' The matter in contention between the parties relates to the estate of one Yasin (deceased) comprising of land measuring 470 Kanals and 16 Marlas situated in Mauza Faqirian, Tehsil and District Gujrat, more fully described in the plaint filed by the respondents.
2. The respondents namely Ghulam Muhammad, Nazir Ahmed, Mst. Fatima and Mst. Rasoolan, are the sons and daughters respectively of Yasin. It is their case that they are the only heirs of Yasin and as such, they alone are entitled to inherit his estate. The respondents further claim that Mutation No,1352, dated 28-8-1979, which shows Ghulam Ali petitioner as legal heir to the extent of 1/7th share in Yasin's estate, was illegally procured by Ghulam Ali with the connivance of the revenue staff. It is the respondents' contention that Ghulam Ali is the son of Mst. Daulan and has no relationship with Yasin. Ghulam Ali, on the other hand, claims that in addition to the respondents, Yasin had a daughter named Mst. Khadija who died during Yasin's lifetime. The petitioner claims to be the son of Mst. Khadija from her marriage with Abdullah. According to the petitioner, his father Abdullah married Mst. Daulan after the death of his mother Mst. Khadija during his infancy. He asserts that he is not the son of Mst. Daulan as alleged by the respondents.
3. Based on the pleadings, the trial Court framed the following three issues:--
(1) Whether Mst. Khadija was any daughter of Yasin deceased and if proved, whether defendant was her son? OPD.
(2) If Issue No,1 is proved whether the defendant is entitled to inherit the estate of Yasin deceased?
(3) Relief.
4. The parties produced witnesses and also adduced documentary evidence in support of their respective- contentions. Barring Khan Muhammad, Patwari, who appeared as D.W.1, the other witnesses are the parties themselves or their relatives. These witnesses appear to be partisan and support the claims of the parties respectively producing them. The trial Court held that the oral evidence produced by the parties, was evenly balanced and this, indeed, appears to be the position except for two material circumstances. Firstly, it is important to note that Khan Muhammad, Patwari, who had entered the report proposing the mutation of Yasin's estate, was an independent witness whose testimony, discussed shortly bears the mark of a truthful witness.
Secondly, there is an aspect of the, petitioner's testimony, considered below, which is relevant but has been disregarded by the Courts below.
5. Khan Muhammad appeared as D.W.1 and deposed that he was the Patwari for Mauza Faqirian and that he had entered the report of ,Yasin's death and the pedigree-table in respect of Mutation No,1352. The said mutation is on record as Exh.D.1. Khan Muhammad further testified that it was on the basis of information given by Nazir plaintiff (respondent No,2 herein) that his Report No,336 and the pedigree-table had been entered by him in respect of the said mutation. He has been cross- examined and his cross-examination establishes him to be credible, honest and truthful witness.
He has neither hedged his testimony nor did he attempt to conceal or cover up the discrepancies in his report relating to the mutation. He acknowledged that Report No,336 dated 9-7-1979 was entered by him in the Rozenamcha in which initially the name Nazir Hussain as son of Yasin had been entered. He admitted that the name Hussain had been scored off and the name Ahmed had been substituted instead. He further admitted that the crossing out was not done by him and also that the mutation was not sanctioned during his tenure as Patwari. The entire cross-examination is directed towards the discrepancy between the name Nazir Hussain entered in Report No,336 and its change to Nazir Ahmed. The cross-.Examination has not undermined the clear and unambiguous statement made by Khan Muhammad that it was the, plaintiff Nazir (respondent No,2 herein) at whose instance the pedigree-table was recorded by him on Exh.D.1. Khan Muhammad's testimony read with Exh.D.1 would be sufficient to prove an admission on the part of Nazir Ahmed that Ghulam Ali's mother Mst. Khadija was the daughter of Yasin.
6. I now refer to the testimony of Ghulam All which has been disregarded by the Courts below on the ground that he was an interested witness and also that he was only an infant when Mst.
Khadija died and, as such, he was not in a position to give evidence of his relationship with Mst.
Khadija or of her relationship with Yasin. The Courts below have not given any weight to his statement that he was brought up after his mother's death by his maternal grandmother Mst. Rabb who was the wife of Yasin and mother of Mst. Khadija. This testimony establishes conduct which is probative of the relationship between him and Yasin because Mst. Rabia, who was unrelated to Mst. Daulan would have had no reason to bring up Daulan's son. On the other hand, her house would be the natural sanctuary for her daughter's son, particularly, in view of Abdullah's second marriage to Daulan; Ghulam Ali petitioner has not been cross-examined on this aspect of his deposition although it would have been fairly straightforward for the respondents/plaintiffs to shake this testimony through questioning relating to Mst. Rabia and her household. They could also have sought the opportunity to lead evidence to negate Ghulam Ali's testimony. They, however, failed to do so. The fact, therefore, that Ghulam Ali was brought up by Mst. Rabia, the wife of Yasin, stands proved on the record. This fact itself would be relevant as conduct under section 50 of the Evidence Act for the purpose of establishing Ghulam Ali's relationship with Yasin. At this juncture, I should add that learned counsel for the petitioner wanted the Court to attach probative value to the testimony of Mst. Daulan and Abdullah (who appeared as the petitioner's witness) under section 50 of the Evidence Act. This contention, however, is misconceived because the statements of these witnesses do not relate to conduct.
7. I next advert to the mutation itself which, as noted, is Exh.D.1 on the record of the trial Court. It contains the pedigree-table showing Ghulam Ali petitioner as the son of Mst. Khadija and Mst.
Khadija as daughter of Yasin along with the respondents as sons and daughters respectively of Yasin. The fact that the mutation was sanctioned in a Jalsa-e-Aam is not denied by the respondents. In fact, their witnesses confirm that such Jalsa-e-Aam was held. They only deny that the mutation was sanctioned on the basis of oath taken by the Lambardar and other residents of the village, on the Holy Qur'an. The proceedings relating to Mutation No,1352, starting from Report No,336 made by the Patwari on 9-7-1979 and ending with the sanction of the said mutation on 28- 8-1979 are instructive. The order of the sanctioning officer records that the sons of Yasin namely Ghulam Muhammad and Nark Ahmed have stated that Ghulam All is not the son of Mst. Khadija but is the son of Mat. Daulan while Ghulam All is recorded as claiming on oath on the Holy Qur'an that he is the son of Mst. Khadija. Other persons at the proceedings in the Jalsa-e-Aam including Allah Bukhsh, Lambardar, are shown to have sworn on the Holy Qur'an that Ghulam All petitioner was, in fact, the son of Mst. Khadija daughter of Yasin, and that Mst. Daulan was not his mother. It was on the basis of such statements recorded in the ordinary course of official work that the Mutation No,1352 was sanctioned by the Assistant Collector. It is worth noting from these proceedings that the only controversy which came up before the Assistant Collector during the aforesaid proceedings, was whether Ghulam All was son of Mst. Khadija or of Mst. Daulan. The contention that Mst. Khadija was not a predeceased daughter of Yasin, does not find any mention in the proceedings leading to the sanction of the aforesaid mutation.
8. The register of mutations is an official register required to be maintained under the provisions of the Land Revenue Act. The functionaries of the Revenue department are obliged, in the discharge of their official duties, to make entries in accordance with section 42 of the Land Revenue Act relating to matters of inheritance and devolution of the properties of a deceased owner, in the process of sanctioning mutations. Consequently, by virtue of the provisions contained in section 35 of the Evidence Act entries made in the register of mutations, relating to a fact in issue or relevant fact, would by themselves be relevant facts which could be proved and read in evidence. The entries in Exh.D.1, therefore, constitute valid evidence in respect of the facts in issue in the present case. In brushing aside Exh.D.1 and ignoring its contents the Courts below have acted illegally.
9. The evidence of conduct in Ghulam Ali's evidence and the testimony of Khan Muhammad, Patwari, which clearly identifies Nazir respondent No, 2 as the source of his information relating to the heirs of Yasin, coupled with mutation Exh.D.1 and the official entries and proceedings leading to the sanction of the mutation, in my opinion, clearly establish Mst. Khadija to be the daughter of Yasin, and Ghulam Ali to be the son of Mst. Khadija. On this basis, therefore, Ghulam Ali would be entitled to inherit 1/7th share of Yasin's estate.
10. The trial Court has decided issue No,1 on premises which are wholly untenable in law. The proceedings, leading to the mutation, have been discarded by the trial Court in a cursory manner by holding that it was a result of a summary procedure and, therefore, much reliance could not be placed on it . The testimony of Khan Muhammad, Patwari, has been disregarded merely on the basis of his cross-examination wherein he admits that the name of his informant, originally mentioned in the mutation, was Nazir Hussain but thereafter was changed to Nazir Ahmed. It is on this basis that the trial Court concluded that Nazir Ahmed had not provided the information and pedigree-table which finds mention in the mutation itself. The trial Court has not relied 'non the categorical deposition' made by Khan Muhammad identifying Nazir ,plaintiff (respondent No, 2 herein) as the source of his information on the basis of which he entered Report No, 336 and the pedigree-table on the Mutation Exh.D.1. This clear statement by Khan Muhammad who, as noted above, is an independent witness, has only been countered by Nazir respondent No,2 who appeared as P.W.3 and stated that he had not furnished any particulars in relation to the mutation to Khan Muhammad, Patwari. It is strange, indeed, that the trial Court has relied on the statement of the plaintiff himself as against the statement of an independent witness whose testimony as to the identity of Nazir plaintiff as informant, has not been shaken or undermined through cross- examination.
11. The reasoning of the lower Appellate Court while considering and discarding the testimony of Khan Muhammad is also erroneous and legally untenable as discussed next.
12. The lower Appellate Court has concluded that the Mutation Exh.D.1 shows that it was got recorded by one Nazir Hussain. This, however, is not correct. As discussed above, Khan Muhammad D.W.1 has identified the plaintiff as the person at whose instance the entries relating to the heirs of Yasin, were made. The correct reading of Exh.D.1, in the light of the testimony of Khan Muhammad, Patwari, would be that it was the plaintiff Nazir who furnished the requisite information to the Patwari but his name was erroneously recorded as Nazir Hussain instead of Nazir Ahmed. By holding that one Nazir Hussain had got the mutation recorded, constitutes misreading of evidence.
It is to be noted that it is neither party's case that some stranger by the name of Nazir Hussain provided the requisite information to Khan Muhammad. The case of the respondents is that Ghulam Ali had connived with the revenue staff to fraudulent) /procure Mutation No,1352. In these the finding of the lower Appellate Court that one Nazir Hussain and not Nazir Ahmed provided the basis for the Mutation Exh.D.1, is not sustainable.
13. The lower Appellate Court also has relied on the statement of Nazir Ahmed plaintiff as opposed to the independent testimony of Khan Muhammad, Patwari D.W.1. The learned Additional District Judge has further held that there is nothing in the proceedings recorded on the mutation register to show that the plaintiffs ever admitted that Mst. Khadija was the daughter of Yasin. The plaintiffs, according to the Appellate Court, had denied this fact. It is evident from the proceedings resulting in the mutation that there is no denial by the plaintiffs of the fact that Mst. Khadija was a daughter of Yasin. The only controversy finding mention in such proceedings was that the plaintiffs/ respondents denied that Ghulam Ali was the son of Mst. Khadija. They asserted that he was the son of Mst. Daulan. This constitutes further misreading of the record by the lower Appellate Court. The lower Appellate Court has further asserted that "there is not a single independent witness to corroborate the testimony of the defendant". This observation is obviously incorrect as Khan Muhammad is an independent witness unrelated to the parties.
14. However, the most blatant error committed by the lower Appellate Court is its reliance on a pedigree-table which has not been exhibited in evidence. It is on the basis of this document that the Court below has come to the conclusion that Mst. Khadija is the daughter of Abdullah and not of Yasin. The lower Appellate Court, as such, has committed material irregularity in the exercise of its jurisdiction.
15. The main contention of the learned counsel for the respondents was that issue No, 1 was an issue of fact and the two Courts below had concurrently concluded that Mst. Khadija was not the daughter of Yasin. She, therefore, argued that this Court in revisional jurisdiction should not interfere in the concurrent findings of the two Courts below. In support of her contention she cited a chain of authorities which it is not necessary to discuss in detail because the general proposition of law stated by her is well-established. Learned counsel for the respondents, in particular, made reference to the cases titled Muhammad Swaleh and others v. Messrs United Grain & Fodder Agencies (PLD 1964 SC 97), Ali Muhammad v. Mst. Zahida Parveen (1992 CLC 2328), Muhammad Bux v. Muhammad Ali (1984 SCM R 504) and Malik Fez Alam v. Malik Muhammad Arshad Khan and another (PLD 1986 SC (AJ&K) 64). I have gone through the said precedents and am in respectful agreement with the principles of law enunciated therein. The cited cases do not profound a mechanical rule to be adhered to in all cases regardless of the legality of the findings impugned in revision.
16. It is well-settled law that where the Courts below have arrived at their findings through an erroneous process or by ignoring statutory rules of evidence or by reasoning which is not legally tenable, their findings even though concurrent, are amenable to correction in revisional jurisdiction.
It is equally well settled that where there has been misreading or non-reading of evidence or where a Court deciding a question of fact relies on material which does not form part of the evidence on record, its findings are not sacrosanct merely because such findings affirm or are affirmed by another Court. It would indeed be perverse to hold that a party wronged by one of the Courts below for any of the afore stated reasons, would be entitled to redress in revisional jurisdiction but a party wronged by both Courts would not. The only concurrent findings which in my humble opinion, will fall beyond the pale of revisional jurisdiction, would be those where the Court in revision concludes that the Courts below have acted legally in all respects while deciding the issues before them but have reached a conclusion different from the one which commends itself to the revisional Court. Concurrent findings on questions of fact will thus, not be interfered with in revisional jurisdiction only where such findings are arrived at legally and without material irregularity. In the present case, the decisions of the two Courts below recorded by them on Issue No,1 do not meet the aforesaid criteria.
17. To sum up, the conclusions to be drawn from the above discussion are that (i) the testimony of Khan Muhammad, Patwari D. W.1 has been wrongly disregarded by the two Courts below and the same has also been misread by the lower Appellate Court; (ii) the evidentiary value of Exh.D.1 has been illegally ignored; (iii) Ghulam Ali's evidence of conduct to prove his relationship with Yasin has been omitted from consideration in violation of section 50 of the Evidence Act and (iv) the lower Appellate Court has based its decision on material which does not form part of the record. In .Committing the foregoing errors, the Courts below have acted in the exercise of their jurisdiction illegally and with material irregularity. The findings of the two Courts below, therefore, are subject to correction in the exercise of revisional jurisdiction. I, therefore, have no hesitation in reversing the findings of the two Courts below and in holding that Issue No, 1 stood proved on the record in favour of Ghulam Ali petitioner/defendant.
18. I next come ' to Issue No,2. The respondents had in their suit alleged that Ghulam Ali would not be entitled to inheritance in the estate of Yasin, even if Issue No,1 was to be decided in favour of Ghulam Ali. This averment was based on a misconception as to the provisions of section 4 of the Muslim Family Laws Ordinance. The said law stipulates that the children of a predeceased son or daughter of a porosities would be entitled to inheritance in place of such predeceased son or daughter. The trial Court, therefore, rightly held that Ghulam Ali would inherit 1/7th share in the estate of Yasin, if Issue No,1 was decided in his favour. In the present proceedings, learned counsel for the respondents did not, indeed could not, dispute the legal position set out in the judgment of the trial Court.
19. In view of the above discussion, this revision petition is accepted and the judgment and decree of the trial Court, dated 29-7-1981 and that of the lower Appellate Court, dated 11-1-1983 are set aside. As a consequence, the suit filed by the respondents is dismissed with costs throughout.