' Through this civil revision defendant Yaqub Hussain has challenged the judgment and decree of District Judge, Layyah, dated 25-4-1988, whereby the Appellate Court, while accepting the appeal of the plaintiff, decreed her suit for declaration and permanent injunction, which had been dismissed by the trial Court vide judgment and decree, dated 14-9-1987.
2. Brief facts of the case are that Matloob Hussain, the father of the plaintiff died in the year 1968 when the plaintiff was minor of about 10 years of age. The deceased was owner of agricultural land measuring 112 Kanals, situate in Chak No, 114/TDA District Layyah. He, was survived by his widow, namely Mst. Aliya Begum, respondent/defendant No, 2 Mst. Hamida Narjis plaintiff/daughter and Yaqub Hussain real brother. Mutation of inheritance of the estate of deceased Matloob Hussain was attested on 31-12-1981, treating him as Sunni Muslim, thus shares were given as under:-- {{TABLE}} ' Widow Mst.Alia 1/8 ' Daughter Mst. Hamida 4/8 Narjis.
' Brother Yaqub Hussain 3/8 {{TABLE}}
3. Mst.Hamidi Narjis, plaintiff, filed a suit on 26 9-1982 for declaration and permanent injunction against Yaqoob Hussain and also impleaded Mst. Alia as pro forma defendant and alleged that Matloob Hussain propositus was a Shia Muslim, therefore, plaintiff is owner of 7/8 share in the estate of her deceased father while defendant Alia is owner of 1/8 share and sought a declaration and permanent injunction against the defendant Yaqoob Hussain, that he is not an heir of the deceased Matloob Hussain, therefore, be restrained claiming share in his estate and further sought a declaration that attestation of Mutation No, 51, dated 31-12-1981, is illegal and ineffective qua her rights. Yaqub Hussain defendant contested the suit by filing written statement while Mst. Alia defendant No,2, filed consenting written statement. On the divergent pleadings of defendant No, 1 Yaqub, following issues were framed by the trial Court:
(1) Whether the suit of the plaintiff is barred by res judicata? OPD.
(2) Whether the suit of the plaintiff is collusive? If so, with what effect? OPD.
(3) Whether this Court ' has no jurisdiction to try this suit? OPD.
(4) Whether the plaintiff has no cause of action to file this suit? OPD.
(5) Whether the plaintiff has not filed this suit with unclean hands? If so, with what effect? OPD.
(6) Whether the suit is bad for non- joinder of necessary parties? CM.
(7) Whether the form of the suit is incorrect? OPD.
(8) Whether the defendant No, 1 is entitled to special costs under section 35-A, C.P.C.? If so, with what effect? OPD.
(9) Whether the deceased Matloob Hussain was a Shia by faith? If so, with what effect? OPD.
(10) In case Issue No, 9 is replied in the affirmative, whether the Mutation No, 51, dated 31-12-1981 is against law, facts illegal and void and not binding upon the rights of the plaintiff? OPD.
(11) Whether the plaintiff is owner in possession of the suit property? OPP
(12) Relief.
4 The parties led oral as well as documentary evidence. The trial Court decided Issues Nos. 9 to 11 against the plaintiff and as a result thereof dismissed the suit of the plaintiff vide judgment and decree, dated 14-9-1987. The plaintiff filed an appeal before the District Judge, Layyah. The learned District Judge, accepted the appeal of the plaintiff, reversed the findings of trial Court on Issues Nos. 9 to 11, set aside the judgment and decree of the trial Court, whereby the suit of the plaintiff was dismissed and resultantly decreed the suit of the plaintiff leaving the parties to bear their own costs vide judgment and decree, dated 25-4-1988. Hence, this civil revision by the defendant/petitioner Yaqub Hussain.
5. The relevant contested issues are Issues Nos.9 to 11.
' The learned counsel for the petitioner/defendant has argued that there is a legal presumption in lndo-Pak Sub-Continent that every Muslim is a Sunni unless contrary is established by good evidence, while the learned District Judge ignored this presumption while passing the judgment and decree. In this respect reliance has been placed on judgment reported in (PLD 1965 SC 134)
Pathana v. Mst. Wassai etc. And (PLD 1985 Kar. 365) Amir Ali v. Gul Shaker etc. Further argued that the petitioner/defendant had proved through cogent evidence of D.W.2 Abdul Hameed, the colleague of deceased Matloob Hussain, that the deceased was a Sunni Muslim. Partner argued that the learned Appellate Court has not at all considered the legal effect of Exh.D.4, the written statement filed on 24-4-1983 by plaintiff alongwith her mother as defendants in a suit for share of produce filed by the petitioner against Qadir Baldish tenant claiming share of produce from the estate of propositus. The then plaintiff/ defendants in the said suit had admitted the petitioner as shareholder in the said suit property to the extent of 3/8. Further argued that onus of Issue No,9 was on the plaintiff/ respondent, while she has failed to discharge the onus producing the best evidence in this respect. Further argued that defendant No, 2, Alia was one of the best witness to state about faith of her deceased husband but she did not appear in the witness-box, though she had filed consenting written statement in favour of the plaintiff. Further argued that though the plaintiff did appear as her own witness as P.W.4, but her statement regarding the practice and faith of propositus Matloob Hussain is of little value as at the time of his death the plaintiff was only aged about 10 years. Further argued that through Exh.D.1 and Exh.D.2, it is proved that Matloob Hussain had died on 28-11-1968 while plaintiff had tried to show that her funeral expenses were borne by Anjaman. Muenul Amwat Mughalpura, Lahore, a registered society of Shia Muslims and the deceased was a member of the said Anjaman and had died on 28-10-1968.
6. On the other hand, learned counsel for the plaintiff/respondent has argued that it is well- established law that after the parties produce their evidence, the onus become irrelevant. The plaintiff has proved through direct evidence of P.W.2 and P.W.3, who had the knowledge of the sect and faith of the deceased Matloob Hussain that propositus was a Shia Muslim, and P.W.2 one of the cousins of deceased Matloob Hussain, and P.W.3, who knew the deceased since before partition of subcontinent, and is closely related being ' ' had categorically stated that deceased was a Shia Muslim and his marriage was also solemnized and his funeral prayer was also led by Shia Muslim, namely, Maulana Muhammad Taqi Hussain. Further argued that through P.W.1 the plaintiff has further proved that deceased was the member of Anjaman Muenul Amwat, Mughalpura while its membership is only restricted to Muslims following the Fiqa Jaffria. Further submits that it has been proved through independent witnesses that the only funeral prayer of propositus was led by Muhammad Taqi Hussain, a Shia Jurist. As regards Exh. D.4 the learned counsel for the plaintiff has argued that contents of Exh.D.4 were never put to P.W.4, when she appeared as her own witness, hence, the contents of Exh.D.4 cannot be used as admission by the plaintiff.
7. As regards the presumption of Muslims of sub-continent to be followers of .Sunni Fiqah, the learned counsel for the respondents has argued that it is a rebuttable presumption and the plaintiff has fully proved through oral as well as documentary evidence that deceased Matloob Hussain was a follower of Shia Fiqah. The learned counsel for the respondent has further argued that the petitioner has failed to point out any illegality or material irregularity in the impugned judgment of the Lower Appellate Court to attract the revisional jurisdiction of this Court and further reappraisal of evidence is not within the scope of the civil revision.
' I have considered the arguments of the learned counsel for the parties and have perused the record. The petitioner/defendant has tried to show through Exhs.D.1 and D.2 that Matloob Hussain had in fact died on 8-11-1968, hence Exh.P.1 is a fake document and further evidence of P.W.1 is not relevant for decision of the point in issue. Suffice it to say that the petitioner/defendant himself had produced death certificate of Matloob Hussain before the Revenue Officer for attestation of mutation wherein the date of death of Matloob Hussain has been shown as 28-10-1968 as recorded in the mutation sheet Exh.P.2. In the circumstances, the plaintiff/petitioner's evidence regarding the date of death as 28-10-1968 cannot be termed as fake. The plaintiff through oral evidence of P.W.1, P.W.2 and P.W.3 has proved that deceased Matloob Hussain was follower of Shia Fiqah and not only his funeral prayer was led by Shia but his Nikah was also performed by Shia and he has been following Shia Fiqah throughout this life while on the other hand, the petitioner/ defendant has failed to prove otherwise. There is no illegality or material irregularity committed by the Lower Appellate Court while deciding Issues Nos.9, 10 and 11. The plaintiff/respondent through reliable evidence of close relatives as well as through Exh.P.1 and P.W.1 has rebutted the presumption by proving that propositus was a Shia Muslim.
' In the circumstances, finding no force in this civil revision, the same is hereby dismissed,, However, the parties are left to bear their own costs.