' Brief facts out of which the present second appeal arises are that respondents filed a suit for declaration to the effect that Imam Din predecessor-in-interest of the appellants died during the lifetime of Nizam Din predecessor-in-interest of the respondents on 13-3-1971. Appellants filed written statement controverted the allegations leveled in the plaint.
2. Out of the pleadings of the parties, trial Court framed the following issues.
(i) Whether Imam Din died at the time of Nizam Din.
(ii) Relief.
' The learned trial Court decreed the suit vide judgment and decree, dated 10-3-1972. The appellant being aggrieved filed appeal before the District Judge Lailpur who entrusted the same to the Additional District Judge who dismissed the same vide judgment and decree, dated 7-5-1975.
Hence the present second appeal.
3. Learned counsel for the appellant contended that Nizam Din and Imam Din admittedly died on 7-12-1923 as is evident from Exh. D/1 and Exh. D/2 respectively. The serial number of Nizam Din is 1101 whereas serial number of Imam Din is 1102. The serial number itself reveals that Nizam Din died first and Imam Din subsequently. He further stated that documentary evidence was duly corroborated by the oral evidence of the following D.Ws.: ' Khushi Muhammad, Muhammad Ismail Nujberdar, Muhammad Ali and Shafi.
' He further urged that all the D.Ws. Corroborated the aforesaid entries in all material points. He further stated that documents are more than 30 years old. Therefore, the documents cannot be ignored by the Courts below without positive evidence. He further stated that both the Courts below ignored the documentary evidence on surmises and conjectures as the Chowkidar and Numberdar were not mentioned in the death register against the aforesaid entries. The name of one Hashim is mentioned without mentioning his status whether he was Chowkidar or related to the deceased. He further stated that it is not a case of simultaneously death of both Nizam and Imam Din. Therefore, principle relied by both the Courts below that presumption is that elder brother must die first is not sustainable in the eyes of law. He further stated that both the Courts below committed material irregularity to discard the documentary evidence without any justification as the respondents/plaintiffs failed to rebut the same with positive evidence. He further stated that nobody should be deprived from the inheritance unless and until some positive evidence must be brought on record.
4. Learned counsel for the respondents stated that both the Courts below have given concurrent finding of fact against the appellant and this Court while exercising power under section 100 has no jurisdiction to disturb the finding of fact as the principle laid down by the Federal Court PLD 1955 FC
38. He further stated that the trial Court has given cogent reasons to discard the documentary evidence as the D. Ws. Failed to produce any sufficient material to prove the aforesaid entries of death. He further stated that Allah Rakha or Gehney Khan was Chowkidar at that time as admitted by D.W.2 Muhammad Ismail, Ibrahim and Hazoor were Lumbardar at that time whose names are not mentioned in the death register against the aforesaid entries. He further stated that D.W.2 Khushi Muhammad admitted this fact. The trial Court accepted the evidence with cogent reasons which is upheld by the first appellate Court. This Court has no jurisdiction to reverse the findings of fact even if the other view is possible as the principle laid down by the Federal Court in the aforesaid judgment.
5. I have given my anxious consideration to the contentions of learned counsel for the parties, and perused the record. It is better and appropriate to reproduce the family-tree of the parties to resolve the controversy:--- {{URDU TEXT}} ' The land in question was granted under the provisions of the Colonization Government Act, 1912, 40/50 years ago in the name of grand-father of the parties Khaira. After the death' of the original allotted Khaira, land in question was inherited to his four sons but his daughter Mst. Budhi was not given any share as per custom prevailing in the District Sialkot as the original allotted belonged to District Sialkot. During the lifetime of Imam Din, his son Bashir Ahmed died unmarried; his share was taken by his son Muhammad Shafi appellant; after the death of Nizam Din his land was inherited to his two daughters Mst. Naziran and Mst. Aisha Bibi; similarly land of Sadah was inherited to his sons Abdul Ghani and Muhammad Hussain, after his death. Ghulam Muhammad died issueless and his land was given to his widow Mst. Raisham Bibi as limited owner who died in the year 1970. The respondents filed suit for declaration qua the land of late Ghulam Muhammad; that Imam Din died during the life-time of his brother-Nizam Din, therefore, Muhammad Shafi is not entitled to get any share out of the estate of his uncle late Ghulam Muhammad. The contents of plaint reveal that father of the appellant/ defendants namely Nizam Din died prior to his brother Nizam Din; the appellant denied the contents of the plaint. The appellant/defendant produced in evidence Exh.D/1 and Exh. D/2 which are to the following effect:- "Nizam Din died on 7-12-1923, his death was duly registered in the death register at Serial No, 1101; whereas death of Imam Din died on 7-12-1923 and his name was also mentioned in the death register at Serial No, 1102."
' Both the documents were rejected by the Courts below by relying upon section 35 and Rule 55 of section 114 of Evidence Act, 1872. The learned trial Court rejected the same on the ground that the name of Chowkidar and Lumbardar who are responsible for such entries does not find in the register, therefore, date of both the certificates is doubtful as D.Ws. Are not able to file the name of Chowkidar and Lumbardar at that time and no witness has said about Hashim whose name appears in the death certificate and accepted the oral evidence of the respondents/plaintiffs as the witnesses of plaintiffs-respondents are definite that father of defendant-Imam Din died as 12/13 days earlier; coupled with the facts that Imam Din was elder to Nizam Din deceased. The appellate Court upheld the findings of the trial Court by relying Rule 55 under section 114 of the Evidence Act.
It is admitted fact that both the brothers died in epidemic after world war. Out of the aforesaid circumstances, the sole question is to be determined is value of Exhs.D/1 and D/2 respectively. The trial Court refused to rely upon copy of the death certificates on the aforesaid reasoning. The learned A.D.J. Unfortunately gave no independent reason for excluding these documents Exhs. D.1 and D.2, purport to be a certificate copies of the public record and were as such per se admissible by virtue of Article 90 of Qanun-e-Shahadat Order, 1984 or section 79 of Evidence Act.
' It is pertinent to mention here that at the time when the documents were tendered in evidence and exhibited, no objection was raised by respondents/plaintiffs regarding their admissibility nor was their geniuses disputed, therefore, Courts below given could not have ruled out of consideration the documents on surmises and conjunctures as the certified copies of :the documents on the face of it appears to h ie been maintained in the regular course of business and contain death entries of Nizam Din and Imam Din which are mentioned at Serial No, 1101 and 1102 respectively which mention the date of their death as 7-12-1923; there cannot be any dispute that the entries in the register of death are relevant under Article 49 of Qanun-eShahadat Order, 1984 or section 35 of the Evidence Act. It is settled proposition of law that copy of the register is relevant proof of the date of death of such a person as the register is maintained by the public servant in the discharge of his official duty as the principle laid down by this Court in Ahmed Bakhsh's case (PLD 1955 Lah. 187). It is settled proposition of law that entries in the register of birth and death are prima facie evidence of what is stated in them. I am fortified by the judgment of Madras High Court (AIR 1925 Madras 1005); that a death register which is a public document, in the ordinary circumstances must be accepted as almost conclusive. Both the Courts below failed to consider that Article 129 of Qanune-Shahadat or section 114 of Evidence Act, there is a presumption in law that judicial and official act have been performed regularly. It is evident that the burden of showing that the aforesaid Exh D.1 and Exh. D.2 were not genuine; the affected party must be the respondents/plaintiffs . The appellant/ defendant shifted the burden towards respondents by producing these documents but respondents/plaintiffs failed to rebut the same that these documents were prepared subsequently. Both the Courts below decided the controversy between the parties on surmises and conjectures. The respondents/ plaintiffs have to prove that Hashim was not Chowkidar/ Lumbardar on whose information the aforesaid entries of death were recorded in public record. The death entries were recorded in the death register on 7-12-1923 which stood in the death register unchallenged for more than 30 years. The documents are more than thirty years old but both the Courts below did not consider section 90 of the Evidence Act or Article 100 of Qanun-e-Shahadat Order 1984, therefore, judgments of both the Courts below are not in accordance with law as the law laid down by the Humble Supreme Court in Muhammad Ali's case PLD 1994 SC 245. It is settled proposition of law that both the Court below basis their decisions on a wrong proposition of law, the High Court in its provisional jurisdiction or in Second Appeal under section 100, C.P.C. Can interfere with it as the principle laid down by the Humble Supreme Court in Sahib Khan's case PLD 1994 SC 162. Both the Courts below have committed material irregularity to reject the documentary evidence without considering section 90 of the Evidence Act. This Court has ample jurisdiction to disturb the findings of fact in such situation as the principle laid down by the Humble Supreme Court in Shaukat Nawaz's case (1988 SCMR 851). Even otherwise strong evidence is required to disentitled the appellant/defendant from inheritance of his share from the property of his uncle. Both the Courts below relied upon Rule 55 framed under section 114 of the Evidence Act is not sustainable in the eyes of law as section 114 does not reveal that any power to frame Rules under this section, Rule 55 is merely opinion of the author, the aforesaid opinion also does not attract in the present case.
In view of the aforesaid discussion, this appeal is accepted with no order as to costs. Resultantly, judgments of both the Courts below are set aside and suit of the respondents is dismissed.