GHULAM MUHAMMAD KHAN Vs. NUR KHAN

JUDGEMENT

(1.) The annexed pedigreetable will assist in the elucidation of this case. Azmat was a resident and a proprietor in the village of Chakrala, and his sons founded the village of Thamewali. Amanat as the elder son was vested with, or assumed the pag and was regarded as Sardar or the head of the family in so far as Thamewali (at least) was concerned. He wm succeeded in the Sardarship by his brother Kamal owing to the fact that he died without issue. Kamal had five sons and his eldest son Suleman succeeded him as Sardar. Suleman died, or renounced this world (see page 165, paper-book A, Appeal No. 58/85 of 1914) without leaving any male issue surviving and was succeeded by Allah Yar. This Allah Yar had three wives and sons by all of them. He was in due course succeeded in the sardari by Barkhurdar, his eldest son. Barkhurdar was murdered in Lahore, and of his sons Yaian alone survived him. He was a mere child at the time of his father s death and his uncle Budhe Khan was vested with, or usurped the pag. In any event he was acknowledged as the Sardar and, as such, the holder of the lands at Thamewali, by the rest of this family, in Sambat 1908, as is evidenced by a deed of relinquishment, dated the 28th Maghar 1908 (11th December 1851)---pages 95-96, paper- book A. It appears that his half brother Zulfikar was associated with him in the management of the family estates, for in 1864 both the brothers were lambardars in Thamewali. Zulfikar was not satisfied with his position, and made repeated claims in the Revenue Courts to half the property left by Allah Yar but, though directed to do so, brought no regular suit to establish the claim he advanced. In 1864, however, he induced his nephew Yaran, then about 20 years of age, to institute a suit against both Budha Khan and himself in which Yaran claimed one-fifth share in the Thamewali lands.

(2.) In this suit Budha Khan pleaded that since the foundation of the village Thamewali it had been the custom in the family that the most capable of its members was appointed Sardar and invested with the pag and that the Sardar so appointed became the owner of all the lands, his other brothers being only entitled to suitable maintenance. He set up his due appointment as Sardar as evidenced by the deed already referred to. Zulfikar too denied Yaran s claim to one fifth, but he also denied the existence of the custom set up and pleaded that his father Allah Yar had, in his lifetime, divided the lands in suit into two portions giving him one-half as the son of one wife and the other half to his sons by his second wife.

(3.) The case was enquired into thoroughly by Mr. L. Cowan, Assistant Commissioner, who on the 12th April 1864 held that the custom alleged in regard to the Thamewali lands had been proved, and that, according to it the pag should have gone to Yaran. He, however, maintained Budhe Khan in the Sardarship. for the duration of his life, and directed that Yaran should succeed to the pag on Budhe Khan s death. On the 13th May 1864, he passed a further order defining Budhe Khan s powers of alienation in regard to the Thamewali lands. On the 7th January 1865, owing to Budhe Khan s Conduct, Mr. Cowan set aside his order maintaining him in the Sardarship, and appointed Yaran as the pagwala, Budhe Khan appealed and Major Pollock, on the 20th March 1865, (page 105, paper-book A) remanded the case to the Deputy Commissioner for further enquiry. On the 14th April 1865, the Deputy Commissioner, Mr. H. B. Armston, confirmed the orders of Mr. Cowan, dated the 12th April 1864 and 13th May 1864. Apparently the Commissioner, on appeal, set aside the order of Mr. Cowan, dated the 13th May 1864, but maintained that of the 12th April 1864. This litigation Came to an end with an order passed by Colonel Lake, Financial Commissioner, dated the 1st January 1866, by which Zulfikar was given one-fifth share of the Thamewali lands. The alleged custom was not further adjudicated upon, and Zulfikar was given this land under special circumstances, he having been in actual possession of the same and having assisted Budhe Khan in the management of the property.