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.
4. On the 10th August 1868, Muhammad Khan, son of Allah Yar, sought to obtain partition of the Thamewali lands (see pages 110-111, paper-book A) claiming one-fifth share for himself, and a similar share for his nephew Faiz Bakhsh. This application was rejected on the 5th October 1868 (page 112, paper-book A) and he was referred to a regular suit.
5. Budhe Khan died soon after 1868 and Yaran, who should have succeeded to the Sardarship and to the lands thereto pertaining, apparently allowed mutation to take place in the name of Musammat Bakht Bhari, widow of Budhe Khan, who had left no male issue but whose daughter Yaran had married. Their actual possession appears to have been joint, and Yaran seems to have managed the property, for Faiz Bakhsh, son of Dad Khan, sued both Yaran and Musammat Bakht Bhari in 1874 claiming a share of the land left by Budhe Khan. This claim was rejected and the custom re the Sardari maintained as established and as admitted by the order of Colonel W. G. Davies, dated 10th October 1874, see pages 112-113, paper-book A.
6. Zulfikar also sued Musammat Bakht Bhari for the lands in Thamewali and Chakrala. This suit was heard by Mr. Thorburn and on the 31st May 1874, it was held that the custom alleged re the Sardari had been clearly established (page 115, paper-book A), and the suit was decided on a compromise to the effect that, (1) Zulfikar should receive one-fifth of the lauds held by Bakht Bhari in Chakrala; (2) Yaran should be made the pagwala and successor in the Sardari to Budhe Khan and (3) Musammat Bakht Bhari should keep her life-interest in the lands. The Financial Commissioner (Mr. R. E. Egerton) on appeal to him on the 30th April 1875, remanded the Case for further decision, on the ground that the compromise was not binding, and the ease was again dealt with by Mr. Thorburn who decided it on the 24th November 1875, and gave Zulfikar a decree for one-fifth share of the lands in Chakrala, dismissing his claim to the Thamewali lands. On appeal, the Settlement Commissioner (Mr. J. B. Lyall) dismissed the claim for the Chakrala lands as well on the ground that it was time-barred.
7. Apparently, in spite of the fact that Yaran and Musammat Bakht Bhari were not on the best of terms, the land continued to be entered in the name of the latter till her death, which took place on the 26th September 1909. Yaran had predeceased her and the land was then taken possession of and entered in the name of Ghulam Muhammad, Yaran's eldest son, who, it appears, had been recognized as the pagwala.
8. On the 1st October 1912, Nur Khan, son of Muhammad Khan, instituted a suit against Ghulam Muhammad and four others for Rs. 1,800 being a one-fourth share of the moveable estate left by Bakht Bhari and alleged to have been taken possession of by Ghulam Muhammad.
9. On the same date a similar suit for a similar sum was brought against Ghulam, Muhammad alone by Fatteh Khan and Mehr Khan, sons of Zulfikar, and Sarfaraz, Zulfikar's grandson.
10. On the 7th October 1912, Nur Khan and his brother Mehr Khan instituted their present suit claiming a one fourth share in the lands situated in Thamewali and Chakrala, making Ghulam Muhammad and some forty-four other members of the family defendants.
11. On the 15th October 1912, Fatteh Khan, Mehr Khan and Sarfaraz also instituted their present suit against the same defendants similarly claiming one-fourth share in the same lands. The principal defendant in all the suits was Ghulam Muhammad who being a minor was represented by the Malik of Kala Bagh, and on his behalf the custom re the sardari was pleaded and it was also pleaded that the present stilts were barred under Rule 2, Order II, Civil Procedure Code, inasmuch as they should have been brought with the suits for moveable property. In any event it was said that the custom of yakmadri prevailed in the family and that the plaintiffs in both the cases had no claim to any of the lands held by Budhe Khan inasmuch as they were the descendants of Allah Yar by different wives.
12. The learned District Judge, on the 18th June 1915, allowed the two sets of plaintiffs to withdraw their suits for their shares in the moveable property, and under Order XXIII, Rule 1, Civil Procedure Code, gave them leave to bring fresh suits, and held that the present suits for the immoveable property were not barred by Order II, Rule 2, Civil Procedure Code. He then held that the custom re the sardari had been established, but that it related only to the Thamewali lands while the Chakrala lands were 'ancestral,' and as such divisible under the ordinary Rule of succession inasmuch as the custom of yakmadri had not been proved. He accordingly dismissed both the suits qua the Thamewali lands but decreed them qua the Chakrala lands.
13. Against this decision both sides have preferred appeals to this Court. Ghulam Muhammad's appeals are Nos. 58 and L9 of 1914 and we have heard Mr. Beechey on his behalf. Sarfaraz Khan's appeal is No. 194 of 1914 and he has been represented by Mr. L. M. Datta, while Nur Khan, whose appeal is No. 85 of 1914, has appeared before us in person. Mr. Datta quite frankly admitted that he had been wholly unable to understand the case and was of no assistance to us in any way. We are indebted to Mr. Beechey for a statement of the case and of the history of the family and the litigation culminating in these suits.
14. The points for determination are, (1) whether Order II, Rule 2, Civil Procedure Cede, bars the present suits; (2) whether the custom of sardari has been proved; (3) whether the succession to Budhe Khan is governed by the rale of yakmadri and (4) whether the Chakrala lands are attached to the sardeni or are ancestral. The decision of these points will dispose of all the appeals which will be dealt with in the one judgment.
15. With regard to point (1) in our opinion Order If, Rule 2, does not operate as a bar to the present suit. No doubt the two suits in question might have been, joint; possibly they ought to have been so joined but it is not necessary for us to decide this question inasmuch as it seems to us that the bar, if any, was removed by the orders passed by the learned District Judge under Order XXIII, Rule 1, Civil Procedure Code; the suits for the moveables having been allowed to be withdrawn with permission to bring fresh suits they must be regarded as non-existent. The effect of the permission given under this Rule and Order is to leave matters in the position in which they would have stood if no such suits had been instituted. In this view we are supported by Behari Lai Pal v. Srimati Baran Mai Dasi 17 A. 53 : A. W. N. (1894) 20l : 8 Ind. Des. (N.S) 358. which case was followed by Chevis, J., in Buta v. Bithen Das 9 Ind. Cas. 956 : 37 P. L. R. 1911 : 176 P. W. R : 1914 We accordingly hold that the present suits are not barred by Order 11, Rule 2, Civil Procedure Code.
16. Coming next to the second point, the history of the family and the litigation between some of its members, referred to already, leaves no room for doubt that the custom re sardari exists and is valid. It was urged that the custom was departed from and practically abrogated when Mmsammat Bakht Bhari obtained possession of the lands left by her husband Budhe Khan, in spite of the presence of Yar an. As stated above, however, her possession was with Yaran's consent, which was no doubt given because of the relationship between them, and there is every reason for believing that Yaran was the de fact manager of the lands in question. Doubtless the necessity for such a custom ceased to exist with the advent of British rule, but it has nevertheless been clearly, recognized and in agreement with the learned District Judge we hold that it has been proved and that Ghulam Muhammad is the present pagwala.
17. As to point (3) the or us of proving the custom alleged was mi Ghulam Muhammad. Admittedly among Awans of this locality (the parties to this case are Awana), the Rule of succession from father to son is governed by the pagwand rule, and, therefore, as laid down in Article 26 of Rattigan's Digest of Customary Law, in the case of collateral succession the Court may presume that the whole blood and half blood succeed together. Mr. Beechey, however, urged that a custom had been established by which, as between the sons themselves, on the death of one without issue his uterine brother or brothers succeeded to his estate to the exclusion of his half brothers, a reference to the customary law of the Mianwali District shews that, among the Awans, the Rule of succession as between brothers varies, and instances of both forms of secession are forthcoming. Five instances of succession per capita are given, two of which come from Thamewali, four instances where succession was per stirpes or according to the Rule of yakmadri are also entered, but pone of them are from this village. Mr. Beechey referred us to the evidence on the record relating to this custom and pointed out that, at page 88 there was an instance of the yakmadri Rule having been followed in this family, Muhammad Khan, son of Allah Yar, alone having succeeded to the lands left by his three uterine brothers to the exclusion of Allah Yar's other sons. This one instance alone does not seem to us to be sufficient to establish the departure from the general Rule which appears to be, that all the brothers, whether of full or half blood, inherit equally. It is also somewhat stultified by the fact that instance (2) at page 43 appears also to be an instance in this family where all the brothers succeeded equally. Not a single instance has been brought to our notice relating to Chakrala itself and it is significant that no attempt has been made to shew under which Rule of succession the ancestral lands in this village have devolved.
17. So far as this family is concerned, the succession to the Thamewali lands is governed by a special custom, so that instances from that, village can afford no real assistance. We have carefully considered all the material on the record and have arrived at the conclusion that Ghulam Muhammad has not discharged the onus which was on him and that the said custom of yakmadri has pot been proved in this case,
18. Finally, as to point No. 4, Mr. Beechey contended that the question as to whether the Chakrala lands were attached to the sardari or not was never really raised, that plaintiffs neither in their plaint nor in their written replication alleged that the Chakrala Iands did not go with the sardari and he urged that the finding of the learned District Judge on this point wss not correct. The plaintiffs, however, claimed a share in all the lands held by Budhe Khan, Ghulam Muhammad raised the question relating to the sard ri, and it seems to us that it was for him to shew that not only the Thame wali, but the Chakrala lands, also formed a part of the estate which appertained to the Sardarship. The history of this village Thamewali shews that its founders came from Chakrala where they already had lands. Those lands were clearly ancestral, and as such were not subject to the special Rule of succession which was prevalent in Thamewali. The whole of the former litigation shews that the struggle centred round the Thamewali lands alons. Allah Yar clearly inherited some lands in Chakrala from his father, Kamal, and regarding these lands there appears to have been no dispute so long as Budhe Khan was alive. It seems to us that the pagwala for the time being never advanced any claim, as pagwala to the Chakrala lands, and that Zulfikar's efforts were invariably directed towards securing the same rights in the Thamewali lands as he possessed in the lands at Chakrala. It is also clear that the sardari only came into existence with the foundation of village Thamewali, and in these circumstances we have no hesitation in holding that the view taken by the learned District Judge is correct and that the pagwala only holds the Thamewali lands as the Sardar and that his rights in the lands at Chakrala are governed by the ordinary rule. The plaintiffs are, therefore, clearly entitled to share in the Chakrala lands and we accordingly dismiss all the appeals, hut in the special circumstances that exist We direst that the parties bear their own costs in this Count.