' This appeal is directed against the judgment and decree passed by the learned District Judge, Kotli, on June 28, 1995, whereby an appeal filed against the judgment and decree of the Additional Sub-Judge, Kotli, dismissing the suit, was accepted.
2. The facts forming the background of this appeal are that Mst. Azmat Bibi, plaintiff-respondent filed a suit in the Court of Additional Sub-Judge, Kotli, seeking declaration that the suit land was owned by her father Muhammad Shafi who died in 1954, as such, she was entitled to the share out of the estate left by her deceased father. Mutation No,107 attested in favour of the defendant- appellant and pro forma-respondents was illegal, inoperative and ineffective against her rights.
The revenue record subsequently prepared on its basis was also challenged as illegal and without jurisdiction. The suit was resisted by the defendants, on the grounds that Muhammad Shafi deceased, died before the enforcement of Shariat. Act, therefore, the plaintiff was not entitled to any share and the mutation was correctly attested. The suit of the plaintiff was also claimed to be beyond limitation. The Trial Court framed various issues on the basis of pleadings of the parties.
After receiving the evidence, from both the parties and hearing them, the learned Additional Sub- Judge, Kotli dismissed the suit of the plaintiff-respondent as she failed to prove her claim and the suit was also held to be time-barred. An appeal filed by the plaintiff-respondent found favour with the learned District Judge, who accepted the same and decreed her suit vide the impugned order.
3. Mr. Abdul Majeed Mallick, the learned counsel for the appellant raised the following points in support of the appeal:--
(i) That the impugned order is illegal and suffers from misreading and non-reading of evidence, as such not maintainable;
(ii) that the Trial Court which happened to record the evidence after careful consideration and appraisal of evidence, proceeded to dismiss the suit, as such the interference made by the leaned District Judge, keeping in view the evidence, is not called for;
(iii) that the evidence led by the plaintiff-respondent is contradictory and she failed to substantiate her claim, as such did not discharge the burden of proof placed on her for the relevant issues;
(iv) that the learned District Judge misread the evidence without keeping in mind that the plaintiff did not prove her case; and
(v) that the suit of the plaintiff was hopelessly time-barred which was rightly so declared by the Trial Court. The observation of the District Judge describing the same within time, runs counter to law.
4. On the other hand, Ch. Muhammad Nasim, the learned counsel for the respondent opposed the appeal on the following grounds:-
(i) That the evidence produced by the plaintiff in support of her claim sufficiently proved her case.
The learned District Judge, appraising the evidence in accordance with the principles of law, accepted the appeal and decreed the suit of the plaintiff-respondent which cannot be assailed before this Court, particularly when the finding is recorded on the basis of facts; and
(ii) that the plaintiff and defendant are real sister and brother, therefore, the plaint, on the basis of her claim as a co-sharer, is entitled to her share from the estate left by her deceased father. No adverse possession can be claimed against a co-sharer, as such the question of suit being, filed after limitation, does not arise.
5. I have heard the learned counsel for the parties and also gone through the record. It is admitted between the parties that the plaintiff and defendant are sister and brother. The parties are at variance on the date of death of Muhammad Shafi, their deceased father. The learned Trial Judge framed the following issues on the basis of their pleadings:--
(i) Whether the father of the plaintiff died in 1954, as such she is entitled to her share out of his estate? OPP
(ii) Whether Mutation No,107 is attested illegally which is inoperative and ineffective against her rights? OPP
(iii) In case of proof of Issues Nos.1 and 2 in affirmative, whether the record prepared on the basis of Mutation No,107 is illegal, against the facts and inoperative and ineffective against the rights of the plaintiff? OPP
(iv) Whether the suit is within time? OPP
(v) Whether the plaintiff has cause of action to file the suit? OPP
(vi) Relief.
6. The plaintiff-respondent in support of her claim produced Muhammad Aziz son of Kala, Bagh Ali son of Kala, Muhammad Iqbal son of Jhalla and Siraj Din son of Misri and plaintiff herself appeared as witness, in addition to documentary evidence, copy of mutation Exh. PA, Misal-e-Haqqiat for the year 1971-72, Exh.PB, Copy of Jamabandi for the year 1998-99 BK, Exh.PC which was also brought on record. The defendant-appellant in rebuttal, produced Chiragh Din son of Allah Dina, Muhammad Akbar son of Muhammad Ibrahim, Muhammad Lal son of Ladhoo and Rehmatullah, one of the defendants himself appeared as witness, alongwith the documentary evidence comprising copy of mutation, Exh.DA/1, copy of Misal-e-Haqqiat for the year 1971-72, Exh.DB, copy of Misal-e-Haqiat Exh.DC, and copy of Khasra Girdawari for the years 1967-74, Exhs.DD and DE.
7. A perusal of the oral evidence led by the plaintiff-respondent reveals that the witnesses though have stated the year of death of deceased Muhammad Shafi as 1954, yet they are unable to disclose the year of death of his contemporaries or some of his close relatives who died before or after his death. Reference may be made to the statement of Muhammad Aziz, witness who stated that Mahar Bakhsh who was 'Imam' of the Janaza prayer of Muhammad Shafi, died before 6-7 years at the time of his statement, but failed to mention the year of his death. The witness also failed to disclose the years of deaths of other co-villagers mentioned in his statement. The other witness, Bagh Ali who simply disclosed the year of death of Muhammad Shafi deceased, was unable to disclose the year of death of other villagers, including the date of his marriage. The other witness, Siraj Din son of Misri did not disclose the exact year of death of Muhammad Shafi but stated in his statement that Muhammad Shafi died after 6-7 years of 1952 and failed to disclose as to how many years before the war of 1965, the death of Muhammad Shafi took place. Mst. Azmat Bibi, plaintiff also did not disclose the year of death of her father. However, she stated that she was born a year after the death of her father. She also produced her Identity Card showing her date of birth as July 6, 1953. None of the documents placed on record by the plaintiff, is helpful in determining the year of death of Muhammad Shafi deceased. The witnesses of the defendant- appellant, on the other hand, stated that Muhammad Shafi died 1-1/2 years after the War of 1947.
Defendant Rehmatullah placed on record the documents referred to above.
8. In view of the fact that the Trial Court proceeded to dismiss the suit and the District Judge, on appraisal of evidence decreed the same, I have gone through the entire evidence led by the parties including the documentary evidence. The plaintiff, in discharge of burden of proof placed on her shoulders, produced oral- evidence but a critical examination of their statements does not substantiate her claim, rather it negates the same, particularly her own statement in which she stated that her father died a year before her birth and produced her Identity Card in support of her claim showing her date of birth as July 6, .1953 on which basis, the year of death of her father comes 1952. The survey of the entire statements of the witnesses produced by the plaintiff, does not give an impact of conclusiveness. Their statements are contradictory, rather lacking confidence to reach a definite conclusion on their basis in the circumstances, when no document in support of above oral statements has been brought on record. On the other side, a mutation has been attested which has nearly been challenged after 28 years after its attestation, supported by oral evidence in support of the claim of the defendant-appellant. It was primarily the duty of the plaintiff to bring such evidence on record which could prove her claim without any ambiguity. The heavy burden placed on the shoulder of plaintiff as such was not discharged. Her own statement is not supportive to her claim. Therefore, the plaintiff has, failed to substantiate it. The learned District Judge did not apply his mind to this aspect of the case. On the basis of evidence, therefore, it can safely be resolved that Muhammad Shafi, father of the parties, died in 1948/1949, before the enforcement of Shariat Law in December, 1952. The plaintiff has failed to bring any evidence on record for his death having taken place in 1954.
9. The next question arises as to what would be the law applicable to the case in hand. The last owner Muhammad Shafi was having a right of occupancy governed by the Punjab Tenancy Act, enforced on March 22, 1948 in place of Tenancy Act of 1980-BK (Act No,11 of 1980) through Adaptation of Law Resolutions,. 1948, dated 22-3-1948. According to section 67 of the Tenancy Act, 1980 BK. Previously holding the field and section 59 of the Punjab Tenancy Act, presently in force, in Azad Jammu and Kashmir, when a tenant having a right of occupancy in, any land dies, the right shall devolve--
(a) on his male lineal descendants, if any, in the male line of descent;
(b) failing such descendants, on his widow, if any until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom;
(c) failing such descendants and widow or his widowed mother, if any, until she dies or re-marries or abandons the land or is under the provisions of this Act, ejected therefrom;
(d) failing such descndants and widow or widowed mother, or, if the deceased tenant left a widow, or widowed mother then when her interest terminates under (b) above; on his male collateral relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives. In this case, it is also necessary to prove that the common ancestor occupied the land;
(e) if the deceased tenant has left no such persons as are mentioned' above on whom his right of occupancy may devolve, the right shall be extinguished."
The above rule of succession is absolute and cannot be challenged on the ground of custom or personal law of the parties. It may further be clarified that the succession to an occupancy tenancy is not governed by custom applicable to the parties or by their personal law except as provided in section 59 of the Punjab Tenancy Act, amended later on in December 1952 when the Shariat Personal Law was held applicable. Therefore, section 59 of the Punjab Tenancy Act, as enforced in Azad Jammu and Kashmir, shall be applicable. The relevant section is reproduced:-- "S.59.--(1) When a tenant having right of occupancy in any land dies, the right shall devolve--
(a) on his male lineal descendants, if any, in the male line of descent, and
(b) failing such descendants, on his widow, if any, until she of or re-marries or abandons the land or is under the provisions of this Act, ejected therefrom, and
(c) failing such descendants and widow, on his widowed mother, if any, until she dies or re-marries or abandons the land or is under the provisions of this Act ejected therefrom, and
(d) failing such descendants and widow or widowed mother, or, if the deceased tenant left a widow or widowed mother, then when her interest terminates under clause (b) of this subsection, on his male collateral relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives: ' Provided, with respect to clause (d) of this subsection, that the common ancestor occupied the land.
(Explanation.--For the purpose of clause (d) land obtained in exchange by the deceased tenant or any of his predecessors-in-interest in pursuance of the provisions of subsection (1) of section 58-A shall be deemed to have been occupied by the common ancestor if the land given for it in exchange was occupied by him).
(2) As among descendants and collateral relatives claiming under subsection (1), the right shall, subject to the provisions of that subsection devolve as it were land left by the deceased in the village in which the land subject to the right is situate.
(3) When the widow of a deceased tenant succeeds to 'a right of occupancy, she shall not transfer the right by sale, gift or mortgage or by sublease for a term exceeding one year.
(4) If the deceased tenant has left no such persons as are mentioned in subsection (1) on whom his right of occupancy may devolve under that subsection, the right shall be extinguished Keeping in view the law envisaged in the above-referred provisions and the date of death coming before the enforcement of Shariat Personal Law in December 1952, the plaintiff, though real sister of the defendant-appellant, is not entitled to inherit the estate left by her father having the right of occupancy in the land. The argument built on the basis of "PLD 1988 SC (AJ&K) 1" (Mst. Hussain Bi and another v. Mst. Nasib Begum and 2 others) and "1990 CLC 164" (Beroo v. Mst. Said Bibi), that under the rule of inheritance in the State of Jammu and Kashmir before the independence, the, initial presumption was in favour of personal law of the parties and not in favour of the custom and the party raising plea of custom had to allege it in specific terms in the pleadings and prove it, and unless specifically pleaded, the inheritance was to devolve on the heirs in the manner prescribed in the Personal Law, has no relevance to the case in hand as those resolutions were recorded in the matters where the parties were owners but here the last owner is a tenant having the right of occupancy and is strictly governed by the provisions of Punjab Tenancy Act, as adapted in Azad Jammu and Kashmir.
10. While deciding the question of limitation, the learned. District Judge held that the suit was filed within time on the ground that the plaintiff and defendants are co-sharers, as such the law with 'regard to adverse possession shall not be applicable. Therefore, the suit of a co-sharer cannot be termed as beyond limitation as held by the' Trial Court. The impugned mutation was attested on.
May 8, 1961, whereas the suit was filed on June 15, 1989, i,e, after more than 28 years of the attestation of the mutation. The. Revenue Record prepared later on was also challenged in the suit.
Keeping in view the aforesaid discussion in the earlier part of the judgment, holding the plaintiff- respondent not entitled to inherit the estate of her father, 'the suit, in the circumstances., can safely be held to be filed beyond limitation as under the circumstances when the entries in the Revenue Record are challenged, the suit has to be filed within a period of six years under Article 120 of the Limitation Act. Reliance may also be placed on 1992 CLC 382 (Tanzeem Bazyabi-e-Haqooq Malikan-e-Orush v. Deputy Commissioner/Collector, Abbottabad and others), wherein it was held:- - "(b) Punjab Land Revenue Act (XVII of 1887). xxxxxxxxxxxx--person feeling aggrieved by an entry in any record of rights could seek declaration of title in a Civil Court within six years..."
' The reliance placed on 1990 CLC 164 by the learned counsel for the respondent and so relied by the learned District Judge has no application with its distinct facts, to the case in hand.
11. In view of the above discussion, the appeal succeeds and the judgment and decree of the District Judge is set aside and that of the Trial Court is restored, with no order as to costs.