(1.) This second appeal is directed against the judgment and decree of the first appellate Court dated 19th of October, 1972. The brief facts of the cases are as under :-
(2.) Plaintiff-respondent Ibrahim filed a suit in the Court of Sub-Judge, Karnal, for a declaration to the effect that he was the sole owner of the property measuring 48 Kanals 2 Marlas, as mentioned in the plaint, and in alternative for possession of half share of the property in suit. It is alleged in the plaint that the plaintiff is the son of Akbar alias Karam Chand and is the brother of defendant Smt. Sharifan alias Shanti; that Akbar and Bhiku sons of Maru, father and uncle of the plaintiff-respondent, were occupancy tenants of the suit-land and due to the abolition of the occupancy rights Akbar and Bhiku became the owners of the suit-land; that his father and uncle and their ancestors were residents of village Kambohpura, tehsil and District Karnal, where they were doing cultivation and other work of the agriculturists of the village; that they mainly depend on agriculture and had adopted Punjab Agricultural Customs of the Zamindars from the time of their ancestors and as such are governed by customs in the matter of succession; that Maru, the grandfather of the plaintiff and defendant died before the partition of the country and mutation No. 293 was sanctioned in favour of their father and uncle. The plaintiff and defendant never migrated to Pakistan as their lives became unsafe due to the communal disturbances and in order to save life they adopted Hindu names. Their father Akbar renamed himself as Karam Chand, uncle Bhiku as Balbir, plaintiff as Dharam Vir and the defendant as Shanti, but in fact they were never converted to Hindusim and are Suni Muslims and observe Namaz and other rituals of the Muslim faith and they were also married to Muslims according to Muslim rites. Their father Akbar died in the year 1957 and that the Mutation Officer, treating them as Hindus, sanctioned the mutation of his inheritance in favour of the plaintiff. The defendant and their mother Nanhi. After the death of their mother in 1966, the mutation was sanctioned in favour of the plaintiff and defendant in equal shares. After that their uncle also died and the mutation was again sanctioned in favour of the plaintiff and the defendant in equal shares. The defendant had started living in village Kambohpura about four years before the institution of the suit and the plaintiff gave her his house to live in; and that he had been in exclusive possession of the land in dispute. It is thus alleged in the plaint that the parties are Muslims and are governed by the Punjab Agricultural Customs in the matter of inheritance; that the defendant and their mother had no right to succeed their father Akbar; that the defendant had no right to succeed to the share of their mother and also their uncle; and that the cause of action accrued to the plaintiff from April 20, 1969, when the defendant threatened to take forcible possession of the suit-land and refused to admit his claim.
(3.) The defendant denied the claim of the plaintiff and raised a preliminary objection in the written statement that the suit was barred by time. She further averred in the written statement that the parties had actually converted to Hinduism and are no longer Sunni Muslims and do not observe Namaz and other rituals of Muslim faith and she was married in accordance with Hindu rites; and that the mutations were correctly sanctioned in her name according to Hindu Succession Act. It was also pleaded that the plaintiff had forcibly occupied her share of the land and in order to get back here share she had filed a suit in the Court of Assistant Collector, 2nd Grade, Karnal. A claim for special costs was also put in by her. The trial Court framed the following issues on the pleadings of the parties :-