioned as a co-owner along with the plaintiff were against law" ' In his opinion, "since the plaintiff did not challenge these entries within the period of limitation provided by law, therefore, he cannot now challenge these entries and the effect would be that he has lost his title in the suit land".
9. The learned District Judge, by a well-reasoned judgment, affirmed the learned Civil Judge's findings of fact and law on issues Nos. 1 and 2. As regards the findings of the learned Civil Judge on issue No.5, the learned District Judge thought that "there is some room for difference of opinion with this finding". In his opinion, a gift is perfected by actual delivery of possession and as Pir Bakhsh was a child aged about a year or two at the date of the 1917 mutation, he could not personally and "practically assume occupation and control of the property in suit". The land, "especially as it was a huge tract, was evidently being managed, at that time even by Jalal, the original owner-donor. Obviously, then, he could revoke the earlier gift and effect another one in the supersession/modification of the previous one, by co-opting his second son with the first one". Even in equity, so held the learned District Judge, "such an act on the part of the owner-donor could not be treated as improper, unfair or unjust, for Jalal was not depriving his first son of his due entitlement; he was only endeavouring to introduce parity between the two sons in the matter of distribution of his landed property".
10. It has been observed above that the plaintiff was born somewhere in the year 1915 or 1916. This was admitted by the plaintiff before the learned District Judge (see para. 6 of his judgment). That means that the plaintiff was hardly one or two years of age at the time when Mutation No.28 (Exh.Pl) was attested in his favdur. The parties were not at issue on whether Jalal was in matters of alienation governed by custom or Islamic Law. As will be presently seen, there was in the year 1935 an alienation by Pir Bakhsh/plaintiff of the entire landed property then standing in his name in this village and that alienation had been challenged by his sons by a usual customary suit. The alienation was set aside by a judgment of this Court dated 22 2-1945. However that may be, whether Jalal was governed by custom or Islamic Law, it seems to me that the plaintiff Pir Bakhsh being hardly one or two years old at the date of the mutation, therefore, as in cases of gifts under the Islamic Law so in cases of gifts under custom, where the gift is in favour of an infant by his father or other guardian, the law looks to the intention of the donor. This is the view expressed by that great Jurist, Syed Amir Ali, in his Mahommedan Law at page 113 (Fifth Edition by Raja Said Akbar Khan, Vol.1). This principle was laid down with considerable distinctness in the case of Ameerunnissa Khatoon (1875) L.R. 2 I.A.87). In such cases, to determine the real intention of the donor, his subsequent conduct has been held to be of great materiality. This would appear from a remark made by Sir Barnes Peacock in Ameerunhissa case: "But the mode in which the father dealt with the profits would be important as regards the bona fides and completeness of the gift as throwing light upon the intention."
11.In Ammeerunnissa case, the father had executed two Hibbanamas in 1254 and 1256 in favour of his infant son and had them registered but later in 1259 the infant executed an War to his father "making his probable brothers and sisters co-heirs in the properties contained in the second Hibba, and his father the manager thereor. It was held that the rights of the parties "must be determined on the basis of the combined operation of the Hibbas and Wars". The result achieved by their Lordships of the Privy Council by so reading those documents together was that "an absolute gift was not intended, and that the transaction was either purely benami, or, more probably, to be followed by a family settlement". A similar question also fell for consideration in Sultan Miya v.Ajibakhatoon Bibi (ILR 1932 Calcutta 557); there also the donee was an infant son 8 or 9 years age of the donor; the mode in which the father had been dealing with the profits of the land subject-matter of the gift -was taken into Weration for the purpose of determining the "bona fides and completeness consi of the gift as throwing fight upon the intention" and it was held that "though a giftmight be purported to be made and every overt act required by the Mahommedan law for the completion ofhe gift made be purported to have been done, yet the transfer will not take effect in the absence. Of bona fide intention.To make the gift".
12. It is remarkable to note that in both the precedent cases, Amecrunnissa case and Sultan Miya case, the donee was, at the date of the gift in his favour, as in this case,he only son of the donor.
13. I must now return to the facts of this case and apply to them the principles of law noticed above.
Mutation N6.28 dated 11-5-1917 (Exh.131)itself provides sufficient evidence of the real nature of the transaction and the intention of Jalal. It appears that Jalal was given to habits such as drinking and had been dealing with his landed property in such a way (hat his wife apprehended that the whole -,property would be squandered away leaving nothing for their children. Jalal's wife therefore, made anapplication to the revenue authorities complaining that he was squandering away the property and requesting that transfers of land being made by him should not begiven effect to. The matter was reported to the Bradri and the Bradri decided that to save the property from further alienation, there should be a gift in favour of his son. Admittedly at that time, Pir Bakhsh, plaintiff, was the only son of the parents. It was thus that Jalal also made an application to the revenue officer saying that amutation of gift be made in favour of his son. All concerned felt happy and the revenue officer attested.The mutation.
14. The circumstances, in which the mutation of gift dated 11-5-1917 came to be attested, should, in my opinion, leave no manner of doubt that there was, on theart of Jalal, no bona fide intention to make Pir Bakhsh the absolute owner of the land. It appears that at the * date of the mutation Jalal was a young man and had notet despaired of another child. His wife too was not yet past the child bearing age. The real purpose of the transaction, therefore, was to Preserve the land for the benefit ofhe family and to prevent Jalal from wastefully expending it on drinking etc. All the circumstances tend to suggest that Jalal, his wife and the infant, Pir Baklish, hadcontinued living together in the same house. The admitted facts and the inferences flowing from them all lead and lead ineluctably to the conclusion that there was noon a ride intention on the part of Jalal to make the gift in favour of Pir Bakhsh and thereby to make him an absolute owner. It is in this context and in this setting thathe subsequent mutation viz. Mutation No.63 dated 14-12-1.926 must be (Fazat Karim, J)
4 looked at and its effect considered. The two mutations read together show and show clearly that Jalal had, for all intents and purposes, remained the owner of 1B the land and when he was blessed with another son, Rahim Bakhsh, defendant, in 1924, he made him an owner of one-half of the land with Pir Bakhsh.
15. The subsequent conduct of Pir Bakhsh, plaintiff, also went a long way to show that this is how everybody concerned had treated the matter to be. The name of Rahim Bakhsh, defendant, was incorporated as an owner with Pir Bakhsh, plaintiff, in the Jamabandi for the year 1927-28 (Exh.D1) and his name as owner has continued to be so recorded in all the subsequent record--of-rights.
Reference in this behalf may be made to the copies of the record-of--rights from the year 1931 to 1968 (Exhs.D2 to D8). On account of his ownership of this land, Pir Bakhsh was Lambardar of the village. In 1935, a very significant event took place. It was that Pir Bakhsh alienated his entire one- half land in favour of one Sultan Ahmad and shifted his residence to Faisalabad. As he had ceased to be the owner of any land in the village, he also ceased to be the Lambardar. A reference to the judgment of this Court dated 22-2-1945 delivered in the suit brought by the plaintiffs sons, challenging that sale under custom (a copy of it is to be found on -the- file of the lower appellate Court)'shows that on the very day of the sale, viz. 17th May, 1935, Pir Bakhsh riled a complaint, alleging that "he had executed the deed under some misrepresentation which amounted to cheating on the part of the vendee. It was alleged by him that the deed was executed, when be was under the influence of drinkine'. This complaint was withdrawn the same day. A week later, on the 24th May, 1935, Pir Bakhsh instituted a complaint under sections 468 and 471 of the I.P.C. Against the alience. That matter resulted in compromise on the 25th July, 193.5 and the complaint was withdrawn. On the 22nd January, 1936, Pir Bakhsh brought a civil suit for the cancellation of the sale-deed. That suit was dismissed by the learned Senior Subordinate Judge on the 22nd June, 1937. It was after Pir Bakhsh had failed in these attempts to have the sale-deed 'cancelled, that his sons instituted the customary suit. Add to all this the significant fact that Jalal had lived till 10-1- 1950 (Exh P4) but during his lifetime, Pir Bakhsh had done nothing whatever to question the validity or effect of Mutation No.63 dated 14-12-1926. Undoubtedly Pir Bakhsh was major in 1935 and as he had sold his entire land to Sultan Ahmad, he must have known that according to the record-of- rights, he had been left with no land in the village. That he kept mum till July, 1911 when he instituted this suit was, therefore, strong evidence of the fact that he had accepted his father's right to deal with the land as owner and had always treated his brother-Rahim Bakhsh as the owner of the land in suit.
16. On the question of limitation also, the findings of the learned Courts below appear to be unexceptionable. As has been held by the learned Courts below, there can be no doubt that at least in 1935, Pir Bakhsh had come to D know that since 1926, his brother, Rahim Bakhsh, had become the owner of one-half of his father's land. As has been seen, he had challenged the sale in favour of Sultan Ahmad first by two complaints, and then by a civil suit and for I the purposes of those complaints and suit, he must have seen the record-of--rights. The record showed that since 1940, the name of Pir Bakhsh had not occurred in the record-of-rights or in the Khasragirdawris, so much so that in the Pedigree-table Exh.D9, he was described as a Ghair Malik. The admitted position being that the name of Rahim Bakhsh as owner came to be incorporated in the record-of- rights by reason of Mutation No.63, there is hardly any merit in the contention that this was a case of correction of wrong entries. And as Pir Bakhsh had sold his entire land in the village in 1935, he had ceased to be a co-owner with Rahim Bakhsh. Learned counsel for the plaintiff referred to Aswa r Muhammad and others v. Sharif Din and others 1983 SCM R 626 and Ghularn Muhammad Khan and others v. Samundar Khan and others AIR 1936 Lahore 37. But those were cases in which the plaintiffs were held to be heirs but their names as heirs had not appeared in the revenue record. I cannot, therefore, agree with the learned appellant's counsel that he could bring the suit when he felt aggrieved and that he felt aggrieved in the year 1966. Learned counsel was then driven to invoke to his aid the maxim that possession follows title and contended that as a big portion of the land in suit was Banjar or Banjar Qadeem, the plaintiff should be prosumed to have remained in possession. But the plaintiff had ceased to be the owner of the land in 1926 and this maxim too cannot, therefore, help him. The plaintiff had been living in Faisalabad since 1935; the learned Courts below found, and found concurrently that he had not been in possession or enjoyment of the property, or any part of it, since then. Learned counsel for the appellant did not dispute the position that Article 120 of the Schedule to the Limitation Act applied and I concur in the view taken by the learned Courts below that the suit was hopelessly barred by time.
17. For these reasons, the appeal is dismissed, but the parties are left to bear their own costs.
AA./P-23/L