' ABDUL LATIF KHAN, J.---Aggrieved of the judgments and decrees dated 8-12-2010 and 12-4-2010 passed by the learned Additional District Judge-V and learned Civil Judge-VI, D.I.Khan respectively vide which his appeal and suit were dismissed, the petitioner has preferred the instant revision petition.
2. Learned counsel for the petitioner contended that judgments and decrees passed by the Courts below are against facts and are the result of misreading and non-reading of evidence available on file. It was argued that the Courts below have wrongly held the burden of proof upon the plaintiff, as respondents/defendants being beneficiaries were bound to prove the validity of mutation. It was added that after the death of Fateh, his widow Mst. Bakhu and daughter Mst. Jannu were deprived of legacy and thereafter, on the death-of Sawan, his legacy rightly devolved upon his real sister Mst. Jannu and mother Mst. Bakhu but their names were simply crossed without assigning any reasons and name of Sohna was entered and mutation was wrongly attested on the basis of another Mutation No,349 attested on 25-3-1938 of Jhok Ladhu in favour of Sohna. It was also argued that the Courts below have wrongly relied upon the pedigree table produced by ADK and failed to understand the situation that pedigree table only contains the names of those, who were shown in the disputed inheritance mutation and were incorporated in the revenue record. It was added that written statements contain the plea that 'riwaj' was in force at the time of death of Fateh but not proved through evidence and Islamic law governing inheritance has been ignored.
3. As against that, learned counsel for the respondents contended that plaintiff has to prove the case. It was contended that relations averred in para-1 of the plaint were specifically denied by the defendants in the written statement and as such had to prove it. He argued that though in the written statement Fateh was shown to have died during 'riwaj' but in fact shariah was in force. He contended that in the year 2010, Allah Bakhsh was aged about 60/65 years as per his statement recorded in the Court, hence his deposition is hearsay evidence and cannot be relied upon. It was argued that pedigree table does not contain the name of plaintiff and has no relation with Fateh and Mst. Bakhu and Mst. Jannu. He contended that property originally belonged to Fateh but plaintiff could not establish his relation with him and as such not entitled to any relief and rightly non-suited by the Courts below.
4. I have given my deep thought to the arguments of learned counsel for the parties and perused the record with their able assistance.
5. The perusal of plaint reveals that plaintiff has made claim that one Fateh son of Ghulam Mohammad was the original owner of suit property, who had two wives namely Mst. Bakhu and Mst. Jantan. From his wife Mst. Bakhu, his son. Sawan and daughter Mst. Jannu were born and from other wife Mst. Jantan, his son Sohna and a daughter and she was predeceased. The legacy of Fateh devolved upon his two sons, depriving his widow Mst. Bakhu and daughter Mst. Jannu. Later on Sawan also died issueless and his legacy was to be devolved upon his mother Mst. Bakhu and real sister Mst. Jannu and to this effect a mutation was also entered with patwari halqa, but subsequently their names were deleted from it, substituted by step brother Sohna and mutation was thus entered in his name and got attested.
6. Admittedly the name of plaintiff does not find mention in the revenue record as not incorporated in it and similarly not disclosing in pedigree table, as only those names are to be entered in it which are incorporated in mutations and thereafter recorded in revenue record. These entries have been questioned by the plaintiff. The scanning of evidence available on file reveals that inheritance mutation No,405 of Sawan son of Fateh contains pedigree table showing that Fateh had two wives namely Mst. Bakhu and Mst. Jantan. Sawan (issueless) was shown as son of Fateh from his wedlock with Mst. Bakhu and a daughter Mst. Jannu, and Sohtta, as son from his wedlock with Mst. Jantan.
Column No,8 of mutation contains names of Mst. Bakhu as widow of Fateh and Sohna as son and Mst. Jannu as daughter (mother, step brother and sister of deceased Sawan) but later on their names were cut and substituted by Sohna only, withbitt any reason. Remarks column also reveals that pedigree table Shown ott the mutation has been Supported. Despite cutting names of mst.Bakhu and Others in column no.,8 the pedigree table shown on mutation remained intact and has become part of the record, however, not made part of pedigree table, as mutation was not attested in their names and only attested in the name of Sohna and thus his name was shown in pedigree table Exh.P.W.4/5. These entries of relations and pedigree table shown Ott muttion have not been questioned by the defendants. P.W.5 also supported this entry which clearly establishes the relation of plaintiff as claimed in the plaint and refutes the version made in written statement.
The order of Revenue Officer circle on this mutation reveals that it was not attested on the verification of relation by attesting witness, rather attested on the basis of another mutation bearing No,349, which is also inheritance mutation of Sawan deceased in favour of Sohna, step brother, depriving all others and that mutation too was not attested by any verification by notables, rather on the basis of another Mutation No,344, wherein, on the basis of incomplete pedigree table and on verification of one Habibullah lumberdar, it was attested in the year 1938. Now the question is whether pedigree table given on this mutation showing only two sons of Fateh is correct or that shown on Mutation No,405 showing his two sons, two widows and one daughter has not been met with by the Courts below and can be dealt with in the light of evidence available on file. P.W.5 has given the entry of names of legal heirs of Fateh in mutation No,405 and later on cutting made by adding the name of Sohna only to the exclusion of those already mentioned in column No,8. P.W.6 plaintiff deposed and reiterated his stance taken in the plaint. He added that he has not thumb impressed Mutation No,405 as marginal witness and is a fake one. P.W.7, Ellahi Bakhsh also supported the version of plaintiff in respect of relations and his entitlement in the inheritance.
Nothing adverse could be taken out of these statements, however, the appellate Court was impressed and based its findings on the deposition of plaintiff to the extent that he had no documentary proof of these relations, which is obviously pedigree table, questioned in suit and as such cannot be non-suited on this score alone. Reliance in this respect can be placed on the case of Abdul Ghafoor and others v. Kallu and others (2008 SCM R 452) wherein it was held that:-- We have heard the teamed counsel for the parties at some length and have also perused the available record. We find that the petitioners had produced P. W.1 Mohammad Yasin Khan, who was Lambardar of the village Takri Brahmin in India where late Mst. Ghogan , had been living in India and left her land in lieu of which the suit land was allotted to her. He categorically stated that Mst. Shakoori and Batu were the real daughters of late Mst. Ghogan. Similarly Yousaf Khan, P. W.2 also hailed from the same village in India who also stated that Mst. Ghogan had four daughters namely late Mst. Shakoori, Batu, Mst. Bassi and Mehmoodi. The evidence of both the witnesses was quite relevant as they belonged to the same place of late Mst. Ghogan in India, The mere fact that P. Ws. Were not sure about the names of the forefather of the parties or of Mst. Ghogan would not be sufficient to disbelieve them."
7.
On the other hand, the defendant relied on their solitary statement who deposed that Sohna and Sawan were real brothers and their mother was Mst. Jantan and Fateh had no other wife namely Mst. Bakhu or daughter Mst. Jannu. He also deposed that Sawan died during 'riwaj' which is not correct, as mutation attested in 1938 after promulgation of Shariat Act, 1935. He admitted in cross- examination that he has not produced any proof that 'riwaj'. Was in force when Sawan died. He showed his ignorance as to whether Sawan died in life time of Mst. Bakhu and voluntarily added that he was either minor or not even born at that time. He admitted that pedigree table given on Mutation No,405 has not been challenged by them till date and has also admitted that marginal witness of mutation No,405 namely Allah Bakhsh has not been produced by them.
8. The defendants being beneficiaries of Mutations Nos.405, 444 and 449 were legally bound to prove the same by producing the marginal witness besides the revenue officer and patwari halqa, who are the most important entities, as burden heavily lies on them to prove these mutations.
Reliance in this respect is placed on the case of Muhammad lqbal and another v. Mukhtar Ahmad through L.Rs, (2008 SCM R 855) wherein it was held that:- "Before entering into appreciation of evidence, we may recall that this Court on numerous occasions has categorically held that the mutation proceedings are not judicial proceedings and mutations do not at all happen to confer title. That, therefore, whenever the genuineness of any such mutation is challenged, the burden squarely lies on the parties relying upon the mutation, to prove the actual transaction. Hakim Khan. v. Nazeer Ahmad Lughmani 1992 SCMR 1832 can be referred in this behalf. This Court in a recent judgment rendered in Mohammad Akram v. Altaf Ahmad PLD 2003 SC 688 has categorically declared that mutation confers no title and once a mutation is challenged, the party relying thereon is bound to revert to the original transaction and to prove such original transaction which resulted into the entry of attestation of any such mutation."
' No effort made to this effect, with special reference to the entries of names of legal heirs in pedigree table on Mutation No,405. They do admit it as correct on one hand and refute it to the extent of pedigree table, on the other, which is against the principles of law relating to interpretation of documents and cannot be allowed to blow hot and cold in same breath. The mutation was attested in 1938, when 'riwaj' was not in force, rather Muslim Personal Law was promulgated in the year 1935 and female heirs were entitled to get their share in accordance with law. The contents of mutation No,405, admitted and taken benefit out of it by the defendants, regarding pedigree table and mala fide cutting of their names in column No,8 of mutation coupled with oral evidence produced by the plaintiff, it stands established that plaintiff had the relation with original owner Fateh through his mother and in inheritance mutations female heirs were deprived of their legal shares on the pretext that `riwaj' was in force, which is totally misconceived, as Shariat Act was in force in 1938. It is common practice that females are deprived of their share in inheritance, specially in rural areas through various devices, H which should be deprecated. The wrong entry made in record of rights after every four years in the jamabandi gives fresh cause of action to the plaintiff on every denial and suit cannot be termed as time barred. Even otherwise, rights of female cannot be denied by male members/brothers on the score of adverse possession on ouster, as succession opens immediately on the death of Muslim owner and possession of brothers could be taken as possession of sisters, unless there is an express repudiation of claim of the sisters by the brothers. Reliance can be placed on Ghulam Ali's case (PLD 1990 SC 1).
9. The plea that Mst. Bakhu and Mst. Jannu have not challenged the mutations and claimed their shares in the inheritance, in their life J time, would not debar the plaintiff from claiming his right as his predecessors have not waived their right as inheritance cannot be waived under the law. The circumstances are to be seen and taken into consideration as they differ from case to case, with special reference to pardanashini of Mst. Bakhu and Mst. Jannu and cannot be refused claim on the plea that if predecessors have not claimed in life time then the K successors would be debarred to claim their right in due share, specially when deprived the womenfolk under the garb of 'riwaj' allegedly in force at the time of attestation of mutations in dispute. The facts of every case have to be considered in the prevailing circumstances, application of relevant law to the matter, as there exists no hard and fast rule to be followed in this respect. The learned Courts below have not focused and considered the matter as an inheritance issue and non-suited the plaintiff mainly on failure of non-production of documentary proof of his relation with the predecessor, which is alien to law and thus the impugned judgments are not sustainable.
10. For the reasons mentioned above, I allow the instant petition, set aside the impugned judgments and decrees of the Courts below and decree the suit of plaintiff to the extent of his due share in the legacy of Fateh and Sawan, in accordance with law. No order as to costs.