AMIN-UD-DIN KHAN, J.---Through this second appeal the appellants have challenged the judgment and decree dated 19.04.2011 passed by the learned Additional District Judge, Jhang whereby the appeal filed by the appellants was dismissed and the judgment and decree dated 05.06.1995 passed by the learned Civil Judge 1st Class, Jhang whereby the suit for declaration filed by the plaintiffs/respondents was decreed.
2. The brief facts are that the plaintiffs/respondents on 27.02.1992 filed a suit for declaration to challenge the attestation of mutation No,695 attested on 24.07.1990 of inheritance of Gull Muhammad son of Walia pleading that the same has been attested presuming the deceased professing Sheia Faith and therefore 1/8 share of property was given to his widow and 7/8 share to his two daughters as he was having no male issue. The plaintiffs being collaterals of deceased claimed that he was Sunny by Faith and mutation is wrong.
3. The written statement was filed and suit was contested. Learned trial court on 18.04.1992 framed the following issues:--
1. Whether the suit is collusive with the defendant No,4? OPD
2. Whether the plaintiffs have no cause of action and locus-standi to file this suit? OPD
3. Whether the plaintiffs are estopped by their own act and conduct to file this suit? OPD
4. Whether the defendants are entitled to special costs under section 35-A of C.P.C.? OPD
5. Whether this court lacks jurisdiction to try this suit? OPD
6. Whether this suit is bad for non joinder of necessary parties to the suit? OPD
7. Whether this suit is not properly valued for the purposes of court fee? OPD
8. Whether the late Gul Muhammad son of Wallia was Sunni Muslim by faith, if so, whether the Mutation No,695 dated 24.7.90 is void, ineffective and liable to cancellation? OPP
9. Relief.
Learned trial court invited the parties to produce their evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the completion of trial vide judgment and decree dated 05.06.1995 suit was decreed by the learned trial court. In the first round of litigation the appeal preferred by the present appellants was dismissed on 14.03.1998, where against R.S.A.No,19 of 1998 was filed, which was accepted by this Court on 03.02.2011 and matter was remanded to the learned first appellate court with a direction to decide the application filed under Order XLI, Rule 27 of the C.P.C. within one month and thereafter decide the appeal. Learned first appellate court accepted the application for permission to produce additional evidence filed by the appellants/defendants but dismissed the appeal vide judgment and decree dated 19.04.2011. Hence, this second appeal before this Court.
4. Learned counsel for the appellants/defendants has read the complete oral evidence led by the parties and has formulated his points that the oral evidence of plaintiffs/respondents is contrary one. Further that the oral evidence against the documentary evidence cannot be given more weight. Further that the statements of witnesses of plaintiffs to the extent of partial denial of Exh.P-1 is not tenable under the law. The Chowkidar who got the death entry of Gull Muhammad deceased entered was not produced. The plaintiffs have not proved the pedigree table in accordance with Article 64 of the Qanun-e-Shahadat Order, 1984.
5. On the other hand, learned counsel for the respondents/plaintiffs argues that there are concurrent findings of fact recorded by two courts below and the appellants/defendants failed to make out a case in the light of Section 100 of the C.P.C.. Argues that the deceased passed away on 08.11.1987, Exh.P-3 his death entry was got entered by Khalil Ahmad Chowkidar on 30.11.1987. The mutation was entered by the Patwari on 01.05.1990 and it was attested on 24.07.1990. The suit was filed within the period of limitation i,e, on 27.02.1992. States that all the witnesses produced by the plaintiffs/respondents are of the same locality which confirms that all the residents of area profess Sunni Faith, whereas none of the witnesses produced by the defendants is resident of village, even none of the contesting defendants appeared in the witness box. They preferred to produce their attorney who too is the resident of other village. States that the fact, all the family of deceased was professing Sunni Faith as the plaintiffs are collaterals, the contesting defendants were bound to plead and prove that Gull Muhammad converted his Faith they were bound under the law to plead and prove this fact with full detail but same is missing. Further that when all the legal heirs in accordance with Sunni sect have been mentioned in the pedigree table prepared on the part of mutation, which shows that at the time of entry of mutation there was no question of deceased being Sheia, subsequently with the connivance of contesting defendants the issue of Sheia Faith was introduced and mutation was wrongly attested. Further argues that all the witnesses whose signatures are upon the mutation as Lumberdar and Pattidar have stated that they attested the only pedigree table and they never stated that deceased was professing Sheia Faith. Prays for dismissal of the instant appeal.
6. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance as well as the concurrent findings recorded by two courts below.
7. In accordance with the prevailing law upon the subject declared by the august Supreme Court of Pakistan which start from the judgment reported as "Pathana v. Mst. Wasai and another" (PLD 1965 Supreme Court 134) whereby it has been declared that: "In the IndoPak Sub-continent there is the initial presumption that a Muslim is governed by Hanafi Law, unless the contrary is established by good evidence (vide Mulla's Muhammadan Law, Section 28)". I have noticed that one of the plaintiffs as well as the witnesses produced by the plaintiffs stated that not only the deceased was professing Sunni Faith but also the family of deceased profess Sunni Faith, therefore, the question of conversion of faith by the deceased arise as argued by the learned counsel for the respondents/plaintiffs that neither the defendants/appellants have claimed conversion of deceased from Sunni sect to Sheia sect nor there is any evidence to this effect. In these circumstances, I am unable to disagree with the concurrent findings recorded by two courts below holding that the deceased was professing Sunni sect. Reliance can be placed upon "Muhammad Bashir and others v. Mst. Latifa Bibi through L.Rs," (2010 SCMR 15), "Haji Khuda Bakhsh v. Muhammad Saleem Akbar Shah and other. (1999 CLC 1608) and "Allah Bakhsh and others v. Mst. Bhagan" (1994 CLC 1942).
8. So far as the objection raised by the learned counsel for the appellants that Exh.P-3 was not proved by producing Khalil Ahmad Chowkidar who got the entries entered. I have noticed that Exh.P-3 is certified copy from the Register of deaths, which shows the death entry of Gull Muhammad deceased son of Kalia Sunni Muslim resident of Chak No,256/J Union Council No,22 Chak No,250 Tehsil and District Jhang. No objection was raised at the time of admission of this document in evidence nor against this entry in death register the defendants/appellants claimed any other entry or proved Exh.P-3 to be a wrong document. Therefore, the objection raised by the learned counsel for the appellants qua non-admissibility of this document is not tenable. The witnesses of contesting defendants are residents of other area. None of them is the resident of Chak No,256/J.B where the deceased was residing. The case pleaded as well as evidence produced by the plaintiffs that Lumberdar and the witnesses stated that they have attested pedigree table prepared by the Patwari as noted supra that mutation was entered on 01.05.1990 and was attested after a period of near about 1-3/4 months of entry of mutation and the argument advanced by the learned counsel for the respondents/plaintiffs is near to logic that if the deceased was professing Sheia Faith and his legal heirs were widow and two daughters, then there was no need to prepare the complete pedigree table showing the collaterals of the deceased. When the complete pedigree table was prepared, meaning thereby that at the time of entry of mutation there was no dispute about the sect of deceased as Sunni Muslim. This fact is further supported by the entering note of Patwari which does not show that the deceased was a Sheia Muslim. More so, the defendants have not claimed any other person in the Chak to be professing Sheia Faith as no witness from the Chak was produced. When the contesting defendants opted not to appear as their own witnesses and produced their attorney without any justifiable reasons, then a presumption can be taken against them in the light of Section 114(g) of the Evidence Act, 1872/ Article 129 Illustration (g) of Qanun-e-Shahadat Order, 1984. In this regard, reliance can be placed upon the judgments reported as "Fazal Dad and others v. Jehandad and others" (1991 CLC 1783), "Mst. Surayia Begum and another v. Sardar Saeed Ullah through L.Rs," (2006 CLC 994) and "Mst.
Sardar Noor v. All Haider and another" (2009 CLC 400).
9. In the circumstances of the case, the defendants were required to prove the conversion of deceased Gull Muhammad from Sunni Faith to Sheia Faith in the light of "Mst. Daulan v.
Muhammad Hayat" (2002 B YLR 3247). Even in case in hand the plaintiffs fully proved, rather it is admitted position that Hafiz Muhammad Jamal PW-1 who was a Sunni Imam had led the funeral prayer of deceased Gull Muhammad.
10. Against the concurrent findings recorded by two forums below on the basis of evidence available on the file as well as law, second appeal is not maintainable. In this context, light can be taken from the judgments reported as "Naseer Ahmed Siddique through Legal Heirs v. Aftab Alam and another" (PLD 2011 Supreme Court 323), "Bashir Ahmed v. Mst. Taja Begum and others" (PLD 2010 Supreme Court 906) and "Amjad Sharif Qazi and others v. Salim Ullah Faridi and others" (PLD 2006 Supreme Court 777).
11. Even the receipt was not got admitted for payment of contribution to Sheia Anjuman. Therefore, in the light of judgment of august Supreme Court of Pakistan reported as "Ghulam Shabbir and others v. Mst. Bakhat Khatoon and others" (2009 SCM R 644) until and unless counterfoils of receipts are produced, simple receipts cannot be taken into consideration.
12. In view of above discussion, learned counsel for the appellants has not been able to point out any illegality or material irregularity in the concurrent findings recorded by two courts below as well as misreading or non-reading of evidence available on the file. Therefore, no case for interference by this Court while exercising jurisdiction under section 100 of the C.P.C. is made out. Consequently, the instant regular second appeal having no force stands dismissed with costs throughout.