Before M. R. Kayani, J.
NURA – Plaintiffs-Appellant
NAJABAT KHAN – Defendant-Respondent
Regular second Appeal No. 207 of 1948, decided on 13th January 1950, from the order of District Judge, Campbellpur, dated 5th May 1948.
Custom (Punjab) – Ancestral Property – Proof – Must descend by inheritance from common ancestor – Founding of village by common ancestor not enough – Land held in equal shares by descendants of common ancestor during first settlement – Presumption as to occupation of land by common ancestor only conjectural.
For land to be regarded as ancestral it is necessary that in should descend by inheritance. [p. 121].
For persons relying on the ancestral character of property, it was necessary to prove not only that the common ancestor of themselves and the last male owner actually held the property in dispute, but that it had devolved from him on the last male holder by inheritance, and that it was not enough that the common ancestor had founded the village.
The older view, that once there has been discovered a common ancestor who has founded the village, the onus is shifted to the party who questions the ancestral nature of the property to prove that the property in question has descended otherwise than by inheritance is no longer in favour, and for a very good reason, namely that since the common ancestor held the land, there may have been gifts or sales inter se among the successors of the common ancestor. [p. 123].
Where during the first Settlement M on the one hand and his first cousins, K and N on the other were owners of the suit land in equal shares it would be only conjectural to presume that the common ancestor at one time owned the land.
A I R 1936 Lah. 346 relied on. A I R 1935 Lah. 658 and A I R 1930 Lah. 255 referred A I R 1928 Lah. 247, 62 I C 984, 69 I. C 143, 72 Punjab Record 1913 and 90 Punjab Record 1914 distinguished.
Muhammad Shafi, for Appellant.
Muhammad Akram, for Respondent.