' The brief facts out of which present petition arises are that the land in question measuring 24 Kanals is situated in Chak No.8/1R, Tehsil and District Okara, which was owned by late Jaffar Khan.
After death of said late Jaffar Khan, Mutation of Inheritance No.925 was sanctioned by the Revenue Officer on 12-3-1996 considering the original owner as Sunni in favour of the respondents i.e. Mst.
Jannatay Bibi, Babu Khan and petitioners. The petitioners being aggrieved filed suit for declaration along with permanent injunction in the Court of Civil Judge Okara. According to the contents of plaint, it is alleged that late Jaffar Khan belonged to Fiqa Jaffaria. Mst. Jannatay Bibi was not wife of late Jaffar Khan. The respondents filed written statement controverting the allegations levelled in the plaint except Mst. Bashiran Bibi, who has filed consenting written statement. Out of pleadings of the parties, the learned trial Court famed the following issues:-- ISSUES
(1) Whether the deceased Jafar Khan, father of the plaintiff was follower of Fiqa Jafria till the time he breated his last? OPP
(2) If the above issue is proved, whether the plaintiff being daughter of the deceased, is sole heir be entitled to succeed the entire estate, as such the impugned Mutation of Inheritance No.925 dated 12-3-1996 in favour of the defendants is illegal, void and ineffective on the rights of the plaintiff to that extent? OPP
(3) Whether defendant No.1 Jannatay Bibi was widow of Jaffar Khan and the impugned mutation of inheritance was validly sanctioned in favour of the defendants? OPD
(4) Whether the plaintiff has got no cause of action to bring this suit? OPD
(5) Whether this suit is improperly valued for the purpose of court-fee and jurisdiction? OPD
(6) Whether the defendants are entitled to recover special cost under section 35-A of C.P.C., if so to what quantum? OPD
(7) Relief.
' The learned trial Court dismissed the suit vide judgment and decree dated 12-7-2004. The petitioners being aggrieved filed an appeal before the learned Addl: District Judge, Okara, who also dismissed the same vide impugned judgment and decree dated 2-3-2005. Hence, the present revision petition.
2. The learned counsel of the petitioners submits that both the Courts below erred in law to non- suit the petitioners merely relying upon the statement of D.W.1. Imam Masjid, who has performed "Funeral Ceremony" of late Jaffar Khan in accordance with Sunni Sect, which is not proper appreciation of evidence on record by the Courts below. In support of his contention, he relied upon unreported judgment dated 26-6-2001 passed by the Honourable Supreme Court in C.P.
No.1179/L of 1998 titled "Ismail v. Mst. Azizan Bibi" He further submits that the mutation was sanctioned in the presence of three witnesses, but the respondents failed to produce any evidence, therefore, the impugned mutation was not proved on record in accordance with provisions of Qanoon-e-Shahadat Order 1984, but this facts was not considered by the Courts below in its true perspective, therefore, judgments of both Courts below are the result of misreading and non- reading of record. In support of his contention, he relied upon the followings judgments:-- "Karamat Hussain and others v. Muhammad Zaman and others" (PLD 1987 SC 139).
"Nasir Abbas v. Manzoor Haider Shah" (PLD 1989 SC 568).
' He further submits that the petitioners/plaintiffs produced six witnesses along with documentary evidence to prove on record that late Jaffar Khan belonged to "Fiqa Jaffaria", but both the Courts below wrongly rejected the evidence of the petitioners/plaintiffs while appreciation of evidence on record. The land in question was allotted in the name of the original owner on 14-6-1957, which contained a note by Halqa Patwari that "Mutation of inheritance would be sanctioned in accordance with "Fiqa Jaffaria" and this fact was also supported by the petitioners by producing the witnesses, who have stated in their statements that late Jaffar Khan has given "Chanda" to them as Member of their Society, who are also belonged to "Fiqa Jaffaria". He further submits that the judgments of both the Courts below are the results of misreading and non-reading of record.
3. I have given my anxious consideration to the contention of learned counsel of the petitioners and perused the record.
4. The basic document relied by the petitioners/plaintiff is Exh.P.1 dated 20-4-1957, which was rejected by the Courts below with cogent reasons firstly that the petitioners/plaintiffs have produced photocopy and Court has called original record in which this note was not mentioned, therefore, I do not find any infirmity and illegality in the impugned judgments of Courts below. It is better and appropriate to reproduce the findings of First Appellate Court on Issues Nos.1 and 3 to resolve the controversy between the parties:- ISSUE NO.1 ' This issue is most important issue in this regard. To prove this issue, plaintiff has relied upon oral as well as documentary evidence. In oral evidence produced six P. Ws. Similarly in rebuttal, defendant has also relied upon the oral as well as documentary evidence. Onus to prove this issue was on plaintiff. Even otherwise presumption in a Sub-continent is that every Muslim is deemed to Sunni until and unless contrary is proved. To prove the sect of deceased Jaffar Khan, plaintiff has examined P.W.1 Patwari Halqa, who brought the record of Roznamcha No.1426/57 and copy of said Roznamcha produced in evidence as Exh.P.1. Perusal of that Roznamcha shows that order of A.D.N.
Was passed on 20-4-1957 wherein it was directed that in RL-II upon which land was confirmed in favour of deceased. Note be given that Jaffar Khan belongs to Shia sect and further direction was given that on the death of Jaffar Khan, his mutation be sanctioned in accordance with Fiqa Jaffaria. In the same context copy of RL-II/Exh.P.5 has been produced which bears the note as mentioned in Exh. P.1. In rebuttal of this documentary evidence, defendant has summoned original record of RL-II, which was produced by D.W.2 wherein claim form of Jaffar Khan was entered and according to that record, no note as directed in Exh.P.1 and as mentioned in Exh.P. 5 is available in original RL-II.
' Learned counsel for the appellant argued that copy of Roznamcha is record of more than thirty years old. Presumption of truth is attached to it. No rebuttal to this document is available. No objection was taken regarding admission of this document in evidence, hence no objection can be taken at this stage regarding genuineness of this document while on the contrary learned counsel for the respondents argued that alleged direction of ADM for giving note on RL-II has been proved falsely by the statement of D.W.2 and from the record of original RL-H wherein said note is available. Original order of ADM dated 20-4-1957 has not been produced which means that best evidence in this regard was withheld, even said Roznamcha has been prepared as admitted by P.W.1 is not on a pro forma meant for that purpose. Every patwari had printed book of Roznamcha having particular number of leaves. Against each respective number of leave entry in Roznamcha is made while P.W.1 has admitted that it is prepared on a simple paper which shows that this piece of evidence has been manipulated by the plaintiff, hence has no value.
' Besides other oral evidence, which will be discussed later on, to prove or disprove sect of deceased Exh.P.1 and Exh.P.5 statement of P.W.1 and P.W.2 is most important evidence. This Court has gone through the documents and statement of P.Ws. In this regard and found that entry recorded in Exh.P.1 regarding sect of particular person is unique phenomenan which is not generally found in Revenue Record. Original order of ADM dated 20-4-1957 has not been produced on the basis of which Roznamcha was entered. This Roznamcha has no number to show on what number of leave of Roznamcha, this entry was made, while entry in Roznamcha is made in printed book available with the Patwari Halqa. Secondly said entry in RL-H has been rebutted by the production of original record of RL-II and statement of D.W.2. There is no explanation, how RL-II produced by the plaintiff, as Exh.P.5 carries note regarding sect of deceased while original record do not carry any such note. Meaning thereby that this entry has been proved to be forged one through record, which further shows the intention of the plaintiff that to prove her father's sect, according to her own wishes, she has tried to develop forged entry. This entry has further made entries in Roznamcha doubtful. So in this background, no presumption can be attached to this document. Besides this appellant has produced a person, who belong to Shia sect, to prove that deceased belong to Shia sect, specially P.W.6 has produced the receipts through which contribution from the deceased recorded by P.W.6 but perusal of those receipts shows that those belong to mosque and Imam Bargah, situated in Kamoki while deceased was resident of Renala Khurd. No connection has been established between deceased and Imam Bargah of Kamoki.
Similarly Receipt No.258 pertains to year 1979 while Receipt No.177 pertains to year 1983. All these facts show that these documents are not reliable, has been prepared as an afterthought in effort to prove the sect of plaintiff as Shia. The plaintiff's son has appeared as attorney of her mother whose statement has also been perused and who has tried to conceal the fact that he was Imam of Janaza prayer of deceased while he is resident of same village where Janaza prayer was performed and deceased was his maternal grandfather, so all these facts show that the plaintiff has herself failed to [prove sect of deceased as Shia rather above discussion shows that mala fide effort has been made to develop record by applying illegal practice to prove sect of deceased as Shia. Findings of the trial Court regarding this issue is upheld. ISSUE No.3 ' Onus of this issue was placed on defendant by trial Court, which has wrongly placed on defendant. It is plaintiff who has alleged that Janatay Bibi is not widow of deceased Jaffar Khan, so onus should have been on plaintiff to prove this fact. In this regard, learned counsel for the plaintiff has relied upon evidence of P.W.5 and argued that assertion of P.W.5 that defendant No.1 was not wife of his grandfather, has not been cross-examined by the defendant, hence it would be deemed to be admitted under Article 133 of Qanun-e-Shahadat. On the contrary learned counsel for the defendant argued that D.W.3 Babu Khan would have benefited if he has also denied that Janatay Bibi is not widow of deceased his share would have been increased in that case but he has stated that Janatay Bibi was widow of deceased. Mutation Exh.P.4 was sanctioned in the village wherein both the Laumberdar Imam Masjid of the village and different other persons, who were related to the deceased have appeared and stated categorically that deceased belong to Sunni sect and Janatay Bibi was his widow and there is no rebuttal of this evidence except sole statement of grandson of deceased as attorney of his mother.
' After the death of defendant No.1, daughter of defendant No.1 filed consenting written statement accepting the plaint but she did not appear nor she was produced as witness to support the contention that her mother was not widow of deceased Jaffar Khan, hence due to non- appearance of daughter of defendant No.1, no weight can be given to the written statement filed by her, as no one was to contest the suit on behalf of defendant No.1, hence non cross-examination on the part of defendant No.1, regarding the fact that defendant No.1, was not widow of Jaffar Khan, cannot be termed as admission on the part of defendant No.3. Onus was on the plaintiff to prove this issue but they have failed to prove hence, this issue is decided against the plaintiff and in favour of defendant."
5. Mere reading of the operative part of the impugned judgment of First Appellate Court, clearly shows that witnesses produced by the petitioners did belong to village where the land is situated as well as original owner, who died where the "Namaz-e-Janaza" was performed; whereas the respondents/defendants have produced witnesses of the area, where the land is situated and "Namaz-e-Janaza" was performed. The witnesses produced by the petitioners/plaintiffs being office-bearers of Anjuman-e-Fiqa Jaffaria, did not produce a single document to show that they are office-bearers of Anjuman Fiqa Jaffaria. Similarly, receipts are contrary qua dates. According to the Receipt No.177 Mark -"B" is dated 21-7-1983 and Receipt No.258 Mark-"B" is dated 2-8-1979, receipt of receiving of Chanda Mark-"D" is dated 19-9-1985, receipt Mark-"E" is dated 2-7-1983 and certificate of Membership of Fiqa Jaffaria Mark-"F" is dated 15-2-1981.
6. In case, dates of receipts are put in juxta-position, then both the Courts below were justified for non-believing the receipts as genuine and have rightly rejected the said documents. The judgments cited by the learned counsel of the petitioners clearly reveal that two "Namaz-eJanaza" were performed as cited in the case, one performed by Sunni Maulvi and the other performed by Shia Maulvi; whereas in the present case "Namaz-e-Janaza" was only performed by one Maulvi belonging to Sunni Sect. The judgments cited by the learned counsel of the petitioners are distinguished on facts and law. It is also settled principle of law that each and every case is to be decided on its own peculiar circumstances and its facts, as per principle laid down by the Honourable Supreme Court in "Trustees of Port of Karachi v. Muhammad Saleem" (1994 SCMR 2213).
It is pertinent to mention here that the parties are bound by their pleadings. The petitioners have not taken stand in the ground of appeal before the First Appellate Court that the respondents- plaintiffs failed to produce the attesting witnesses of mutation in question, therefore, the petitioners are not within their rights to agitate this plea before this Court. In arriving to this conclusion, I am fortified by the law laid down by the Superior Courts in "Murad Begum's case" (PLD 1974 SC 322) and in "Hussain's case" (PLD 1977 Karachi 320). It is also pertinent to mention here that in Indo-Pak Sub- continent, there is an initial presumption that Muslim is governed by "Hanfi" law unless contrary is established by the strong evidence in view of sections 28 and 31 of "Muhammadan Law" by "Mollah".
In arriving to this conclusion, I am fortified by the law laid down by the Superior Courts in the following judgments:--##TE# ' Pathana's case" (PLD 1965 SC 134); "Sabir Hussain's case (1989 CLC 1591); "Zain-ul-Hassan's case"
(1998 MLD 1857); "Hussain's case" (PLD 1977 Karachi 320); "Mst. Sardar Bibi's case' (PLD 1954 Lah.
480) and "Maula Bakhsh's case" (PLD 1952 Sindh 54).
' In the present case, both the Courts below have given concurrent findings of fact on Issue No.1 that late Jaffar Khan is "Sunni" by faith. Whereas the petitioners' counsel failed to point out any material irregularity committed by the Courts below at the time of appreciation of evidence on record by rendering the findings of facts against the petitioners, therefore, findings on this issue are upheld.
The petitioners failed to rebut the initial presumption by good evidence and did not bring on record any circumstantial evidence to show that late Jaffar Khan has attended "Majlis" of "Shia" Sect, therefore, the petitioners failed to discharge its burden of proof by rebutting circumstantial evidence to rebut the initial presumption that late Jaffar Khan is not governed by "Hanfi Law", which is gist of aforesaid case-law, therefore, judgments of both the Courts below are within parameters prescribed by the Superior Courts in the aforesaid judgments. Similarly, both the Courts below have given concurrent findings of fact on Issue No.3 after proper appreciation of evidence on record that Mst. Jannatay Bibi was widow of the late Jaffar Khan and mutation in question was sanctioned in accordance with law.
7.It is also settled principle of law that this Court has very limited jurisdiction to set aside the findings of the learned District Judge while exercising powers under section 115 of C.P.C. As per law laid down by the Privy Council in "N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madras" (PLD 1949 P.C. 26). The relevant observation is as follows:-- "This is section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provisions of law, or with material irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
' The judgment of the Privy Council was considered and relied upon by this Court in "Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood" (1985 CLC 657).
7. It is pertinent to mention here that the judgment of this Court is upheld by the Honourable Supreme Court in C.P. No.1146 of 1984 vide judgment dated 31-3-1985 which was reaffirmed and approved by the Honourable Supreme Court in "Board of Intermediate and Secondary Education, Lahore" v. Ghulam Qadir" (PLD 1988 SC 625). The learned counsel of the petitioner failed to bring the case within the principle prescribed by Privy Council in the aforesaid judgment and also failed to point out any piece of evidence, which was non-read and misread by both the Courts below, therefore, I am not inclined to interfere in the concurrent findings of the facts of the Courts below, which have been given after proper appreciation of evidence on record. Therefore, I do not find any infirmity and illegality in the impugned judgments of Courts below and findings on both the issues are upheld.
' In view of what has been discussed above, this revision petition has no merit and the same is dismissed.