AMIN-UD-DIN KHAN, J.---Through this revision petition petitioners have challenged the judgment & decree dated 19.05.2007 passed by the learned District Judge, Dera Ghazi Khan whereby appeal filed by the petitioners was dismissed and the judgment & decree dated 23.2.2007 passed by learned Civil Judge, Dera Ghazi Khan whereby suit for declaration filed by the respondents- plaintiffs was decreed.
2. Brief facts of the case are that on 16.5.2000 plaintiff-respondent No. 1 filed a suit for declaration that plaintiff is owner in possession of the suit property, fully described in the head-note of the plaint and defendants have absolutely no concern with the suit property. She challenged the mutation of inheritance No. 5315 attested on 17.12.1966 (which was actually sanctioned on 17.12.1967). It is pleaded that Imam Bakhsh father of the plaintiff was owner of the suit property, who died 34/35 years ago. It is further pleaded that said Imam Bakhsh was professing "Shia" faith and at the time of his death his seven daughters were entitled to inherit the immovable property as he was having no male issue and two widows were also alive at that time. It is pleaded that the property through the mutation of inheritance has been distributed in accordance with the "Sunni" faith, therefore, it has been given to seven daughters, two widows and two collaterals of the deceased. Written statement was filed, suit was contested. It was pleaded that he was professing Sunni faith. Issues were framed parties were directed to produce their evidence. Plaintiff produced her evidence and the right to produce evidence of the defendants-petitioners was closed, therefore, no evidence has been produced by them. Learned trial court decreed the suit vide judgment & decree dated 23.2.2007. Appeal was preferred, which was dismissed by the learned first appellate court vide judgment & decree dated 19.5.2007. Hence, this civil revision.
3. Learned counsel for the petitioners argues that the inheritance was distributed in accordance with the "Sunni" sect. Two widows, seven daughters and two collaterals were given share of inheritance according to the law of "Sunni" sect. Learned counsel argues that the suit was barred by time as the same has been filed after 34 years of attestation of mutation as the mutation after its attestation was incorporated in the revenue record. Argues that after 36 years of death of the propositus he was claimed to be "Shia". Plaintiff opted not to appear as her own witness. Further that only the opinion of the witnesses has come on the record whereas no evidence with regard to conduct of the deceased has been brought on record. Further argues that it is a presumption that all the Muslims living in Pakistan are presumed to be "Sunni" except proved otherwise. Argues that after 34 years the matter has been challenged and further, most of the witnesses have pressed about the funeral prayer of the propositus Imam Bakhsh, therefore, argues that the findings recorded by both the courts below are against the law and facts of the case and same are liable to be set aside.
4. On the other hand, learned counsel for the plaintiff-respondent argues that right to produce evidence of the defendants-petitioners was closed and no evidence has been produced by them, therefore, argues that when there are concurrent findings of fact recorded by both the courts below, no case for interference by this Court under Section 115 of the C.P.C. Has been made out.
Prays for dismissal of this civil revision.
5. I have heard learned counsel for the parties at length, gone through the record and findings recorded by both the courts below.
6. It is not in issue that after attestation of mutation same was incorporated in the revenue record and the widows of the deceased were also given the share of inheritance, which is evident from the revenue record in the shape of "Jama Bandi" and "Khasra Girdawri" proves the same. Exh. P6 pedigree table confirms that defendant Nos. 1 to 10 are collaterals of deceased.
7.PW-1, who claims to have led the funeral prayer of the deceased Imam Bakhs, is husband of Mst.Rasti, one of the daughters of deceased. He is an interested witness. Statement of PW-2 is not helpful for the plaintiff, who admitted that he is "Sunni" Muslim and resides one mile away from the residence of Imam Bakhsh PW-3 is also not from the family or resident of the area where Imam Bakhsh was living. He admitted that Imam Bakhslf died 34/35 years ago whereas "Imam Bargah" was established in the area of residence of the deceased 20/25 years ago. PW-4 is Attorney of the plaintiff. He showed his ignorance that mutation of inheritance of deceased was attested on 17.12.1967, not a single word has been uttered by this witness that attestation of mutation of inheritance of Imam Bakhsh was not in the knowledge of the plaintiff before filing of the suit.
8. As I have noted supra that after attestation of mutation the same was incorporated in the revenue record, which is evident from the documentary evidence produced by the plaintiff- respondent as it is also mentioned in "Khana-e-Kaifiyat" of Exh.P.2, which is "Register Haqdaran Zameen" for the year 1976-1977 that consolidation proceedings were conducted in the Mauza and mutation of "Ishtiraq" (Consolidation) No. 850 was attested and mutation of distribution of land was also attested under No. 850/1, which is mentioned in Column No. 11 of Exh.P2 and Exh.P3, which clearly show that after attestation of mutation possession of the land to the legal heirs was also transferred and they were enjoying the possession for the last 34 years at the time of filing Of the suit. Learned both the courts below failed to take into consideration the point of limitation as under section 3 of the Limitation Act, 1908 it is the duty of the court to dismiss the suit if it has been filed after the prescribed period of limitation. Limitation under the residuary Article 120 of the Limitation Act, 1908 is provided six years from the date when the right to sue accrues. In this case admittedly the right to sue accrued from the date of attestation of mutation of inheritance and plaintiff has not denied that mutation was attested on 17.12.1967 and the suit has been filed in the year 2000, which was barred by time. Light can be taken from 2011 SCM R 8 "Muhammad Islam v. Inspector- General o Police, Islamabad and others".
9. So far as argument of learned counsel for the petitioners that C after death of a person only showing that his funeral prayer was offered in accordance with any specific faith, does not show, that person was professing the said faith as after the death it was not the option of the deceased that by which faith funeral prayer is offered. Plaintiff was required to prove that deceased was professing "Shia" faith as she claimed in her suit. From the scrutiny of the evidence, it is clear that all the witnesses have given their opinion and no evidence with regard to the conduct of the deceased has been brought on the record. Even from the scrutiny of the evidence of the witnesses it is clear that it is not helpful for the plaintiff. Even statement of her attorney is not in support of the pleadings. When the pleadings have not been proved through evidence, no decree could have been passed in favour of the plaintiff. Both the courts below fell in error while recording the findings.
When plaintiff opted not to appear as her own witness without any valid reason, the presumption goes against her.
10. "Janazah" prayer is not determining factor of faith of the deceased and to determine that conduct of the deceased is relevant for determination of his faith, reliance can be placed on 2006 CLC 1076 "Mst. Latifan Bibi and others v. Muhammad Bashir and others" and with regard to presumption that all the Muslims are governed by Hanafi law unless proved contrary, light can be taken from 2005 M LD 1202 "Mst. Rashidan Bibi through Legal Heirs v. Mst. Jantay Bibi through Legal heirs and 2 others".
11. In the above circumstances, I am clear in my mind that the suit was barred by time and plaintiff- respondent miserably failed to prove the case pleaded by her, therefore, the findings recorded by both the courts below are in utter disregard of the evidence available on the file and the pleadings of the plaintiff-respondent. In this view of the matter, while allowing this civil revision, the judgments & decrees passed by both the courts below are set aside. Result would be that suit filed by the plaintiff-respondent stands dismissed.