Instant Civil revision is directed against the judgments/decrees dated 2.10.2000 and 25.6.2001 passed by the learned Civil Judge and learned Additional District Judge, Gujrat, whereby suit and appeal of the petitioners were dismissed, respectively.
2. Succinctly, relevant facts are that mother of the petitioners namely, Mst. Sardar Begum claiming herself to be the daughter of Shah Muhammad alias Shahna filed a suit for declaration with consequential relief against Respondents Nos, 5 to 10, challenging order of the Additional Commissioner dated 2.7.1998, whereby mutation of Inheritance No, 7522 dated 25.2.1997 sanctioned on death of Shah Muhammad alias Shahna ,was reversed. Late Mst. Sardar Begum also pleaded in her suit that her father died on 21.7.1996 after prolonged ailment and during the. `Mart-ul-Maut'
Respondents Nos, 5 to 10 got transferred his landed. property through a fake gift depriving her from the heritory rights. It. was also asserted that though mutation of Inheritance No, 7522 dated 25.2.1997 was sanctioned in favour of Mst. Sardar Begum and Respondents Nos, 5 to 10 and was maintained by the A.C/Collector on appeal of the respondents on 30.9.1997, but it was erroneously annulled by the Additional Commidedoner (Revenue) through his void order dated 2.74998, Order dated 2.7.1998 was assailed being male fide, collusive, illegal void and Without jurisdiction. The original plaintiff (Mst. Sardar Begum also prayed by way of consequential relief a permanent injunction restraining the respondents from interfering in her ownership; possessory rights over the land inherited by her from Shah Muhammad. her father.
3. It respondents Nos, 5 to 10 being defendants in the suit contested it by filing their written statement wherein they raised certain preliminary objections regarding maintainability of the suit and male fi.de of the petitioners to approach, the Civil Court. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge, seized of the matter, after doing the needful on the basis of his appraisal of evidence, dismissed the suit, vide his judgment/decree dated 2.10.2000. Mst. Sardar Begum, the original plaintiff, had died pending suit and in her place petitioners were impleaded/substituted as plaintiffs.
4. Petitioners aggrieved of judgment/decree dated 2.10.2000 passed by the trial Court filed an appeal before the learned Additional District Judge, but remain unsuccessful, as the same was dismissed through appellate judgment/decree dated 25.6.2001. Thereafter, they filed the revision Petition in hand, which was admitted to regular hearing and after completion of record, has now been placed for final determination. Respondents were served and appeared through their counsel.
5.Learned counsel for the petitioners submitted that the petitioners had proved through documentary. as well as. oral evidence that their mother Mst. Sardar Begum was daughter of Shah Muhammad alias Shahna, but the view taken by the Addl. Commissioner (Revenue) through his order dated 2.7.1998 was result of presumptive findings which were contrary to the record produced before the trial Court. It was further submitted that. Shah Muhammad son of Nor Muhammad, the predecessor of the respondents, was resident of village Rania, tehsil Kharian, district Gujrat, but their mother was deprived of her right of inheritance in the estate of her father Shah Muhammad alias Shahna on a misconceived view that he belonged to village Jaura of the same tehsil and district. It was further contended that mother of the petitioners could not have been deprived of the property which vested in her, the moment her father Shah Muhammad alias.
Shalina breathed his lost solely on the ground that copy of her birth entry (Exh. P.2) contained an entry that she had born in village Aadowal. It was further emphasized that mutation of inheritance was correctly sanctioned by the concerned revenue officer, which was maintained in appeal. but, the learned Additional Commission fell in error of law in upsetting the same out of mere conjectures and surmises. It was claimed that petitioners have been deprived of their rights on the basis of no evidence and both the judgments/decrees of the Courts below run counter to the record, thus the same are not sustainable. Serious misreading/non-reading of the record was also claimed by the petitioners in support of their prayer in the revision petition.
6.Learned counsel appearing on behalf of the respondents refuted the arguments of the petitioners, supported the concurrent judgments/decrees of the two Court below and urged that the birth certificate Ex. P. 2 did not relate to mother of the petitioners, as the same was with regard to one Sardar Begum who died at village Aadowal, where neither any of the parties ever resided nor the property in question was located. He further emphasized that Shah Muhammad alias Shahna belonged to village Rania, where the property subject of suit was situated, hence the petitioners cannot be granted a decree on the basis of evidence on the file. A reference was also made to death certificate of Shah Muhammad (Ex. D.3) to contend that he died in village Rania and not at the place of birth of Mst. Sardar Begum as mentioned in Exh. P.
2. It was further submitted that concurrent findings of facts returned out of due appraisal of evidence documentary/oral on the file is immune from interference in revisional jurisdiction of this Court, hence the, same was prayed to be dismissed.
7.I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. The original plaintiff Mst. Sardar B'egum, who was mother of petitioners had assertively claimed in her plaint that she was daughter of deceased Shah Muhammad alias Shahna son of Noor Muhammad Besides it, the initial mutation of Inheritance No, 7522 dated 25.2.1997 was sanctioned in her favour and it was affirmed in appeal by the Collector concerned vide order dated 30.9.1997, order of the Additional Commissioner dated 2.7.1998 impugned in the suit demonstrated that he proceeded on mere assumption to hold that Mst. Sardar Begum was not daughter of Shah Muhammad alias Shahna as her name was not mentioned in the pedigree table. The other reason which weighed with the Additional Commissioner (Revenue) for annulling the mutation of inheritance was that the same was sanctioned without attestation of the Lumberdar of the village. All the reasons rendered in support of order dated 2.7.1998 by the Additional Commissioner (Revenue) Gujranwala Division were not lawful and at the -ame time were not enough to deprive a person from heritory rights. Petitioners who were impleaded/substituted as plaintiffs in place of their mother pending suit, in order to prove her right of inheritance on the basis that their mother was daughter of Shah Muhammad alias Shahna besides examining three witnesses, produced documentary evidence. All the three PWs i,e, Muhammad Khan son of Lal Khan (PW.1), Fazal Hussain son of Sardar Khan (PW.2) and Muhammad Afzal son of Sardar Khan (PW.3) unanimously deposed that Mst. Sardar Begum was the daughter of the propositus namely, Shah Muhammad alias Shahna. These witnesses were subjected to extensive/length cross-examination, but veracity of their statements could not be shattered. Besides this oral evidence, petitioners had produced copy of the Birth Register No, 62 maintained by District Health Officer, Gujrat, relating to the area falling in Sadar Gujrat (Exh. P.2)
This document proved that Mst. Sardar Begum was daughter of Shah Muhammad son of Noor Muhammad and was born on 11.10.1928. This entry was made by the concerned office at Serial No, 1767 of the register. No doubt, in this document place of residence of father of Mst. Sardar Begum is mentioned as village Aadowal, which is not the place of death of Shah Muhammad son of Noor Muhammad, as mentioned in Exh. D. 4, wherein , his place of death is stated to be village Rania, Union Council Jaura, tehsil Kharian, district Gujrat. I have multiple reasons to hold that Exh. P. 2 related to mother a the petitioners and this document could not have been thrown out of file for the reasons noted by the two Courts below. In the first place, Exh. P, 2 not only mentioned the name of father of Mst. Sardar Begum bin also mentioned name of her grandfather, which is not denied by her adversaries. In the second place the birth entry relied by the petitioner was made on 12.10.1928 about 75 years ago and remained intact throughout. The existence of his entry having not been annulled by any competent Court, this document has its own evidentiary value and cannot be disbelieved simply for the reason that Shah Muhammad at the time of birth of Mst. Sardar Begum was not residing in village Aadowal. Respondents brought nothing on file to show that Shah Muhammad son of Noor Muhammad had no business to live in village Aadowal and against it claim of the petitioners was that he owned some property in that village as well. Be that as it may, a person not having any property in any village, can go and reside there and his spouse can give birth to child during this abode, unless otherwise proved. I am not ready to accept the argument of the respondents that Ex. P. 2 related to some other woman especially when the file was absolutely thirsty of the proof that some other Mst. Sardar Begum with the parentage of Shah Muhammad and grand-parentage of Noor Muhammad also resided in village Aadowal.
8. Taking up the plea that since name of Mst. Sardar Begum was not mentioned in the pedigree table, she was not daughter of Shah Muhammad alias Shahna. Addl. Commissioner (Revenue) overlooked the fact that the pedigree table prepared earlier to the birth of Mst. Sardar Begum was not supposed to carry her name therein. Another material fact escaped his notice that in Central Punjab, agriculturists tribes were being governed by the Customary law where under daughters normally did not inherit. Name of a female, not entitled to inherit under customary law, was not to be included in pedigree table as it was prepared on the basis of mutations/jamabandis. I fail to understand that how name of a lady who had not owned any property or had not inherited her father by that time, could appear in the pedigree table. Besides all this, evidence produced before the Civil Court was not properly considered and the two Courts below fell lute an error in having any pursuance from the revisional order of A.C.(R). l which On the face of it was contrary to facts. I have also no ambiguity in that in such cases determination of rights of inheritance involved intricate questions which could not have been resolved in summary proceedings like mutation. The Additional Commissioner (Revenue) while discharging revisional jurisdiction vested in him under the West Pakistan Land Revenue Act. 1967 was supposed to decide the matter within the parameters which were applicable to the revenue officer while sanctioning the mutation. Under law, the mutation proceedings being summary in nature the Additional Commissioner should have left open the dispute of inheritance for its determination by the Civil Court which should have been directed to be approached by the parties, aggrieved. This brings thehold that the Additional Commissioner (Revenue) exercised excessive jurisdiction which did not vest in him, but this aspect of the matter escaped notice of both the Courts below, who -concurrently deprived the petitioners of their proved right of inheritance. Besides this, gift by Shah Muhammad alias Shahna in favour of Respondents Nos, 5 to 10 has not been proved on the file.
9. It is also settled by this time that mutation in itself does not create or extinguish right in any property as the same is maintained only for fiscal purposes. On death of any owner property vests in his heirs and the persons so inheriting the property, hold the same irrespective of entries in the revenue record. If any precedent is needed, reference can be made to the judgment of the Honourable Supreme Court in the case of Ghulam Ali and 2 others vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 S.C.1). In this judgment; it was held that persons inheriting the property were not obliged to file a suit for declaration that mutation was sanctioned wrongly whereas to such persons right to file a suit accrues only on denial of their title. Be that as it may, there was overwhelming evidence on the file to show that Mst. Sardar -Beg-um mother of the petitioners was daughter of Shah Muhammad alias Shahna son of Noor Muhammad, which was not only misread but was ignored by both the. Courts below while returning the impugned judgments/decrees.
10.For the reasons noted above and the scan of evidence on the file revealed that judgments/decrees of the two Courts below dated 2.10.2000 and 25.6.2001 are tainted with material irregularities/illegalities noted above, thus the same are neither immune from interference by this Court nor the same can be allowed, to be sustained. This revision petition is accordingly accepted and the judgments/decrees of the two Courts below are set aside with the result that suit of the petitioners is decreed, as prayed with costs throughout.