The suit for possession filed by Sabir Hussain and Muhammad Arif appellants was dismissed by the learned Civil Judge vide judgment and decree dated 16-11-1968, which was maintained by the learned appellate Court vide judgment dated 8-1-1970. The same have been assailed in this second appeal.
2. The following pedigree-table, which has been constructed from the pleadings and the evidence of the parties and is not disputed, would help to understand the matter in dispute:- Hassa Azeemullah Abbas Khan Ayub Khan Mohd. Arif Sabir Hussain Mst Ali Begum Mst. Dewan Bibi Plaintiff No. 2 Plaintiff No. 1(daughter) (widow)
Def. No. 3 Def. No. l Mohd! Riaz Mst. Ali Begum Afrasiab Def. No. 3 wife Def. No. 2 (son)Def. No. 3(son)
Abbas Khan was the last male holder/owner of the suit land. He expired on 1--2-1920 (Death Certificate Exh.D/5) leaving behind his widow Mst. Dewan Bi and daughter Mst. Ali Begum respondent. On his death his widow Mst. Dewan Bibi succeeded to his estate as limited owner under custom. She made a gift of the land to her daughter Mst. Ali Begum's sons Afrasiab and Muhammad Riaz respondents on 20-10-1951. This gift was challenged in a usual customary suit by Sabir Hussain and Muhammad Arif appellants on 16-2-1953 which was decreed on 4-2-1954.
3. Mst.Dewan Bi died on 6-1-1965. The present suit was filed by the appellants on 31-7-1965 on the assertion that they were entitled to succeed to the estate left by Abbas Khan to the extent of 3/8th share. The only point of contest raised by Mst. Ali Begum and her sons (respondents 1 to~3) was that Abbas Khan was a Shia and so Mst.Ali Begum was the sole heir. The parties went to trial on the material issue "whether Abbas Khan was a Shia by faith". This issue was answered by the learned Civil Judge in favour of the respondents and the finding has been affirmed by the learned District Judge in appeal.
4. At the very outset the learned counsel for the respondents has contended with reference to Abdul Majid and others v. Khalil Ahmad PLD 1955 FC 38 that the concurrent finding of fact cannot be called in question in second appeal even if the same was erroneous and however gross and inexcusable the error might be. His Lordship in this very report also observed that even a fallacious method of appraising evidence cannot be a good ground for upsetting a finding of fact based on evidence unless it amounts to a material mistaken assumption. The argument can be met having regard to the dictum laid down in Bibi Jan v. Habib Khan PLD 1975 SC 295. Their Lordships of the Supreme Court in this report concluded that a finding of fact based upon misreading or misrepresentation of evidence is not sacrosanct. The observation: "It may thus be safely concluded that if there be no proper evidence in support of a finding by the first Court of appeal, or the evidence is misread or misrepresented, the finding, though one of fact, is vitiated and a Court of second appeal is entitled to review it" made in Fatima v. Khuda Bux and others PLD 1959 Lahore 826 was quoted with approval.. Thus a finding of fact iif is the result of misreading or misrepresentation of evidnce or is based upon a mistaken assumption, is not sacrosanct and can be looked into in second appeal.
5. Applying the above test the conclusion is inescapable that the finding recorded on the above issue by the two Courts below is the result of misreading of evidence and a material irregularity has been committed by ignoring altogether (by not taking notice of the legal presumption) that in Pakistan the initial presumption is that every Muslim is Sunni unless otherwise proved. Nur Ali and another v. Malka Sultana and another PLD 1961 Lahore 431 is in point. It is clear from the judgment of the learned Civil Judge that he did not refer to the statements of the witnesses produced by the parties in detail, and observing that the defendants had examined as many as seven witnesses in support of their version while on the other hand the plaintiffs have examined five out of which only two have come forward to prove the assertions in the plaint, concluded that the evidence of the defendants was preponderant. The learned District Judge, though discussed the evidence, as well, like the learned Civil Judge, failed to take notice of the initial presumption that Abbas Khan was to be considered Sunni unless otherwise proved. Not only this, but there is an admission on behalf of Afrasiab and Muhammad Riaz respondents to the effect that Abbas Khan was a Sunni and thus the plaintiffs were entitled to 1/4th share of his estate/suit land. On 11-6-1968 when the case was at the stage of announcement of the final judgment, Sabir Hussain appellant along with his counsel, Afrasiab responder along with his counsel Qazi Abdul Qaddus who (Qazi Abdul Qaddus) also represented respondents 1 to 3 and Syed Liaqat Hussain, Advocate, for defendants 4, 6, and 7 were present and a compromise was recorded to the effect that Abbas Khan be declared Sunni about which Sabir Hussain had made a statement on oath on the Holy Quran with the result that the suit was decreed to the extent of 1/4th share in favour of the plaintiffs/appellants. The said decree was challenged by Mst. Ali Begum and as there was no power of Attorney on her behalf in favour of Qazi Abdul Qaddus, Advocate, the same was set aside and the case remanded for fresh decision. It was observed by the learned District Judge in the remand judgment that she was not bound by the compromise statement subscribed to by Oazi Abdul Qaddus who was not his counsel, but the others were bound by the compromise. Thus the initial presumption that Abbas Khan was a Sunni was in favour of the plaintiffs/appellants and this was not considered or even mentioned by the two Courts below in their judgments: This presumption was further supported by the admission made by the other defendants-respondents except Mst. Ali Begum who, of course, has to stand on her own legs. In view of these omissions the finding of fact recorded by the two Courts below can be well looked into in second appeal.
6. Admittedly Abbas Khan was and the present parties to the suit/appeal are the residents of village Kabail. Not a single witness was produced from the said village by the respondents. Mir Gul Hussain Kazmi (D.W.1) is from Thakra Mohra which is two/two and a half miles from village Kabail.
His claim is that he was present in the Janaza prayer of Abbas Khan which was led by his father Said Jamal Shah. Muhammad Akbar, Feroze Khan, Ahmad Khan and Nawab (D.Ws. 2 to 5) hail from the adjoining village Bagwal while Muhammad Alam (D.W.6) is from village Kohli, which is one and a half mile from the village of the parties. All the D.Ws have corroborated Mst. Ali Begum respondent (D.W.7) that Abbas Khan was a Shia and his funeral prayer was led in Shia fashion by Said Jamal. In rebuttal, the plaintiffs produced Subedar Major Mubaraz Khan and Ali Shan (P.Ws.3 and 4) who deposed that Abbas Khan was a Sunni, and the Janaza prayer was led by Mauhz Alam of the village in Sunni way. Ali Shan P.W. Is a resident of village Kubail, i.e. The village to which the parties belong. Hence he can be the best witness as to in what way the Janaza prayer of Abbas Khan was led. It is clear from the statements of witnesses produced by both the parties that there was not a single family in village Kubail professing Shia faith, i.e. All were Sunnis. Gul Hussain Kazmi (D.W.1) gave his age as 65 years which means that at the time of the death of Abbas Khan in 1920 he must be in his teens, so it was not expected that he would have joined the Janaza prayer of Abbas Khan at a distance 'of two or two and a half miles when he was not related to the family. He admitted that his wife was abducted by Mukhtar Shah, but he showed ignorance that said Mukhtar Shah was living with the plaintiffs. Muhammad Akbar and Feroze Khan (D.Ws. 2 and 3) are close relatives. Muhammad Akbar admitted that there was no mosque for Shias in village Kubail and all other people were Sunnis; there was even no Imam Bara in village Kubail. According to him, Abbas Khan was a Lambardar and a well-to-do person but he never held a Majlis in the village. Feroze Khan D.W. Stated that he appeared as a witness along with his relative Akbar in a criminal case and he had accompanied the defendants to the Court. He also admitted that the whole of village Kubail with the sole exception of Abbas Khan was professing Sunnis faith Ahmad Khan (D.W.4) deposed about the Shia faith of Abbas Khan. He asserted that the maternal parents of Abbas Khan were of Chak Bagwal but he himself being of that very village could not name the maternal- grandfather of Abbas Khan, nor could he say whether he had any maternal-aunt or uncle. Thus he seems to be a cooked up witness. Nawab (D.W.5) showed ignorance as to from which place the maternal parents of Abbas Khan hailed but again contradicted himself by saying that they were of Chak Bagwal. He, however, could not name his maternal grand-father or his maternal-uncle.
Muhammad Alam (D.W.6) deposed that he did not know the father of Abbas Khan or where his maternal-parents hailed from. He too does not seem to know Abbas Khan or his family, so was not expected to join the Janaza prayer from a different village. Subedar Major Mubaraz Khan (P.W.3) deposed that Abbas Khan was S unni while he himself was a Shia. According to him, the Janaza prayer was led by Muhammad Alam in a Sunni fashion and there was not a single person of Shia faith in village Kubail. His village is at a distance of one mile from village Kubail. In cross- examination he stated that the mother of Abbas Khan was from village Kubail and so was his wife.
He had no relationship in village Bagwal. Similar is the statement of Ali Shan (P.W.4) who also hails from village Kubail. He, however, is a close relative of the appellants. The above analysis of the oral evidence of the parties is not sufficient to say that Abbas Khan was a Shia, being a sole exception in the village. It is also to be noted that the D.Ws. After their examination-in-chief were allowed to be cross-- examined by the appellants and thereafter cross-examination was allowed to the respondents other than respondents 1 to 3, who, as is clear from the cross--examination, were siding with the contesting respondents (respondents Nos. I to 3). This procedure adopted by the learned trial Judge was clearly injurious to the interests of the appellants. If the other respondents were siding with respondents 1 to 3, then they should have been allowed to cross-examine the D.Ws first and at the end the appellants should have been granted the opportunity of cross-- examination. The procedure also seems to have prejudiced the appellants' case.
7. For all the above reasons, the finding recorded by the two Courts below cannot be maintained.
The same is reversed.
8. Before parting with the judgment notice of another argument raised by the learned counsel for the appellants may be taken. He drew the attention of the Court to the plaint (Exh.P.l) and the written statement filed by the respondents (Exh.P.2) in the previous suit under custom to contend that the plea that Abbas Khan was a Shia was available to the defendants-respondents which they had not taken (in the previous suit) and so the same shall be deemed to have been taken and decided against them on the principle of res judicata. The argument must be rejected for the simple reason that the previous suit was under custom. Mst. Dewan Bi was still alive and the appellants had no right under the law then I prevalent to claim inheritance from Abbas Khan. The cause of action available in the present case/suit was not available to them in the previous suit. In other words, the parties in the previous suit were litigating on a cause of action/title entirely different from the one now in dispute in present case.
9. As observed above, Mst. Dewan Bi died on 6-1-1965. Thus, presumptively Abbas Khan will be considered to have died on the said date and his estate would open to inheritance. Mst. Dewan Bi as widow would get 1/6th, while 1/2 would be inherited by her daughter Mst. Ali Begum respondent as sharers under Muslim Law. The residue would go to the appellants as brother's sons of Abbas Khan as residuaries. This would come to more than 1/4th, but in view of the proceedings dated 11- 6-1968 and the decree granted on the basis of the same which was kept binding on the parties except Mst. Ali Begum by the then learned District Judge in the appeal filed by Mst. Ali Begum, the appellants cannot claim more than 1/4th.
10. Resultantly the appeal succeeds and the decrees of the two Courts below dismissing the suit of the appellants are set aside. The appellants are granted a decree for possession of 1/4th share. Of the suit land. The parties are, however, left to bear their own costs.