' On 23-11-1992 the respondent No,1 filed a suit against the petitioners and the remaining respondents. In the plaint, it was stated that the suit-land was owned by Mahmood son of Karim Bakhsh and Mst. Hayat Khatoon daughter of Esa, Caste Baloch Sohrani. Mahmood died in the year 1934 while Mst. Hayat Khatoon died in the year 1944. They were survived by a son Abdul Aziz i,e, petitioner No,1 and a daughter, namely Mst. Ghulam Zahuran, mother of the respondent No,
1. Mst.
Ghulam Zauhran died in the year 1945. She was entitled to 1/3 share in the estate of her parents.
However, the mutation of inheritance was attested only in favour of petitioner No,1 being the son of the said couple. He sought a declaration that he is entitled to 1/3 share in the suit-land i,e, estate of said Mahmood. The petitioners in their written statement took the plea that the estate of Mahmood devolved upon him. Under Custom. He was a minor at the time of death of his father and the mutation was got entered by Ghulam Rasool the father-in-law of Mst. Zauhran (paternal- grandfather of the respondent/plaintiff). The precise plea was that Mahmood having died before 15-3-1948 and the land having been inherited by the petitioner No,1 he will be deemed to be the exclusive owner of the same. The transferees from petitioner No,1 also filed written statement on the same lines. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit on 17-9-1998. A first appeal filed by the petitioners was dismissed by a learned Additional District Judge, Muzaffargarh, on 27-9-2001.
2. Learned counsel for the petitioners contends that the evidence on record has been misread by the learned Courts below while recording the finding that Mahmood was governed by Muslim Personal Law at the time of his death in the matter of succession. He refers to the evidence led by the respondent-plaintiff himself in this matter. He particularly contends that the Riwaj-i-Aam Exh.D.9/1-2 and Exh.D.10/1-2 had been brushed aside by the learned Additional District Judge illegally. Learned counsel for the respondents, on the other hand, contends that the effect of section 2-A of the Muslim Personal Law (Shariat) Application Act, 1962, is that the estate of Mahmood was to devolve under the Muslim Personal Law. He further supports the impugned judgments and decrees with reference to the evidence on record.
3. I have gone through the copies of the records. It will be seen that the precise question to be decided in this case was as. To whether Mahmood was governed by Custom or Muslim Personal Law in the matter of succession. Bashir Ahmad respondent/plaintiff appeared as P.W.1. He stated his age to be 50 years on 27-3-1995. His evidence on the. Point hardly matters as he was not even born when Mahmood Khan died. P.W.2 is Ghulam Nabi son of Khair Muhammad Caste Baloch Sohrani. He was aged 95 years when his statement was recorded on 27-3-1995. He proceeded to state in the very examination-in-chief that the parties are his old relatives and earlier they followed Custom but now are following Shariat. He was further made to state in his examination-inchief that he cannot say as to whether the daughters get share or not. He also stated that his mother and aunt got a share in inheritance but the reason stated by him was that it was so because they did not have any brother. Now certified copies of the extract from Riwaj-i-Aam of Baloch Tribes were produced as Exh.D.9 and Exh.D.10 and the documents were exhibited without any objection from the plaintiff-respondent. Exh.D.9 was prepared during the settlement of 1921-22. The question posed is if a man dies and he is survived by widow or widows, son or sons, daughter or daughters or other relatives, how the estate devolves. Regarding Jats, it is written that in the presence of sons, they are only entitled to inherit. If there are no sons but there are widows then the widows inherit and if there are no sons and widows then daughters inherit. The answer in respect of the Baloch is the same as the Jats. Instances are also quoted. Exh.D.10 is the answer to a question formulated as to whether or not in the presence of sons, the daughters get the share. The answer is recorded in the same manner i,e, amongst the Jats the daughters do not inherit in the presence of sons and same is the case with the Balochs. Instances are quoted.
4. Now I find that the learned trial Court has not at all referred to this document in its judgment, dated 17-9-1998. The learned Additional District Judge while noting the contention of the learned counsel for contesting parties has referred to the said documents respectively in paras.6 and 7 but while discussing the matter in para.9 of his judgment, he has completely ignored the same.
5. Now as to the evidentiary value of the said Riwaj-i-Aam, I may refer here to the following observations of the Honourable Supreme Court of Pakistan in the case of Mst. Shahzadan Bibi and others v. Amir Hussain Shah PLD 1956 SC 227 appearing, at page 232 of the report:-- "Where a tribe was consulted at the time of the preparation of the Riwaj-i-Aam, an initial presumption arises that a member of that tribe is governed by custom and not by the personal law, and the onus to show that he has ceased to be governed by custom lies on those alleging the same. This is the ratio decidendi of a long string of authorities e.g. Mst. Parvin Kumari v. Gokal Chand Rala Ram AIR 1949 EP 35, Muhammad Yusuf v. Muhammad Abdullah AIR 1944 Lah. 117 and Ata Muhammad v. Muhammad Shafi AIR 1944 Lah.
121.
' The value that has to be attached to the entries in the Riwaj-i-Aam is now no longer in doubt. In Beg v. Allah Ditta 45 PR 1917, it was held that statements in. Riwaj-iAam, which is a public record prepared by a public officer in the discharge of his duties and under Government rules are a strong pieces of evidence even without instances, that their contents are true and must be accepted unless rebutted. Here again, to start with, a presumption would arise that the custom of a tribe is what is described in the. Riwaj-i-Aam. This dictum was reaffirmed in Vaishno Ditt v. Rameshri ILR Lah. 86 (PC)."
There is no rebuttal by the plaintiff-respondent of the said documents further note with some concern that the evidence of the P.W.2 has beeniB misread and misquoted in the impugned judgment. So far as the documents relied upon by the learned Additional District Judge are concerned, these are not relevant at all. He himself noted that these pertained to some other tribes but he has proceeded to rely upon the same by holding that notwithstanding the fact that the documents pertained to some other tribe, area is the same.
6. Now once it is held that Mahmood was governed by custom in the matter of inheritance and in view of the admitted facts that he as well as his widow died before 15-3-1948, the land devolved upon the petitioner No,1 and under section 2-A of the said Act, he is the person who is last male holder having inherited land under custom but by virtue of the said provision of law it shall be deemed that he became a full owner and shall be deemed to have inherited the land under the Muslim Personal Law. Reference be made to the case of Ghulam Farid and 2 others v. Muhammad Nawaz and 12 others 2000 CLC 1216.
7. For all that has been discussed above, the civil revision is allowed. Both the impugned judgments and decrees of the learned Courts below are set aside and the suit filed by the plaintiff-respondent is dismissed without any orders as to costs. #EndJudgment