' This is a plaintiffs' revision under section 115, C.P.C. Seeking modification of the judgment and decree of the Additional District Judge, Gujranwala dated 1-12-1992 affirming the judgment and decree of the trial Court dated 19-2-1992.
2. The facts necessary for the disposal of this petition are that land measuring 1497 Kanals and 2 Marlas situate in village Raja Tehsil and District, Gujranwala was originally owned by Nawab who died issueless on 10-4-1917. He was survived by Sardar, his paternal uncle's son and his widow, Mst.
Rabia Bibi, who succeeded to the land as a limited owner under the customary law prevalent in the Province of Punjab. It appears that Mst. Rabia Bibi, in the first instance mortgaged land in favour of Qasim and later on gifted it to respondents Nos. 1 and 2. The petitioners challenged these alienations by filing two suits praying that it be declared that the same would not be effective against the rights of the reversionaries of Nawab. These suits were decreed on 6-10-1954 and 5-3- 1955 respectively. On the promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the life estate held by Mst. Rabia Bibi stood terminated. Consequently on 19-2-1974, the petitioners filed the present suit claiming possession of 3/4th share in the land in dispute as heirs of Nawab, the lawfull owner.
3. In the written statement filed by the respondents the claim of the petitioners was disputed.
Certain preliminary objections including that of limitation were also raised. The learned trial Court framed the following issues on which the parties produced their-evidence:--
(1) 'Whether the suit is within time? OPP
(2) Whether the plaintiffs are estopped to file the present suit? OPD
(3) Whether the description of the suit land is not correct and schedule is not a part of the plaint? If so, its effect? OPD
(4) Whether the plaintiffs have no locus standi to file the present suit? OPD
(5) Whether the suit is barred by the principle of res judicata? OPD
(6) Whether the suit is not maintainable in its present form? OPD
(7) Whether the valuation of the suit for purposes of court-fee and jurisdiction is correct? If not what is the correct valuation? OPP
(8) Whether the defendants have brought about improvements in the land in dispute? If so, how much money has been spent by them and for what effect? OPD
(9) Whether the mortgage and gift of the suit land in favour of defendant No, 1 and defendants Nos.
2 and 3 respectively is illegal and void as against the rights of the plaintiffs? OPP
(10) Whether the plaintiffs are entitled to possession of the suit land? OPP
(11) Relief.
4. On 15-7-1978, the learned trial Court held under Issue No, 1 that the suit of the petitioners was barred by time. Aggrieved the petitioners went in appeal which was dismissed by the learned District Judge on 18-12-1978. The petitioners came to this Court by filing Civil Revision No, 189-D of 1979 which was accepted by this Court on 1-11-1989 and it was held that the suit filed by the petitioners was within time. As no decision was rendered by the Courts below on the remaining issues, the case was remanded for decision afresh on the remaining issues on merits in accordance with law. The judgment of this Court was upheld by the Supreme Court of Pakistan.
5. In the post remand proceedings, the learned trial Court on 19-2-1992 decided all the issues in favour of the petitioners but under issue No, 10, it was held that the petitioners were entitled to 3/8th share and not to 3/4th share in the land in dispute.
6. Feeling aggrieved, the petitioners went in appeal seeking modification of the decree. An application under Order 41, rule 27 of the C.P.C. For producing additional evidence was also filed by the petitioners.
7. It may also be mentioned that the decree of the trial Court was also challenged by respondents who filed a separate appeal.
8. Both these appeals were heard by an Additional District Judge at Gujranwala who dismissed the same on 1-12-1992. The application for additional evidence was also rejected.
9. The petitioners/plaintiffs have now come to this Court by filing this revision praying that the decree be modified and the suit be decreed to the extent of 3/4th share and not 3/8th share as has been done by the Courts below.
10. The only question which falls for determination in the present case is as to whether the petitioners as heirs of Nawab are entitled to 3/4th share as claimed by them or to 3/8th share as has been found by the Courts below.
11. There is no dispute and it is a common ground between the parties that Nawab had two brothers namely Sardar, who was predecessor of the petitioners, and Sahibzada the predecessor of the respondents. According to the case of the petitioners, only Sardar, their predecessor, was alive at the time of death of Nawab while Sahibzada, the predecessor of respondents had died before Nawab and as such Sahibzada or his legal heirs could not succeed to the estate of Nawab.
The learned trial Court, however, found that both Sardar and Sahibzada had died before Nawab and as such legal heirs of both the brothers namely Sardar and Sahibzada were entitled to equally share the estate of Nawab deceased.
12. Mian Nisar Ahmad, learned counsel for the petitioners has maintained that it stands proved on the record that out of two brothers of Nawab, only Sardar was alive at the time of death of Nawab and the other brother Sahibzada had predeceased him. In this respect, learned counsel vehemently argued that the findings of the Additional District Judge are self-contradictory in nature inasmuch as he having himself found that Sardar died on 6-11-1918 after the death of Nawab who died on 10-4-1917 on no reasonable hypothesis could the petitioners be deprived of their due share. The learned counsel pointed out that both, the Additional District Judge as also the trial Court have excluded from consideration copy of the death register (Exh. P-8) illegally and on wholly untenable premises. He further submitted that the findings recorded by the Courts below suffer from misreading of record and failure to consider material evidence.
13. Kh. Muhammad Habib Ullah, learned counsel for the respondents, however, supported the impugned judgments and decrees, and also objected that this Court cannot in the exercise of its revisional jurisdiction appraise evidence. The learned counsel pointed out that it was found as a fact in a previous suit, decided on 6-10-1954 (a copy of which had been produced as Exh. D-1), that both Sahibzada and Sardar had predeceased Nawab, and that finding operated as res judicata and was binding on the parties. It was also argued that there was no evidence to show that Sahibzada had died before Nawab.
14. Alongwith this petition, the petitioners had also applied under Order 41; rule 27, C.P.C. For permission to produce additional evidence. When the case came up for hearing on 30-3-1993, it was noted that the Courts below have ruled out, certified copy of death register (Exh. P-8) out of consideration illegally by observing that it could not be read in evidence as it did not bear the signatures of the District Health Officer. The production of the original register of death containing the relevant entries was, therefore, considered necessary. The original record of the suit titled Allah Bakhsh v. Mst. Rabia Bibi, in which the judgment (copy of which has been produced in the present suit as Exh. D-1) was also called for clarification of certain issues: This Court also came to the conclusion that the recording of additional evidence was essential in order to enable it to pronounce judgment and to do substantial justice between the parties. The application under Order 41, rule 27, C.P.C. Was accordingly allowed by a detailed order on 30th March, 1994.
15. The original file of the suit referred to above as also the register of death have since been received in this Court. On 13-6-1994, learned counsel for the petitioners tendered certified copies of the Revenue Record, Exh. P-18 to Exh. P-23 as additional evidence. These documents were exhibited subject to the objection of the respondents' learned counsel that these documents were not relevant. The learned counsel for the respondents in his statement recorded on the same day relied upon the record of civil suit titled Allah Bakhsh etc. v. Mst. Rabia Bibi and did not produce any other evidence.
16. It is a common ground between the parties that Nawab died on 10-4-1917. Similarly it is not disputed that Sahibzada, predecessor of the respondents had died on 18-12-1913 i,e, before Nawab.
The only dispute between the parties is as to when Sardar died. It is the case of the petitioners that death of Sardar took place on 6-11-1918 i,e, after Nawab while according to the respondents Sardar has also_predeceased Nawab.
17. While holding that both Sardar and Sahibzada had died before Nawab, the learned trial Court observed:- "I have carefully analysed the evidence adduced by the parties. Exh. P-8 death certificate is not signed by D.H.O. The alleged issuing authority, the same, therefore, cannot be relied upon. On the other hand, Exh. D-1 reveals that both Sardar and Sahibzada had died before death of Nawab deceased. Plaintiffs and respondents therefore, will be inheriting the above said 3/4 of the suit land in equal shares i,e, 3/8 to plaintiffs and 3/8 to the defendants. The plaintiffs are, therefore, entitled to 3/8 of the suit land."
18. On appeal the learned Additional District Judge observed that:-- "After going through the documentary evidence as placed on record, it is evident that Sardar died on 6-11-1918 after the death of Nawab who died on 10-4-1917, therefore, the entitlement of the plaintiffs as claimed is duly proved on record without any rebuttal of the same. Even in order to controvert the evidence brought on record by the plaintiffs, the defendants have produced only Exh. D-1 and none of the defendants have come to the witness-box to controvert the documentary evidence as produced by the plaintiffs before the trial Court. Whereas otherwise the finding as recorded by the trial Court discarding Exh. P1 is based upon proper appreciation of law of evidence and the same as such cannot be read in evidence being unauthorised documents. The net result is that findings of the trial Court over issue No, 10 are accordingly upheld to be correct which are properly based upon the documentary evidence. Which has controverted the documents as produced by the plaintiffs otherwise through Exh. Dl."
19. It is interesting to notice that the Additional District Judge while dismissing the appeal of the petitioners in para. 11 of the judgment reproduced above he himself observed that "after going through the documentary evidence as placed on record, it is evident that Sardar died on 6-11-1918 after the death of Nawab who died on 10-4-1917". I am unable to understand as to how after having recorded this finding, could the Additional District Judge uphold the judgment of the trial Court in which it had been found that Sardar had died after Nawab. As a consequence of this finding of the Additional District Judge the appeal of the petitioners should have been accepted rather than being dismissed and the decree of the trial Court should have been modified by awarding 3/4th share to the petitioners in the estate of Nawab instead of 3/8th share.
20. The trial Court had refused to rely upon copy of the death certificate (Exh. P-8), which shows the date of death of Sardar as 16-11-1918, on the ground that the certified copy of the death certificate was not signed by District Health Officer himself. The Additional District Judge unfortunately gave no independent reason for excluding this document. Exh. P-8 purports to be a ( edified copy of the public record and was as such per se admissible under Article 90 of the Qanun-e-Shahadat, 1984.
Furthermore, at the time when the document was tendered in evidence and exhibited, no such objection was raised by the respondents nor was its genuineness disputed. The Courts below could not have ruled out of consideration the document by giving effect to this belated plea. (See Gulzar Hussain v. Abdur Rehman and another (1985 SCMR 301).
21. Be that as it may, this objection pales into insignificance inasmuch as the original register containing the death entry was summoned by this Court which has been perused with the assistance of the learned counsel for the petitioners. The register on the face of it appears to have been duly maintained in the regular course of business and contains death entry of Sardar at Serial No, 2916 which mentions the date of his death as 16-11-1918.
22. There cannot be any doubt that the entries in the register of death are relevant under Article 49 of the Qanun-e-Shahadat, 1984 which reads as under:-- "49. Relevancy of entry in public record made in performance of duty.---Any entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact."
22-A. In Mst. Bhirawan and 3 others v. Ahmad Bakhsh and others (PLD 1955 Lah. 187) it was observed by B.Z. Kaikaus, J. (as he then was) that the copy of the register of deaths maintained by the District Health Officer even if such record be a duplicate copy of the register is a relevant proof of the date of death of such a person as the register is maintained by a public servant in the discharge of his official duty.
23. While commenting on section 35 of the Evidence Act, 1872 which was in pari materia with Article 49, M. Monir in his famous commentaries on 'Law of Evidence' at page 516 of Volume I (Pakistani Edition) has stated "that entries in the register of births and deaths are prima facie evidence of what is stated in them." It was held in Rangappa Nayakar v. Rangaswami Nayakar and others (AIR 1925 Madras 1005) that a death register which is a public document, in the ordinary circumstances must be accepted as almost conclusive.
24. At this stage notice may be taken to the objection of the learned counsel for the respondents that the entry in the register regarding death of Sardar was different from those appearing in certain other documents like mutation of his inheritance, therefore, Exh. P-8 cannot be relied upon.
25. This contention hardly deserves any serious notice. The question before this Court is primarily as to whether Sardar had died before Nawab or after him. The exact date of his death is, therefore, not of much consequence. Both the register of mutation and the death register show that Sardar died in November, 1918. Even if there be some slight difference regarding date in the two documents, one of which mentions it 16-11-1918 while the other as 26-11-1918, it can hardly be a ground for refusing to give effect to the presumption attached to the correctness of entries in the register of deaths. In Mst. Zaib-un-Nissa and others v. Mst. Hasarat-un-Nissa and others (52 Indian Cases 162) in almost similar circumstances it was observed that:-- "Any entry made in the register of deaths maintained under paragraph 367 of the Police Regulations, is an official entry made by a public servant in the discharge of his official duty and as such is admissible in evidence under section 35 of the Evidence Act.
' Any entry in such register is, as a rule, reliable to within a few days, and even where the date is not absolutely exact, the entry is often most valuable evidence where the question is as to the relative order in which certain deaths took place."
' There is consequently no reason to discard the death entry (Exh. P-8) which is a valuable piece of evidence.
26. While holding that both Sardar and Sahibzada had predeceased Nawab, the Courts below appear to have been influenced by the previous judgment dated 6-10-1954 (Exh. D-1) passed in a suit filed by Allah Bakhsh petitioner against Mst. Rabia Bibi, wherein the learned Civil Judge while deciding issue No, 1 had observed that it was clear from the extract of Exh. P-1 that father of the plaintiff (i,e, Sardar) died in the lifetime of Nawab deceased. This finding was treated as binding on the parties and conclusive of the controversy. However, while doing so, unfortunately, the true legal position was not appreciated by the Courts below. In law it is well settled that an adverse finding recorded in a judgment, the ultimate result of which is in C favour of a party is not binding on it as the successful party could not have challenged such a finding before a higher forum by filing an appeal or revision and that finding cannot operate as res judicata in subsequent litigation. If any authority is needed, reference may be given to Mst. Khadija Khatoon v. The Additional District Judge, Rawalpindi and 2 others (PLD 1973 Lah 463), Muhammad Anwar v. The Chief Settlement and Rehabilitation Commissioner, West Pakistan, Lahore and 3 others (PLD 1975 Lah. 1463), Abdul Hamid v. Abdul Ghani (1983 CLC 1022), Midnapur Zamindari Co. Ltd. v. Naresh Narayan Ray (AIR 1922 PC 241), Jhanda Singh and another v. Kesar Singh and another (AIR 1930 Lah. 149) and Abdul Rehman Sikdar v. Kali Das Basu (PLD 1958 Dacca 618).
27. Be that as it may, from a perusal of the judgment (Exh. D-1), it would be seen that while observing that Sardar had died during the lifetime of Nawab, the learned Civil Judge had at that time relied upon document which had been produced as Exh. P-1 in that suit. It will be recalled that this Court on an application filed by the petitioners had summoned the original record of that suit which has been perused with the assistance of the learned counsel for the parties. The document Exh. P-1 in that suit is a copy of the death certificate of Sahibzada son of Jhanda and does not relate to Nawab and consequently on the basis of that document it could not be held that Nawab had predeceased Sardar. Faced with this situation, the learned counsel for the respondents submitted that it was due to an inadvertant error on the part of the learned Civil Judge that in the judgment reference has been made to Exh. P-1 though in fact, the document Exh. P-2 should have been referred to. I am unable to accept this argument as there is no warrant for assuming that while referring to Exh. P-1 the learned Court at that time meant Exh. P-2. Furthermore, unfortunately there is no document Exh. P-2 available on the record of that suit and for that reason too this contention of the respondents' learned counsel cannot be accepted.
28. From the above discussion, it is evident that the only evidence on the record to establish the date of death of Sardar was the death certificate Exh. P-8 which was unfortunately ruled out of consideration by the Courts below without any lawful justification. The death entry was made in the year 1918 when there was no dispute between the parties and it remained in existence ever since then which enhanced its evidentiary value. There was no occasion for the Courts below to have kept this document out of consideration. Be that as it may, as already observed, the Additional District Judge has himself found that Sardar died on 6-11-1918 and, therefore, the petitioners were entitled to 3/4th and not 3/8th share in the estate of Nawab deceased. This also disposes of the objection taken by the respondents' learned counsel that a finding of fact cannot be interfered with in the revisional jurisdiction of this Court.
29. There is no cavil with the proposition but it is equally well settled that if the evidence has been misread or ignored from consideration or some legal error has been committed by the Courts below, this Court can interfere in revision. (See Sehab Khan through Legal Heirs v. Muhammad Pannah (PLD 1994 SC 162). In the present case, as already observed, on the finding recorded by the Additional District Judge himself, the suit of the petitioners should have been decreed to the extent of 3/4th share. Furthermore, the Courts below have not only excluded from consideration death certificate (Exh. P-8) but have also proceeded on erroneous view of law in holding that the judgment Exh. P-1 would operate as res judicata.
30. It is also to be seen that the respondents did not produce any evidence either oral or documentary except Exh. D-1 to show that Sardar had predeceased' Nawab. So much so that none of them had entered the witness-box to make such a statement on oath. There was, therefore, no occasion for the Courts below to have held that Sardar died before Nawab.
31. It will be recalled that this Court had permitted production of additional evidence by the parties.
The petitioners had produced on record copies of the revenue record Exh. P-18 to Exh. P-23 which clearly show that Nawab was alive at the time of death of Sahibzada. Exh. P-21 is a copy of mutation of inheritance of Sahibzada which was sanctioned in favour of his legal heirs i,e, the respondents, on 31-12-1913. This mutation was duly given effect to in the subsequent Jamabandis. It is pertinent to observe that it is on the basis of this mutation that the name of the respondents were entered in the revenue record in place of their father Sahibzada. Learned counsel for the respondents, however, submitted that no presumption of correctness attaches to the entries in the mutation register. That may be so but it is well settled that if the entries in the mutation register are given effect to in the record of rights (Jamabandis) then presumption of truth and correctness does arise in respect of the entries contained therein. Reference may be made to Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan (PLD 1971 SC 376), Hakim Khan v. Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832), Chief Administrator of Auqaf, Punjab, Lahore v. Mian Ghulam Farid and others (1993 SCMR 643) and a Division Bench judgment of this Court in Muhammad and others v. Sardul (PLD 1965 (W.P.) Lah. 472).
30. It follows from the above, that the Courts below were not justified in holding that at the time of death of Nawab both his brothers Sahibzada and Sardar were dead. On the other hand, there is overwhelming evidence that Sardar died after the death of Nawab. That being so, Sardar the sole surviving brother of Nawab was entitled to 3/4th in his estate while 1/4th has to go to his widow.
' In view of what has been stated above, this petition is allowed, the impugned judgment and decrees are modified and the suit of the plaintiffs is decreed as against the respondents for possession as prayed for in the plaint to the extent of 3/4th share in the land in dispute. No order as to costs.