' The land in dispute originally belonged to Shah Nawaz, who was the common ancestor of both the parties. On his death it was inherited by his son, namely, Sultan. He died about 42 years before the institution of the suit. Succession to his estate was governed by custom under which the land devolved on his widow Mst. Nuran, as life interest. After her death, three Mutations Nos.2793, 3093 and 1846 were sanctioned on 17-12-1948, 10-1-1953 and 30-9-1954, respectively, in respect of the land, on the assumption that she died after the enforcement of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948. This gave rise to a dispute between the parties. Respondents Nos. 1,2 and Muhammad Khan (deceased) who is now represented by his legal heirs, having been excluded from the inheritance, filed a suit for declaration and possession challenging these mutations on the ground that Mst. Nuran died on 15-7-1946 and under the customary law they alone alongwith respondents Nos. 14, 15 and Saifullah Khan, sons of Ramzan, a brother of Sultan (deceased) were entitled to inherit the land in question to the exclusion of the appellant and other beneficiaries under the mutations.
2. In order to substantiate their claim they heavily relied on the death entry Exh. P.11 recorded in the Death Register maintained in police Station Saddar, Mianwali, according to which Mst. Nuran wife of Sultan son of Shah Nawaz died on 15-7-1946. The death was reported to the police station on 1-8- 1946. On this point they examined Sher Khan (P.W.3) and Akbar Khan (P.W.5). Besides this, respondent No.2 also appeared in the witness box as P.W.
6. It is in the statements of P.W. 3 and P.W.6 that Mst. Nuran died 11/12 years ago whereas P.W. 5 deposed that she died 13/14 years ago and that her death took place before the creation of Pakistan. Both Akbar Khan (P.W.5) and respondent No.2 in cross-examination admitted that Janaza prayer was led by Maulvi Muhammad Hussan.
3. In rebuttal the appellants produced Maulvi Muhammad Hussan (D.W.1), who stated that Mst.
Nuran died one year after Partition and her Janaza was performed by him. Similarly, appellant No.1 who appeared as her own witness and so also the appellants' witness Jahan (D.W.2) stated that she died one year after coming into existence of Pakistan. According to appellant No.7 (D.W. 6) who was examined on 21-1-1958, she died 8 years ago. It appears that Muhammad Khan (deceased) plaintiff, on 22-8-1949 moved a petition (Exh.D.1) before the Collector, Mianwali, for review of Mutation No. 2793, wherein he asserted that Mst. Nuran died 10/11 months ago and pleaded that her succession was governed by Shariat. Haji Muhammad Zakria, Pleader, who drafted the review petition appeared as D.W.3 and deposed that the contents of Exh. D.1 were read over to Muhammad Khan (deceased), who marked his thumb-impression thereon. The appellants also examined Muhammad Khan, as D.W. 4, who admitted to have filed petition for review of the mutation, but stated that he did not remember whether or not D.W.3 was his counsel. They also brought on the record memorandum of appeal dated 8-1-1951 (Exh.D.2) filed by respondents Nos.1 and 2 before the Collector. This document was proved by them through the testimony of Mr. Baqir Hussain, Advocate (D.W.5), who acted as counsel for these respondents. It indicated that they too sought applicability of the Muslim Personal Law (Shariat) Application Act, 1948 in the matter of succession to the land owned by Sultan (deceased). In addition to the oral evidence, the appellants thus also relied on Exh. D. 1 and Ex. D.2 to refute the plaintiff's claim that Mst. Nuran died in the year 1946.
4. It may be observed that before the learned Courts below appellant No.1 had raised another alternative plea that in case Mst. Nuran was found to have died before the enforcement of the Punjab Act IX of 1948, then she as an unmarried daughter of Sultan (deceased) was entitled to the land as life estate. This contention was not unaccepted by both the learned lower Courts. As before me the learned counsel for both the parties confined their submissions to Issue No.2 which is to the effect as to whether Mst. Nuran died before the coming into force of the Shariat Act, I have dealt with this issue only. The learned trial Court was of the view that the plaintiffs were bound by their admissions contained in Exh.D.1 and Exh. D.2. It relied on the statement of Muhammad Hussan (D.W.1) to hold that Mst. Nuran died in September 1948 and discarded the death entry Exh. P.11. The learned trial Court thus dismissed the suit on 11-4-1958.
5. In appeal the learned District Judge held that the admissions made by respondents Nos.1 and 2 and Muhammad Khan deceased were incorrect on facts and, therefore, they were not bound thereby. He summoned Abdul Ghafoor, a clerk of the District Health Officer, Mianwali, with the Death Registers for the village Watta Khel for the period from 1946 to 1948 and recorded his statement.
This witness after examination of the registers stated that there was no entry therein, relating to Mst. Nuran except the one evidenced by the copy Exh.P. II. The learned District Judge held this entry as genuine, did not consider the statement of Maulvi Muhammad Hussain as trustworthy and maintained that Mst. Nuran died on 15-7-1946. Thus reversing the findings of the learned trial Court on issue No.2 the learned District Judge came to the conclusion that custom would be the rule of decision. Accordingly by his judgment and decree dated 1-7-1963 he accepted the respondents' appeal and decreed the suit in their favour.
6. The learned counsel for the appellants argued that Muhammad Khan (deceased) and respondents Nos. 1 and 2 were bound by the admissions made by them in the documents Exh.D.1 and Exh.D.2. When it was pointed out to him that the plaintiffs were not confronted with these admissions, as required by section 145 of the Evidence Act, the learned counsel came forth with the plea that the necessity to draw their attention to their previous statements would only arise, if their credit was sought to be impeached. He submitted that an admission is a substantive piece of evidence and it is not the requirement of section 21 of the Evidence Act that the maker of such admission should be confronted with it. It was contended that the documents Exh. D.1 and D.2. Were proved in accordance with law and the admissions embodied therein should have been presumed to be correct. The findings of the learned District Judge in holding the respondents-plaintiffs not bound by these admissions, were thus vehementy assailed by him. In support of his argument that section 145 of the Evidence Act did not apply to this case the learned counsel relied on Rahim Bakhsh v. Nathu Bibi and others PLD 1951 Pesh. 61, Ghulam Nabi Corporation Ltd. v. Khan Iftikhar Hussain Khan PLD 1962 Lah. 370 and H. Rashidud Din v. Muhammad Habib and others PLD 1976 Kar.
142.
7. In Rahim Baksh's case, it has been held that an admission is a substantive piece of evidence and is relevant under section 21 of the Evidence Act which does not require its confrontation with the maker thereof and that it is only when the previous deposition of a person is sought to be used to impeach his credit, that section 145 of the Evidence Act, would apply. This judgment has been followed by a learned Single Judge in H. Rashidud Din v. Muhammad Habib. Similar view was taken by a Division Bench in Ghulam Nabi Corporation Ltd v. Khan Iftikhar Hussain Khan. Both the rulings reported as PLD 1951 Pesh. 61 and PLD 1962 Lah. 370 were considered by the Supreme Court in Sikandar Hayat v. Fazal Karim PLD 1971 SC 730 but the view taken therein was not approved and it was laid down that the law to the contrary enunciated in Firm Malik Des Raj Fakir Chand v. Firm Piara Lal Aya Ram and others AIR 1946 Lah. 65 as quoted below, is the correct law: - "Where a party has gone into the witness-box of the point in issue and in the witness-box has made a statement inconsistent with the admission or the statement made in the witness-box involves the denial of the previous admission, or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross-examination was drawn to that statement and he was confronted with the specific portions of that statement which were sought to be used as admissions. Without complying with the procedure laid down in section 145, the admission contained in the previous statement cannot be used as legal evidence against that party."
' Sikandar Hayat v. Fazal Karim has been cited in the Karachi case but the attention of the learned Single Judge was not presumably drawn to the view approved by their Lordships of the Supreme Court. I am unable to agree with the appellant's learned counsel that it was not necessary to put these admissions to the plaintiffs in cross-examination and to draw their attention to the contents of Exh.D.1 and Exh. D.2. These documents could be used against them, only if an opportunity was provided to them to offer their explanation. No such opportunity having been given to them, the appellants cannot make use of these documents against them.
8. It was next argued that the entry in the death register and copy whereof is Exh. P.11 is a forged entry. His submission was that this entry related to one 'Nura' but by interpolation the word 'Nura' was changed into 'Nuran' and other columns in the register filled in. I have examined the original register with the assistance of the learned counsel for the parties and I am unable to agree with the appellants' learned counsel. The entry does not give any indication of interpolation or spuriousness. The identity of Mst. Nuran whose death was recorded under this entry is fully proved.
The death register has been maintained by the Police Station Mianwali Saddar in accordance with law and in the discharge of their official duties. The entries made therein are not only relevant under section 35 of the Evidence Act, but under section 81 of the Evidence Act, a presumption of genuineness attaches to this document. The learned District Judge thus rightly relied upon Exh. P.11.
The reasons which influenced the judgment of the learned Civil Judge in not placing reliance on this entry are erroneous. It was not necessary for the respondents to have proved as to who got this entry made and that the report was correctly recorded.
9. The appellants' learned counsel then referred to the statement of Muhammad Khan (D.W.4) wherein he deposed that when Mst. Nuran died his brothers Zaman and Ramzan had already died.
He then sought to make use of an entry in Register No.43, which was sent to this Court alongwith the register containing the entry Exh. P.11 to show that Muhammad Ramzan Khan died in the year 1948. From these premises, the learned counsel implored deduction of inference that Mst. Nuran did not die before 1948 and that the entry Exh.P.11 was not correct. This argument merits rejection for the simple reason that the register in question or for that matter the entry made therein relating to Muhammad Ramzan Khan was neither relied upon by the appellants nor does this document form part of the file of the case. The appellants cannot make use of this document, as evidence at this stage.
10. It was finally argued that the learned District Judge wrongly disbelieved the testimony of Moulvi Muhammad Hussain. I have carefully considered the reasoning given by the learned two Courts- below for weighing the deposition of this witness and I am inclined to agree with the learned District Judge. In the presence of the entry Exh.P.11 it is not possible to accept his statement.
11. For the foregoing reasons, the judgment and decree under appeal are upheld and this appeal having been found without merit is hereby dismissed, leaving the parties to bear their own costs.