The plaintiff appeals against judgment dated 21-9-1971 passed by Mr. Muhammad Azam, learned Additional District Judge, Sargodha through which the appeal filed by the respondents against judgment and decree 17-5-1971 passed by the trial Court by which the suit filed by the appellant for declaration as regards her ownership with possession of land in dispute had been decreed, was accepted, and the said suit dismissed.
2. The appellant is the daughter of Sada. She filed a suit for declaration that she was owner with possession of land to the extent of 7/32 share as daughter of Sada and mutation of gift No. 3500 sanctioned in favour of Said Muhammad, Sardara and Shahoo defendants Nos. 1 to 3 which was subsequently confirmed by the Commissioner was illegal, void, ultra vires and inoperative as against her rights. As a consequential relief a decree for perpetual injunction was also prayed for.
3. On the death of Sada Mutation No. 3492 was sanctioned in favour of the appellant as his daughter to the extent of 7/32 share on 30-4-1963. It is common ground between the parties that the correctness and legality of this mutation was not challenged by any person which is still intact uptil today. However, subsequently on 8-6-1963, another Mutation bearing No. 3500 was sanctioned by the Revenue Officer (Exh.P.6) through which it was shown that the present appellant alongwith Fatima daughter of Dosa who was brother of the appellant alongwith Naziran widow of Bati and Rasoolan had gifted the land to Said Muhammad, Sardara and Shahoo, defendants Nos. 1 to 3. Feeling aggrieved the appellant filed an appeal before the Collector against this mutation alleging that she never gifted her share to the said three persons. The Collector by order dated 26- 6-1965 accepted the said appeal and set aside the said mutation. On further appeal filed by the said alleged donees the Commissioner through order dated 22-10-1966 set aside the order of Collector dated 26-6-1965 and restored Mutation No. 3500.
4. Feeling aggrieved the appellant filed the present suit from which this second appeal has arisen.
It was contested by the said alleged donees. On the pleadings of the parties the trial. Court framed the following issues:-- (1)Whether the suit land has been correctly valued, if not, what is the proper valuation?
(2)Whether the suit is maintainable in its present form?
(3)Whether the suit is within time?
(4)Whether the plaintiff is estopped to bring the present suit?
(5)Whether the plaintiff lacks the locus standi to bring the present suit?
(6)Whether the alleged Hibbah is outcome of impersanction fraud, misrepresentation and collusion? (Onus objected).
(7)Whether the gift is incomplete due to non-delivery of possession? (Onus objected).
(8)If the above issues are found against the plaintiff, there--whether she is competent to revoke the gift?
(9)What was the custom by which the parties to this suit and the Sada deceased were governed in the matter of succession?
(10) Whether Mst. Rehman w/o Sada inherited the suit land as a limited owner under custom or as maintenance only?
(11) Whether the plaintiff is the owner in possession of 7/32 share of the suit land?
(12) Whether Mutation No. 832 dated 24-6-1923 is illegal, void and ultra vires?
(13) Whether the order of Commissioner dated 22-10-1966 is illegal, void, ultra vires and inoperative as against the plaintiff?
(14) Whether the defendants are entitled to special costs under section 35-A, C.P.C. if so, to what extent?
(15) Relief.
5. The evidence of the parties was recorded. The trial Court after careful and elaborate appraisal of evidence held that the suit had been correctly valued and the same was also maintainable in the form in which it had been filed, thus issues Nos. 1 and 2 were answered accordingly.
6. Under Issue No. 3 the finding of the trial Court is that the appellant/plaintiff was in possession of the suit land and since the previous entries in the Revenue Record were in her favour, therefore, she having felt aggrieved from the order of the Commissioner, could file the suit, therefore, it was within limitation room the date of the order of the Commissioner dated 22-10-1966.
7. As regards issue No. 4 the trial Court held that the appellant was not estopped from filing the suit.
It was a suit in which the appellant had challenged the gift allegedly made by her in favour of defendants Nos. 1 to 3 and there was no representation or act of the appellant on which the said defendants acted and changed their position, therefore, the principles of estoppel were not attracted. Issue No. 4 was decided against the defendants.
Under Issues Nos. 9 and 10 the trial Court held that Mst. Rehmon widow of Sada inherited 1/3 share in the land on the death of Sada as limited owner and the plea raised by the respondents that according to custom which the family was following a sonless widow in the presence of son from another widow of the deceased could only succeed to the land for maintenance purposes had not been established. It was held that Rehmon widow of Sada inherited the land under custom to the extent of 1/3 share as limited owner: These issues were decided against the defendants. As a consequence of these findings it was held under Issue No. 12 that mutation of inheritance of Sada had been properly sanctioned, therefore, this issue was also answered against the defendants.
8. Issues Nos. 6, 7, 8 and 13 have been decided by the trial Court together as they are interlinked. It was held that the appellant did not make any gift of the land inherited by her in favour of defendants Nos. 1 to 3 as alleged, which fact they admitted in the written statement. These issues were answered accordingly. Issues Nos. 5 and 11 as a result of findings on the above issues were also decided in favour of the appellant. Issue No. 14 was also decided against the defendants by the trial Court by holding that they failed to produce any evidence in support thereof. As a consequence of these findings the suit of the appellant was decreed through the judgment dated 17-5-1981.
9. In appeal filed by the defendants/alleged donees the lower Appellate Court did not reverse the findings as regards gift etc. recorded by the learned trial Court. The appeal was accepted merely on the ground that according to the custom which governed the family a sonless widow could get the property of deceased husband for the purpose of maintenance only but could not inherit the same as such Rehmon widow of deceased Sada whose daughter is the appellant having not inherited any share in the property as such the appellant could not inherit the same as there was no termination of limited interest of Rehmon as such the inheritance of Sada did not open to his heirs including the appellant as his daughter.
10. I am afraid the reasons given by the learned Additional District Judge are not sustainable both on facts and law. I have examined the evidence produced by the parties. There is no evidence to establish existence of special custom as alleged viz. a sonless widow could only get property for maintenance. The evidence produced by the appellant relied upon by the trial Court inspire confidence and fully establish that there was no such custom. On the death of Sada, Rehmon his widow as held by the trial Court inherited the property under custom to the extent of 1/3 share as limited owner. Mutation No. 3492 (Exh.P.l) was sanctioned on 30-4-1963 in favour of the present appellant as daughter of Sada through which she inherited 7/32 share in the land. This mutation remained unchallenged uptil today. The respondents or around and alleae that the annellant was not entitled to inherit any share in the property owned by her father. The mutation of gift bearing No. 3500 was rightly spot aside by the Collector as the factum of gift had not been established which was disowned by the appellant who was held to be in possession of the land. The mere fact that respondents/defendants clamed ownership rights in the land inherited by the appellant through gift from her was sufficient to hold that they had accepted her as owner having inherited the property from her father for if she could not t inherit the property under custom as alleged there was no question of making any gift of the same by her as its owner. The alleged donees were in fact estopped from alleging that under the custom the appellant could not inherit any share in the land owned by her deceased father. Respondent No. 3 did not opt to enter appearance in this appeal to contest it. He was proceeded against ex parte vide order dated 6-2-1994. Respondents Nos. 1 and 2 died during pendency of appeal whose legal representatives were brought on record through the same order. L.Rs. Nos. 1 and 2 of respondent No. 1 deceased did not enter appearance in spite of service, therefore, they were proceeded against ex parte vide order dated 7-3-1994.
Legal representatives Nos. 3 to 5 of respondent No. 1 also did not appear, therefore, they too were proceeded against ex parte through order dated 2-4-1994. Gul Muhammad and Muhammad Amir sons of Sardara, legal representatives of respondent No. 2 appeared on 2-4-1994 and stated that they did not want to contest the appeal and conceded that judgment of the trial Court which had been rightly passed may be restored as no gift of land in dispute was ever made by the appellant and that she could inherit the property of Sada deceased, after termination of limited interest of Rehmon, widow of Sada.
11. The impugned judgment passed by the lower Appellate Court is not sustainable for the foregoing reasons. This appeal is accepted, judgment dated 21-9-1971 passed by the lower Appellate Court is set aside and judgment and decree dated 17-5-1971 passed by the trial Court restored. There will be no order as to costs.