IRSHAD AHMAD KHAN Versus IQBAL MUHAMMAD
ABAID ULLAH KHAN, J.-- The facts of the case as stated at the bar and as gathered from the pleadings and material on the record having bearing on the controversy between the parties may be stated in a simplified manner. The late Mst. Fazlan, Widow of Nathey Khan, was transferred the land in dispute lying in three estates, Cshak No. 137 G.B., Chak No. 530 G.B., and Chap No. 141 G.B., tehsil Samundri, district Faisalabad, in lieu of the land she left in village Kakoon, tehsil and district Hoshiarpur in India. She transferred land of Chak No. 137 G.B., to her daughter, Mst. Waziran, by sale and gift in 1961. Mst. Waziran died on the 21st March, 1968. Mst. Fazlan expired on the 17th May, 1971. The respondents are the, descendants and heirs of Imam-ud-Din Khan, brother of Nathey Khan (husband of Mst. Fazlan and father of Mst. Waziran) who died long before Independence. The appellants got their share out of the land in dispute as heirs of Mst. FazIan and Mst. Waziran. Small portion of the share went to the respondents.
2. Mst. Fazlan claimed herself to be full owner of the land in dispute and this is the stand of the appellants. However, the respondents asserted that Mst. Fazlan was a limited owner because the land in India, in lieu of which she had been transferred the land in question, was held by her in her capacity as limited owner. Nevertheless, the revenue authorities treated Mst. Fazlan as full owner and accordingly mutated the land left by her as also by Mst. Waziran after their death.
3. After the enforcement of the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 (Punjab Act XXV of 1975), the respondents instituted suit on the 8th December, 1975, for getting their claim of ownership to 34/48th share of the land in dispute recognised, the remaining 14/48th share they left for the appellants. They disputed the validity of the decisions of the revenue authorities made as well as of the alienations effected by Mst. Fazlan in favour of Mst. Waziran on the assumption that Mst. Fazlan was the full owner of the land in suit. The appellants pleaded full ownership of Mst. Fazlan and contested the suit.
4. The learned Civil Judge, Samundri, seized with the trial of the suit, formed the view that Mst. Fazlan succeeded to the land left by her husband, Nathey Khan, in village Kakoon as limited owner under custom and consequently she was, in view of the law laid down by the Supreme Court of Pakistan in Additional Settlement Commissioner (Land), Sargodha versus Muhammad Shafi P L D 1971 S.C. 791, to be limited owner of the land in suit which had been transferred to her in lieu of the land which she had held in India. Proceeding on this basis he found that the respondents were entitled to 34/48th share of the land and consequently decreed their suit by his judgment of the 3rd March, 1981. Feeling aggrieved the appellants have approached this Court in appeal.
5. The learned counsel for the parties are at one on the point that the only issue determining the fate of the appeal is whether Mst. Fazlan was the full or limited owner of the land she held in village Kakoon in India. According to them if she is found to be a limited owner the judgment of the learned trial Court is to be maintained and in case she is taken to be full owner this appeal has to be accepted. Evidence was led by the appellants to the effect that some land in village Kakoon Mst. Fazlan inherited from her father and the other land over there she received as gift from her husband, Nathey Khan. There is no documentary indication of her inheriting land of her father. As a matter of fact the learned counsel for the appellants did not pay much attention to this aspect. It was brought in evidence that Nathey Khan was a Rajput whereas Mst. Fazlan was a Pathani and as he could not get the hand of another woman he married Mst. Fazlan and gave her land in lieu of her dower debt and as such she was its full owner. No person who could have first hand knowledge of transfer of land by Nathey Khan in favour of Mst. Fazlan in lieu of her dower was produced by the appellants. The depositions of their witnesses on this point constitute no more than hearsay evidence. No attempt was made by the appellants to produce any documentary material proving such an alienation. The learned counsel for the respondents has drawn our attention to the decision of this Court in Second Appeal No. 262 of 1911, preferred by Mst. Fazlan against her husband's brother, Imam-ud-Din (predecessor-in-interest of the respondents), which decision is reported as Mst. Fazlan v. Imam-ud-Din A I R 1915 Lahore 210. Its perusal indicates that Mst. Fazlan held the land left by her husband Nathey Khan as limited owner and not as full-owner.
6. The testimony of the respondents' witness? Wazir Ali, DW 4, who had acted as mukhtar of Mst. Fazlan for quite some time, is of some assistance to ascertain the nature of Mst. Fazlan's ownership of the land in village Kakoon. He bore out that Mst. Fazlan had succeeded to the estate of Nathey Khan as his widow. He said that village Kakoon was inhabited by Muslim Rajputs land owners and no person, who was not a Rajput, owned land in the village. According to him succession to the estate left by Rajputs was regulated by custom and if there was no son the estate would go to widow and that she would continue to hold it till life if she did not marry and if she was to contract marriage or die the estate would revert to the heirs of her husband. He confirmed that Mst. Fazlan had been given land in this fashion. In the circumstances the conclusion reached by the learned trial Court that Mst. Fazlan got the land in village Kakoon after her husband's death and that she succeeded to it as a limited owner cannot be taken exception of. In such a situation the impugned judgment and decree cannot be disturbed. The appeal is accordingly dismissed leaving the parties to bear their own costs.
A.A./I-84/L ????
Appeal dismissed.