' Through this single judgment I shall decide Civil Revision No,183 of 1996 (Mst. Zarghoon and others v. Mst. Shandana and others) and Civil Revision No,200 of 1996 (Mst. Shandana v. Mst. Laiqa and etc.) because both emanate from the judgment and decree, dated 13-3-1996 passed by learned District Judge/Zila Qazi, Buner.
2. Mst. Shandana daughter of Mir Salam Khan filed suit for declaration to the effect that she was owner of land measuring 294 Kanals and houses specifically mentioned in the plaint having inherited the same from her father namely Mir Salam Khan and brother Abdul Khaliq Khan.
3. Purdil Khan son of Qadir Khan also filed suit for declaration to the effect that he was owner of property specifically mentioned in the plaint to the extent of 3/8th share. Perpetual injunction and possession was also sought as consequential relief. The learned Senior Civil Judge, Buner at Dagger consolidated both the suits. After framing issues, recording pro and contra evidence of the parties dismissed the suits vide judgment and decree, dated 28-11-1994. Being aggrieved with the said judgment and decree Mst. Shadana filed Appeal No,51/13 of 1994 whereas Mst. Bibi Zarghoon and others. L.Rs, of Purdil Khan also filed appeal in the Court of learned District Judge, Buner, who vide consolidated judgment and decree, dated 13-3-1996 dismissed both the appeals. Being not satisfied with the judgments and decrees of the Courts below Mst. Zarghoon and others, L.Rs, of Purdil have filed Civil Revision No,183 of 1996, whereas Mst. Shadana has filed Civil Revision No,200 of 1996.
4. Mr. Abdul Samad Khan, learned counsel representing petitioners in Civil Revision No,183 of 1996 argued that Mir Salam Khan father of Mst. Shadana died in 1915 as such his entire property was inherited by Karim Khan, his brother. On the death of Karim Khan, Abdul Khaliq Khan. His son became the sole owner, who died somewhere in 1975. The Shariat Laws were extended in 1976 in the area. As per Riwaj Purdil Khan inherited the entire property being paternal-uncle of Abdul Khaliq Khan.
5. It was also argued that under Muslim Law uterine sister is not a residuary. Similarly she is not a sharer in the presence of daughter. As such Mst. Shadana will not inherit anything from Abdul Khaliq Khan. The judgments and decrees of both the Courts below are untenable in law.
6. On the other hand Mst. Shadana claimed that Mir Salam Khan, her father and Karim Khan were real brothers and joint owners in equal shares of the disputed property. Karim Khan died before the death of petitioner's father (Mir Salam Khan) and his share devolved on his son Abdul Khaliq Khan and widow Mst. Habib Nisa. The widow Mst. Habib Nisa contracted second marriage with Mir Salam Khan (the father of the petitioner) and from their wedlock the petitioner was born. After the death of Mir Salam Khan, petitioner became owner to the extent of one half share. Out of remaining property left by Mir Salam Khan, Mst. Habib Nisa his widow became owner of 1/8th share, whereas remaining 7/8th devolved upon Abdul Khaliq Khan.
7. It was further argued that before 1976 the inheritance of a Muslim deceased was governed by Sharia Laws and not under the Riwaj, therefore, as per Muhammadan Law of inheritance she is entitled to half share from the property left by her father and 3/8th share from the property left by Abdul Kahliq Khan.
8. I have heard the learned counsel for the parties and perused the record.
9. The question which needs determination in the case is as to whether Mst. Shadana was entitled to her Shari share according to Muhammadan Law of inheritance or Purdil Khan now represented by his L.Rs, would be entitled to get the legacy of Abdul Khaliq Khan as per Riwaj. In order to appreciate this legal position let us see the evidence adduced by the parties in respect of their respective claims. It is worth mentioning that the learned trial Court vide order, dated 20-9-1988 consolidated both the suits and recorded evidence in Suit No,58/1 filed on 25-6-1988 by Mst.
Shandana against Mst. Laiqa and 33 others, she examined Amir Jang, Patwari Halqa as P.W.1, who placed on record pedigree-table, Exh.P.W.1/1, Fard Jamabandi for the year 1985-86 Exh.P.W.1/2, Fard Jamabandi for the year 1981-82 Exh.P.W.1/3, Misale-Haqiat for the year 1977-78 Exh.P.W.1/4 and Khasra Girdawari for Rabi. 1980 RI Kharif, 1988 Exh.P.W.1/5. Mst. Shandana, plaintiff appeared as P.W.2 who stated that she was entitled for Shari share in the property left by her father Mir Salam Khan and her brother Abdul Khaliq Khan. Abdul Wahid was examined as P.W.3. Qazi Ghufranuddin of Mahkama Qaza Saidu Sharif Swat was examined as P.W.4. Who placed on record copies of original Register Kitabul Arz, decision No,3, dated 22-12-1964. Decision No,24, dated 18-10-1966, decision No,16, dated 4-2-1966, decision No,14, dated 12-1-1966, decision No,26, dated 15-11-1966, decision No,29. Dated 11-1-1967, decision No,33, dated 14-11-1967 and decision No,31, dated 31-1-1969 Exh.P.W.4/1 to Exh.P.W.4/7. This witness was not cross-examined by the respondents.
10. In rebuttal Amir Jan, Patwari Halqa Elai was examined as D.W.1, who placed on record copy of pedigree-table Exh.D.W.1/1. Sharif Khan, A.D.K. Swat was examined as D.W.2, who exhibited pages Nos.76, 77, 75 and 53 from Misil Bandobasti No,648, dated 29-3-1978 Exh.D.W.2/1. Fazal Maula, Clerk Record Room, Swat was examined as D.W.3. Who placed on record pages Nos. I to 13, 96, 100. 156 and 158 of original file titled Purdil Khan v. Mst. Laiqa from the District Record Room, Swat, the same were placed on record as Exh.D.W.3/1. Mumin Khan was examined as D.W.4, who produced copy of order Exh.D.W.3/2. Shamsur Rehman son of Purdil Khan was examined as D.W.S. He produced copy of decision of Tehsildar Daggar. Dated 10-12-1977 Exh.D.W.5/2. Evidence of the parties was thus closed.
11. Minute examination of the evidence led by the parties shows that Riwaj was not prevailing in the area when succession of Mir Salam Khan on his death opened. Mst. Shandana in order to support her contention examined Qazi Ghufranuddin of Mahkama Qaza Saidu Sharif, Swat as P.W.4. Who placed on record copies of various decisions Exh.P.W.4/1 to Exh.P.W.4/7. Perusal of these decisions (Exh.P.W.4/1 to Exh.P.W.4/7) shows that matters pertaining to inheritance of a Muslim in the said area were dealt with in accordance with Sharia and not Riwaj. This witness was not cross- examined by any of the respondents/defendants though proper opportunity was given; therefore, his statement went unrebutted. It is by now established law that if a witness is not cross-examined on a fact and his statement went unrebutted and unquestioned, such a statement as a matter of law and principle could be taken to be correct. Reliance in this regard is placed Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700 and Haji. Din Muhammad through Legal Heirs v. Mst.
Hajira Bibi and others PLD 2002 Pesh.
21.
12. Purdil Khan, plaintiff of Suit No,108/1 claimed his share under Riwaj but he failed to adduce any evidence to show that Riwaj was prevalent in the area at that time. It was the burden of Purdil Khan plaintiff in Suit No,108/1 and after his death of his L. Rs, to prove that Riwaj was prevalent in the said area at that time. He has not only failed to prove that the inheritance of a Muslim in the said area was governed by Riwaj, but he also failed to prove the existence of any Riwaj/custom as required under Article 26 of Qanun-e-Shahadat Order, which is reproduced hereunder for convenience:- "Where the question is as to the existence of any right or custom the following facts are relevant:-
(a) Any transaction by which the right of custom in question was created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence;
(b) Particular instances in which the right or custom was claimed, recognized or exercised or in which its exercise was disputed, asserted or departed from."
13. Under Article 62 of Qanun-e-Shahadat Order, the opinion of 3rd person is relevant in respect of existence of any custom but the petitioners in (Civil Revision No,183 of 1996) have failed to produce any person competent to give opinion regarding existence of custom. In a case Mst. Sohab Kulli and others v. Mst. Balour Jan and others 1989 CLC 407 it was held:-- "It is admitted that under personal law, Mst. Balour Jan acquired title by inheritance in half of the estate left by her deceased father. But rule of inheritance under personal law was subject to exception of custom. It was permissible that if a particular tribe or family was governed by custom viz. a viz. Inheritance of the estate it could prove custom to the exclusion of personal law, the consensus is that when the exception of custom is alleged, it must be proved by very cogent and convincing evidence. This is so as the custom is preferred as an exception to the personal law." ' l& Similarly in Zainul Hassan Mian and others v. Mst. Khuwan Naka and others 1998 MLD 1857 it was held:-- "In spite of the aforementioned clear factual aspect of the case, even under the law, the contention raised at the Bar cannot be accepted for the reason that any custom contrary to personal law of the parties cannot be acted upon unless proved through evidence. In order to prove the existence of any custom certain relevant facts as described under section 13 of the Evidence Act and section 26 of Qanun-e-Shahadat are to be proved, by the party alleging any custom."
15. Similarly in Amirullah through Legal Heirs v. Surat Ali and 17 others PLD 1991 Pesh. 29 it was held that custom must be pleaded in specific terms and proved inductively by the person who pleads it and where custom was pleaded but not substantiated by credible evidence, same would be deemed to be disproved.
16. On the one hand there is oral assertion that Purdil Khan was entitled to inherit property left by Abdul Khaliq Khan as per Riwaj/custom and on the other hand the documentary evidence in the shape of various decisions Exh.P.W.4/1 to Exh.P.W.4/7 placed on record by Qazi Ghufranuddin of Mahkama Qazi showing that the inheritance of a Muslim on his death was governed in the area by Muhammadan Law. It is also a recognized principle of law that oral evidence cannot be given preference over the documentary evidence. In Muhammad Ismail v. Maqbool Ahmad 2002 CLC 252 it was held that the oral evidence cannot be given preference over the documentary evidence.
17. Similarly in Ghulam Hussain and others v. Muhammad Hussain 1986 CLC 770 it was held:-- "The respondent has examined himself on oath. The above documents have corroborated his evidence and in turn he has proved the execution of some of these documents by his evidence as well.
' As against this, applicants have not produced any material document, of title. The only document produced by them is an agreement Exh.P.1., which purports to have been executed by the respondent according to which the shop in suit was given on hire to the respondent at Rs,2 per day.
It is, dated 2-9-1959. The respondent had denied to have taken the shop on hire at Rs,2 per day, in his cross-examination but still the appellants did not confront him with the above agreement.
Apart from that this agreement is prior in date to the agreement Exh.P.9 and, therefore, cannot have precedence over it. Appellant Ghulam Hussain, examined himself and one witness namely A.K. Moen, and repeated all the averments made in the plaint. But the oral evidence of the appellant has no value whatsoever in the face of the above strong documentary evidence led by the respondent."
18. Likewise in Mst. Ghafoor Jan through Legal Heirs v. Muhammad Anwar Khan through Legal Heirs and 15 others 2001 CLC 1332 a Division Bench of Lahore High Court observed:-- "The oral evidence cannot be given preference over documentary evidence. The documentary evidence particularly registered document carries presumption of truth and if a party controverts it then a very strong and exceptional evidence is required to rebut it but the appellant failed to establish that Exh.D.1 was not executed by her and its contents are untrue."
' The same view was taken in Saleem Akhtar v. Nisar Ahmad PLD 2000 Lah. 385 in which it was held:-- "It is also a settled principle of law that oral evidence cannot exclude the documentary evidence. A document is rebutted by document only. Reference can be made, in this behalf, to the case of Arif Baig v. Mubarrak Ali PLD 1992 Lah.
366."
19. Having said in the above paragraphs that the succession of a Muslim in the said area was dealt with in accordance with Sharia and not by Riwaj. It is the established principle of law that as soon as a Muslim owner dies, succession of his property opens. There is no State intervention or clergies' intervention needed for passing of the title immediately, to the heirs. Thus, it is obvious that a Muslim's estate legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. Wisdom in this regard has been sought from Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1.
19-A. Now the question which requires determination is as to who would inherit the property left by Mir Salam Khan and Abdul Khaliq, who died under the domain of Muhammadan Law. Answer to this question is simple. Exh.D.W.1/1 is pedigree-table which has not been disputed by the parties.
According to this document Qadir Khan and Saadat Khan were two brothers. Purdil Khan plaintiff in Suit No,108/1 was son of Qadir Khan, whereas Karim Khan and Mir Salam Khan were sons of Saadat Khan. Karim Khan had only one son namely Abdul Khaliq, who had three widows namely Mst. Hazri, Mst. Saadia and Mst. Jan Wala and one daughter Mst. Laiqa (who was born of Mst. Hazri). Abdul Khaliq did not have any male issue. Mir Salam Khan had only one daughter namely Mst. Shandana (plaintiff in Suit No,58/1).
20. Karim Khan died and his widow Mst. Habibun Nisa married Mir Salam Khan, who was brother of Karim Khan. Out of this wedlock Mst. Shandana was born, therefore, Mst. Shandana became uterine sister of Abdul Khaliq. It is worth-mentioning here that mother of Abdul Khaliq and Mst. Shandana is the same but their fathers are different i,e, Karim Khan was father of Abdul Khaliq whereas Mir Salam Khan was father of Mst. Shandana. It is in evidence that Mir Salam Khan died 70/80 years ago. Since the inheritance of a Muslim was dealt with in accordance with Sharia (Muhammadan Law), therefore, half share out of the property left by Mir Salam Khan would devolve on Mst.
Shandana, 1/8th share would go to Mst. Habibun Nisa, who was widow of Mir Salam Khan and the rest would devolve upon Abdul Khaliq, the nephew and step-son of Mir Salam Khan. Since Karim Khan brother of Mir Salam Khan had died earlier, therefore, no property would devolve on Karim Khan. It is worth mentioning that Mst. Shandana shall also inherit, her Shari share out of the property left by Mst. Habibun Nisa, her mother and the rest of the property left by Mst. Habibun Nisa would devolve upon Abdul Khaliq, her son.
21. Abdul Khaliq died somewhere in the year 1975. He also did not have any male issue, therefore, half of the property left by him would devolve upon his daughter namely Mst. Laiqa, 1/8th shall go to three widows and the remaining 3/8th to Mst. Shandana, his uterine sister.
22. The two Courts below were mainly influenced by the entries made by the Revenue Officer during the Settlement which took place in the year 1976 in the area and the decisions/judgments/orders passed by the Revenue Officer in Case No,648, decided on 29-3-1978 and upheld by the Settlement Officer vide his judgment, dated 1-6-1978 through which the property left by Abdul Khaliq was ordered to be dikributed to his L.Rs, The Courts below did not properly appreciate that succession of Mir Salam Khan was also claimed by Mst. Shandana and the decisions of the Revenue Officers could not stand in her way. They have also failed to appreciate that suit filed by Mst. Shandana seeking Shari share in the property left by her father and uterine brother was not barred by time and any adverse entry in the Revenue Record would not amount to an ouster of a co-sharer. Abdul Khaliq who was also co-sharer in the property left by Mir Salam Khan was holding the same for and on behalf of all the co-sharers. If any adverse entry during the settlement was made in the Revenue Record, the same would not amount to ouster of a co-sharer and a brother cannot legally claim adverse possession against his sister muchless her ouster as held in Mst. Namdara and 3 others v. Sahibzada and others 1998 SCMR 996. Since Mst. Shandana was a co-sharer in the property left by her father Mir Salam Khan and uterine brother Abdul Khaliq, therefore, no limitation would run against her and the suit filed by her was in time.
23. Mst. Shandana as per Muhammadan Law of inheritance was entitled to her Shari share in the property left by her father Mir Salam Khan, mother Mst. Habibun Nisa and Abdul Khaliq uterine brother. Since the Courts below have failed to appreciate the evidence produced by her and legal position mentioned above, therefore, I accept the Civil Revision No,200 of 1996 (Mst. Shandana v.
Mst. Laiqa etc.) and the impugned judgments and decrees, whereby suit filed by Mst. Shandana (Suit No,58/1) and (Appeal No,51/13) also filed by Mst. Shandana were dismissed, are hereby set aside and the suit filed.By her is decreed in her favour.
24. So far as the claim of Purdil Khan and after his death, his L.Rs, is concerned, they claimed share in the property left by Abdul Khaliq under. Riwaj. Since they have failed to prove that any Riwaj/customary law regarding inheritance of a Muslim prevailed in the area and that Purdil Khan being distant uncle of Abdul Khaliq was entitled to inherit the entire property left by him, therefore, the judgments and decrees of the Courts below dismissing their suit (No,108/1) and appeal do not warrant interference and the impugned judgments and decrees to the extent of dismissal of their suits and appeal are upheld. Resultantly the Revision Petition No,183 of 1996 (Mst. Zarghoon and others v. Mst. Shandana and others) is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.