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Civil Appeal No.6 of 1985, decided on 11th December, 1988.

Inheritance Initial presumption where parties were Muslims Custom as a rule of inheritance Mode of proof Muslims in Azad Jammu and Kashmir were governed vis a vis inheritance by personal law Rule was, however, subject to exception of Custom Where a particular tribe or family was governed by Custom vis a vis inheritance of estate, it could prove Custom to the exclusion of personal law Where exception of Custom was alleged, same had to be proved by very cogent and convincing evidence Initial presumption would always be in favour of personal law. [Presumption].

Proof of Inheritance No instance of Custom prevailing in family of parties was cited Custom as alleged in case was not proved by the party Plaintiff being daughter of deceased was, therefore, rightly declared entitled to inherit half of the estate of such deceased including built up property.

Inheritance Mutation, attestation of Inheritance by illiterate and backward womenfolk Judicial notice was taken of the fact that illiterate and backward womenfolk of rural areas were frequently deprived of inheritance by their relatives in connivance with Revenue Officers.

Arts.142 & 144 Suit for possession of immovable property Limitation for Adverse possession Starting point for limitation Limitation for suit for possession of immovable property, in case where plaintiff had been dispossessed of immovable property would be twelve years which would run from the date of dispossession or discontinuance of possession Limitation for suit for possession of such property would be twelve years, period whereof would run from the date when possession of opposite party became adverse to plaintiff Plaintiff"s establishing position that he was deprived of joint possession two years before the institution of suit, as proved by evidence, would not render objection to limitation tenable.

S.44 Limitation Act (IX of 1908), Art. 142 Suit for joint possession Entitlement to decree Plaintiff claiming possession of property of her share out of the estate of her deceased father and claimed to be in joint possession of such property would be entitled to decree of joint possession.

Kh. Muhammad Saeed for Appellants. T . H . Tariq for Respondents.

The appeal is addressed against the Order of the High Court passed on May 13, 1984, whereby the findings of the subordinate Courts were reversed and plaintiff respondent"s suit for possession was decreed.

2. Mst. Balour Jan is daughter of Muhammad Bakhsh who was co owner with Pir Bakhsh and others, in the suit land. He was survived only by Mst. Balour Jan his daughter. Mst. Balour Jan brought a suit for possession by seeking cancellation of Mutation No.71 dated February 28, 1958, relating to land situate in village Bani Passari, and other mutation attested on February 21, 1963, relating to land situate in village Jaglari. It was averred in her pleadings that Muhammad Bakhsh her father, the last owner of the estate in dispute, died in 1949. The plaintiff being the sole daughter of Muhammad Bakhsh, inherited one half of the property of the deceased. She enjoyed joint possession with defendants appellants. The defendants appellants secretly secured attestation of aforesaid mutations in their favour and ultimately two years before the institution of the suit dispossessed her from the suit land. The suit was instituted on April 9, 1970. Pir Bakhsh and other defendants appellants repudiated the claim of Mst. Balour Jan. It was averred that Muhammad Bakhsh died in 1945. before the enforcement of Shariat Laws, when the parties were governed by Custom. By virtue of Custom Mst. Balour Jan who was married in the lifetime of her father, was excluded from inheriting the suit property. They also pleaded limitation.

3. The learned Sub Judge partly decreed the suit to the extent of land situate in village Jaglari by cancelling the mutation in dispute and. dismissed the claim of plaintiff to the extent of land situate in village Bani Passari. The suit was partly dismissed on the ground of limitation. The controversial facts, relating to the relationship of plaintiff with Muhammad Bakhsh her father and the date of death of Muhammad Bakhsh as alleged by plaintiff, were accepted to have been proved. The parties being aggrieved of the Order of the trial Court, preferred cross appeals to the District Judge, who passed on both appeals to the Additional District Judge Bagh. The Additional District Judge disagreed with the finding of the trial Court and held that Muhammad Bakhsh died in 1945 when Custom prevailed in the family. Mst. Balour Jan having been already married during the life time of her father, under custom, was not eligible to inherit the suit land. On appeal against the aforesaid order the learned Single Judge in the High Court, reversed the findings of the subordinate Courts, accepted the claim of plaintiff and decreed the suit for entire suit property. The learned Judge in the High Court expressed that being the sole daughter of Muhammad Bakhsh, the last owner of the land, Mst. Balour Jan was entitled to inherit one half of land. The objection of limitation advanced by defendant appellants was turned down.

4. Kh. Muhammad Saeed, the learned counsel for, the appellants, argued that the suit of plaintiff was patently beyond time as the same was instituted after expiry of statutory period prescribed for possession. It was emphasised that the estate devolved upon the appellant under Custom, to the exclusion of the respondent. There was enough evidence to support the claim of defendants appellants. Mr. T.H. Tariq, the learned counsel for the respondents, opposed the contention of the learned counsel for the appellants and supported the impugned order of the High Court.

5. The proposition addressed at the Bar pertains to inheritance. It is undenied that before independence the parties were governed vis a vis inheritance by personal law. The initial presumption was, therefore, in favour of personal law. It is admitted that under personal law Mst. Balour Jan acquired title by inheritance in half of the estate left by her deceased father. But rule of inheritance under personal law was subject to exception of custom. It was permissible that if a particular tribe or family was governed by Custom vis a vis inheritance of the estate, it could prove Custom to the exclusion of personal law. The consensus is that when the exception of custom is alleged, it must be proved by very cogent and convincing evidence. This is so as the Custom is preferred as an exception to the personal law.

6. We are not apprised of any misreading, non reading or misconstruing of evidence. No instance of Custom prevailing in the family of the parties, has been cited. Suffice it to hold that the B custom alleged in the instant case was not proved by the appellants. Therefore, Mst. Balour Jan plaintiff was rightly declared entitled to inherit half of the estate including built up property left by her father. The proposed evidence in support of Custom consists of documentary and oral testimony. In oral testimony as said earlier no instance of Custom controlling the inheritance of estate of deceased ancestor, prevailing in the family was cited. The documentary testimony consists of record of rights and mutations in dispute. The record of rights admittedly contains no entry in support of the Custom. The mutations in dispute were attested in absence of the plaintiff. Mutation No.71 relating to land situate in village Bani Passari reflects that Muhammad Bakhsh died as unmarried. A perusal of mutation shows that it was not attested in favour of defendants on the basis of Customs, as alleged in their pleadings. The other mutation dated February 21, 1963, relating to land situate in village Jaglari is shown to have been attested on the basis of earlier Mutation No.71. This mutation is also not shown to have been attested in favour of defendants on the basis of Custom. It is safe to conclude that attestation of mutations was manoeuvred by defendants to the detriment of plaintiff who happened to be a woman. Judicial notice is taken of the fact that illeterate and backward women folk of rural areas are frequently deprived of inheritance by their relatives by their connivance with Revenue Officers. Ordinarily connivance and conspiracies resulting in deprivation of the interest of women in rural areas, are unfolded at very late stage as in the instant case. In such a situation an action is enforced on gaining knowledge of the state of affairs. Be that as it may, the facts as alleged by the appellants do not prove Custom.

7. On the point of limitation, our attention was invited to the time of death of Muhammad Bakhsh and passing of possession of the suit land to defendants appellants. It was emphasised that irrespective of the time of death, whether in the year 1945 or 1949, the suit for possession was beyond time as it was instituted after more than 12 years from the time of passing of the possession to defendants.

8. The limitation for suit for possession of immovable property in case where plaintiff is dispossessed of immovable. property, would be 12 years, and it shall run from the date of dispossession. or discontinuance, as contemplated under Article 142. In other cases the limitation for the suit for possession of immovable property would be 12 years and the period of limitation shall run from the date when the possession of opposite party becomes adverse to the plaintiff, as provided under Article 144. In the present case, in para 4 of her pleadings Mst. Balour Jan alleged that she enjoyed possession of the suit land jointly with defendants, after the death of her father, but she was dispossessed two years before the institution of her suit. This averment was not expressly repudiated by defendant appellants. The written statement indicates that the copy of plaint supplied to defendants, in that paragraph No.4 was not entered. Be that as it may, the aforesaid part of the pleadings was supported by her evidence. Her testimony on this score was corroborated by Mir Zaman and Muhammad Afsar. Mir Zaman deposed in his examination in chief that plaintiff remained in possession of the land after the death of her father and the dispute between the parties arose 2 or 3 years earlier. Muhammad Afsar P.W. stated that after the death of Muhammad Bakhsh, Balour Jan entered into possession of the land and the house and the dispute cropped up two or three years earlier. These witnesses were not cross examined by defendants on these points.

The evidence on the point of joint possession of plaintiff, therefore, went unchallenged. In presence of aforesaid factual aspect of the case, the provisions of Article 142 of Limitation Act are aptly attracted. As noticed earlier under. this Article the limitation for bringing a suit for possession of immovable property is 12 years and the limitation starts running from the date or dispossession of discontinuance of possession. On establishment of the position that plaintiff was deprived of joint possession 2 years before the institution of the suit, as alleged in the pleadings and proved by evidence, the objection limitation, is not found sustainable.

9. The learned Single Judge in the High Court held that the share of Muhammad Afsar Khan husband of Mst. Afsar Jan shall not be affected as the appeal has abated to that extent. The finding is untenable as it is not found that Afsar Jan acquitted any interest in" the property. Unless it is established that"the deceased acquired any title in the land, abatement does not affect the interest of plaintiff. The plaintiff claimed possession of the property of her share out Of IF the estate of her , deceased father, situate in villages Bani Passaril and Jaglari. It was claimed that she was in joint possession of the suit property. In the circumstances she is entitled to a decree fort joint possession. The order of the learned Single Judge in the High Court is modified accordingly.

There is no force in the appeal, it is, therefore, dismissed to the extent prescribed above with costs throughout.

A. A. / 242/S/S (A J & K) Order accordingly.

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