This judgment shall decide C.R. No.2296 of 1985 and C.R. No.2297 of 1985 as they proceeded against a common judgment.
2. Mst. Kashmiran Jan widow of one Lakhmir was allotted colony land in lieu of land acquired from her for construction of Tarbela Dam. She died on 29-10-1976. The Mutation of Inheritance No.787 was attested on 27-11-1978 in favour of the petitioner. The respondent filed. a suit claiming to be a collateral of the said Mst. Kashmiran Jan who was stated to be the daughter of Ismail Khan. In the plaint filed on 3-6-1979 it is stated that the land was allotted to Kashmiran Jan and since he is the collateral of the said lady and as such is entitled to inherit the same exclusively as occupancy tenant. The petitioner in his written statement claimed that the land was allotted in lieu of land which was being held by Mst. Kashmiran Jan as widow of Lakhmir and as such the petitioner being collateral of Lakhmir, the mutation has been correctly attested. It was also pleaded in the written statement that whereas the respondent is not related to Mst. Kashmiran Jan, the petitioners are also collateral of Mst. Kashmiran Jan. Issues were framed and evidence of the parties was recorded. The learned trial Court recorded a judgment which moves in circles and decided nothing. However, the suit was dismissed on 8-10-1984. As I stated earlier the judgment is meaningless. None of the parties felt satisfied. Both the parties filed first appeals against the said judgment and decree. Both the appeals were heard by a learned Additional District Judge, Toba Tek Singh, who proceeded to allow the appeal filed by the respondent while he dismissed the appeal filed by the petitioners on 18-11-1985.
3. Learned counsel for the petitioner contends that since the land was allotted as a result of acquisition of land being held as limited estate by Mst. Kashmiran Jan it shall be deemed that the allotted land i.e. The suit land also not been able to prove his relationship with the said lady and since the petitioners have proved themselves to be the collateral of Mst. Kashmiran Jan as well, they are entitled to inherit the said land. Learned counsel for the respondent on the other hand supports the impugned judgment and decree of the learned Additional District Judge.
4. I have been taken through the copies of the record appended with the C.Rs. By the learned counsel for the parties. I find that in the plaint filed by the respondent it has been specifically stated that Mst. Kashmiran Jan is the daughter of Ismail son of Inayat Khan while Sarwar Khan respondent is son of Umar Khan son of Jamal Khan and that Umar Khan and Inayat Khan are sons of Khushal Khan. .
5. The detail contained in the said para. Has, of course, been denied by the petitioners in their written statement. They did not plead as to whose daughter Kashmiran Jan is if not daughter of Ismail Khan. It has, however, been pleaded that the petitioners are collateral of Mst. Kashmiran Jan as well as her husband. Exh.P.7 is the copy of birth entry. The learned Additional District Judge has read the contents of this document to show the birth of a daughter namely, Kashmiran Jan to Ismail Khan. I have examined the document arid I do not find any reason to differ from the reading of the same by the learned Additional District Judge. Now it is the plea of the respondent that Kashmiran Jan is daughter of Ismail Khan as stated by me above. P.W.1. Faiz A.I aged 85 years coming from village Phulhar, Tehsil Haripur has stated that Mst. Kashmiran Jan belongs to his village and was her neighbour and her father was Ismail Khan son of Inayat Khan and Inayat Khan was son of Khushal Khan. He further stated that Sarwar Khan was son of Umar Khan son of Jamal Khan son of Khushal Khan; that she was married to Lakhmir alias Gulmir Khan that Kashmiran Jan owns land in Gojra. This witness has been cross-examined but even it has not been suggested to him that Mst. Kashmiran Jan was not the daughter of Ismail Khan. Sarwar Khan has appeared as P.W.1 and has narrated relationship with Mst. Kashmiran Jan. Exh.P.4 is the predegree table pertaining to Gojra Tehsil Haripur and goes to corroborate the relationship narrated by P. W .1 and P.
W.2. To my mind. Exh.P.4 and Exh.P.7 read in the light of the statements of P,W.1 and 2 and the specific plea contained in the plaint do go to show that Mst. Kashmiran Jan was the collateral of respondent.
6. The petitioner on the other hand had produced predegree-table Exh.D.3. In this document, a daughter Mst. Kashmiran Jan of Mowaz Khan is mentioned. This entry is highly doubtful. It is an admitted fact that Mst. Kashmiran Jan was a married woman. It is also not brought on record that she had been holding a customary estate pertaining to the land of her father and certainly she should not have been a married daughter. There is, thus, no question of her name being entered under Mowaz Khan in the said predegree--table in the year 1904-1905. 1 may state here that in accordance with the instructions of the Financial Commissioner contained in the Land Records Manual as also in Land Administration Manual, Shajra when prepared in respect of owners in the estate, are so prepared with reference to the holding of the owners and Khata numbers are also entered there. In this predegree Khata numbers are entered. However, no attempt has been made to produce the record of holding of Mowaz Khan to phow as to whether his holding had devolved upon Mst. Kashmiran as his daughter' under some custom. In the absence of said evidence or any other foundation the learned Additional District Judge has rightly disbelieved this document.
7. Coming to the question of nature of estate, the learned counsel for the, petitioners has not been able to explain away the impact of decree Exh'P.5 passed in favour of Mst. Kashmiran Jan whereby she was declared to be the exclusive owner of the land in the said suit. It is an admitted fact on record that it is the very same land which was acquired and in lieu thereof the suit land was allotted. The learned Additional District Judge, therefore, has not proceeded against the record while holding that the land, in fact, was allotted against the land which vested in Mst. Kashmiran as an owner by virtue of the said decree.
8. Now looking at the matter in the light of provisions of Colonization of Government Land (Punjab) .
Act, 1912, the grant was made under section 10(4) of the said Act and was subject to the terms and conditions stated under the said law. I do not find myself in agreement with the learned counsel for the petitioners when he seeks to stretch the proposition laid in the case of Additional Settlement Commissioner (Land), Sargodha v. Muhammad Ismail and others (PLD 1971 SC 791) to grant made to a female under the said Act of 1912. The land held by Mst. Kashmiran Jan would be treated as her estate as an owner and would devolve upon the respondent who is her collateral. No ground has been made out for interference with the impugned judgment and decree of the learned Additional District Judge within the meaning of section 115, C.P.C. Both the civil revisions are, therefore, dismissed, leaving the parties to bear their own costs.