MT WALLAN Vs. FAZLA

JUDGEMENT

(1.) The question to be determined upon this appeal is whether the appellant or the respondents are entitled to succeed according to the Punjab Customary law to certain land of which one Sher Mohammad was possessed at the date of his death without issue in or about October 1929. The land, which is comprised in the Patti Daultani, in a village called Lilhani, had been acquired in the years 1879 and 1881 by one Yusaf and the appellant's claim to it can be conveniently illustrated as follows : Ahsan and Alla Baksh and any issue they may have had, appear to have pre- deceased Sher Mohammad. Now in the revised settlement made in 1890-91, being the first revised settlement made after Yusaf had acquired the property, the pedigree table of proprietors of the village contains the following : It would appear from this that Panah, the father of Yusaf, was the son of Neka and that Panah had a brother, Ahmed, whose descendants were proprietors in Patti Nasir Din. Who these descendants now are appears from the following pedigree : If therefore Panah, the father of Yusaf, was in truth the son of Neka, as indicated by the pedigree of 1890-91, the respondents were "collaterals"of Sher Mohammad, and were entitled to succeed to his ancestral property in preference to the appellant. The appellant however contends that the Panah who was the father of Yusuf was not the same person as the Panah who was the son of Neka and the brother of Ahmed; that this last-mentioned Panah died sonless: and that Panah, the father of Yusaf, was the son of one Haji. If she be right in this contention the respondents are not collaterals of Sher Mohammad and the appellant is entitled to the property in dispute. In view of the fact that under Section 44, Land Revenue Act, an entry made in a Record of Rights is presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor, the onus is thrown upon the appellant of showing that the pedigree table prepared at the revised settlement in 1890-91, the relevant extract from which has been set out above, is erroneous. For, admittedly, there is no later entry that is inconsistent with the facts recorded in that extract. The appellant contends however that she has discharged this onus in the following way. In the first place she produces what is alleged to be an extract from the pedigree table of the village Lilhani prepared at the regular settlement of 1856. The extract which appears to have been made in April 1931 is stated in the record in this case to be as follows : It would appear however from the answer to interrogations administered to the Special Quanungo or Revenue Officer that the word 'sonless' does not appear in the pedigree table under the "ghuri"or square in which the name Panah appears, but that there is a blue circle (whether in pencil or ink is not stated) round the name, and that according to the table of references given in the pedigree table this mark indicates a sonless person. In the next place the appellant produces a copy of a petition of plaint filed by Yusaf on 28 March 1870, as agent for his father Panah. In this plaint Yusaf describes his father as being the son of Haji, caste Sheikh, aged 105 years. It was in reliance upon this evidence that the appellant on 9 March 1931, filed her plaint in the present suit in the Court of the Subordinate Judge, Sargodha, for a declaration that she is the absolute owner of the land left by Sher Mohammad and that the respondents "have no concern whatsoever therewith."

(2.) The suit came on for hearing early in January 1932. The respondents at the trial relied very naturally on the pedigree table prepared on the revised settlement of 1890-1891. As to the pedigree table of 1856, it was contended by them that it had been tampered with and that the blue mark shown in the ghuri of Panah had been fraudulently inserted at a later date. They further contended that in the suit of 1870 Yusaf had admitted that Ahmed was his father's brother. In that suit which, as already stated, was brought by Yusaf on behalf of his father Panah, it was claimed that Panah was the owner of some land in the village of Lilhani which in consequence of Panah's absence at the time of settlement of 1856 had been shown in the settlement as being "shamilat"or village common land and the object of the suit was to have the land shown as Panah's property. To that suit there were 127 defendants, co-sharers in the village, including one Qaim, who appears to have been the Qaim, the son of Ahmed, referred to above. Of these defendants, 36, including Qaim, filed a statement admitting the justness of the plaintiff's claim. "The plaintiff,"they said, a collateral of ours, is a proprietor. He was absent at the time of the settlement. Consequently, the entire land owned by him was entered as shamilat of the entire village. In fact the land of the plaintiff is shown with that of his first cousin Qaim in the settlement papers.

(3.) What may be the precise meaning of this last sentence is not very clear. But the statement that Qaim was the first cousin of Panah is plain enough. Other defendants opposed the plaintiff's claim, but none disputed her relationship to Qaim. Nor did Yusaf in the written reply that he had been ordered to submit, as he said, 'for elucidation of the facts of the case.' On the contrary, pleading in the name of Panah, he referred to Qaim in these terms: "Qaim, son of Ahmed, who is my brother's son ..."The suit appears to have been unsuccessful, though their Lordships have not been informed for what reason, the judgments in the suit not having been put in evidence in the Courts below in the present case.