Law: Civil Procedure Code (V of 1908)

Section: 100

Law: Limitation Act (IX of 1908)

Section:

  Custom-- --- Rule of inheritance in the State of Jammu and Kashmir before independence-- Proof---Initial presumption was in favour of personal law of parties and not in favour of Custom---Party raising plea of Custom had to allege it in specific terms, in the pleadings and prove it as such in the State of Jammu and Kashmir, before independence---Estate of deceased, the last owner, unless Custom was pleaded expressly and proved in like manner; was to devolve on the heirs in the manner prescribed in personal law---Fact that the property exclusively devolved on the widow and that a mutation was sanctioned to that effect, by itself was not sufficient to raise presumption in favour of any special Custom prevailing in the family of deceased---In absence of proof of Custom, parties were deemed to be governed by the personal law of inheritance. Mst. Gulnara Begum's case PLD 1959 AJK 5 and Mst. Fatima Bibi's case PLD 1983 SC (AJK) 53 rel. Practice and procedure-- -Rules of procedure pertaining to civil actions permit a plaintiff to plead inconsistent pleas and ask alternate reliefs arising out of material facts of the case---Inconsistent facts which could not co-exist are, however, not permitted to be pleaded---Where a plaintiff had pleaded alternate case  or  facts,  unless  such  facts  were self-destructive, it would be expedient to allow the suit to continue for its final determination---To plead sole title by alienation in an estate, and in the alternative, to claim adverse possession for want of   valid transaction, was thus permissible---Plaintiffs plea that she was sole owner of the estate and alternate plea of inheritance under personal law were not self-destructive---Alternate plea was, therefore, permissible and the same could not be construed as admission of Custom. Civil Procedure Code (V of 1908)--- ---S.100--New   plea--Fresh   plea   in appeal--Non-raising of plea before Trial Court --Effect---Plea which had neither been raised in written statement nor even at the later stage of the trial, could not be allowed to be raised at appellate stage, before High Court.--[Appeal…