Mst: Zubaida Bibi had brought a suit for declaration that she was owner of the suit land left by her father Hashim, who was follower of "Fiqa Jafria" and that Mutation No,1096 of his inheritance was result of fraud, illegal and was in-effective qua her rights. Lal the brother of Hashim deceased, who was impleaded as defendant ,No,1 did not contest the suit and tiled conceding written statement whereas Faqir Muhammad respondent No,2 herein, nephew of deceased Hashim (son of Manak) contested the suit. He denied the assertion of Mst. Zubaida Bibi that she was daughter of Hashim or that Hashim deceased was follower of "Fiqa Jafria". He also raised certain preliminary objections about maintainability of the suit, including that the same was time-barred. Issues were framed by the Trial Court where after the parties produced evidence in support of their respective pleas. The learned Trial Court vide judgment dated 24-1-1989 found the suit to have been filed within limitation. It was also found that Mst. Zubaida Bibi petitioner/plaintiff was daughter of Hashim. He was, however, of the view that she had failed to establish that Hashim deceased was follower of "Fiqa Jafria". The suit was decreed "in favour of the plaintiff with the observation that the plaintiff has failed to prove that Hashim deceased follower of Fiqa Jafria". Mst. Zubaida Bibi as also Faqir Muhammad preferred appeals against the judgment of the Trial Court, both were dismissed by the Additional District Judge. Jhang, vide his common judgment dated 30-9-1990. Faqir Muhammad did not challenge the matter any further. It is , however, revision petition by Mst. Zubaida Bibi that the view taken by the two Courts below about the faith and sect of Hashim, her deceased father is based on misreading and non-reading of material evidence on record.
2. It is contended by the learned counsel that whereas the deposition of P,W.3 Sher Muhammad and Mst. Zubaida Bibi P.W.4 have been misread by the Courts below, Exh.P.11 which was copy of the suit filed by Faqir Muhammad have not at all been adverted to by either of the Courts. According to him, the petitioner had brought on record ample evidence to establish that Hashim deceased was follower of "Fiqa Jafria". Since Lal deceased had not contested the suit and had filed conceding written statement. He remained un-represented throughout.
3. The learned counsel for respondent No,2 Faqir Muhammad contends that there is a finding by the two Courts below that Hashim was not follower of Fiqa Jafria which cannot be upset by this Court in revision. It is contended that there is a presumption that all are followers of "Sunni Fiqa" except when proved to the contrary. According to him Exh.P.11 had no 'relevancy to the matter.
4. According to the Pedigree-table Hashim deceased had two brothers Lal and Manak, Hashim had a daughter Mst. Zubaida Bibi, whereas Faqir Muhammad respondent/defendant was son of Manak. There is now finding concurrently returned by two Courts below that Mst. Zubaida Bibi was daughter of Hashim. After the dismissal of his appeal even Faqir Muhammad respondent has not challenged the matter any further. Findings to that extent have become conclusive and final.
5. The only dispute, however. now is whether, Hashim deceased was follower of "Fiqa Jafria" or was "Sunni". In paragraph 3 of the plaint the petitioner/plaintiff had made specific assertion to that effect that he was follower of "Fiqa Jafria".. Lal brother of Hashim deceased in his written statement admitted and conceded this position. Faqir Muhammad son of Manak (nephew of deceased Hashim and Lal). however, chose to deny the very relationship of the petitioner/plaintiff and denied her to be the daughter of Hashim deceased. It was also denied that Hashim was follower of "Fiqa Jafria". Sher Muhammad P.W.3 who was cousin of Hasham deceased had stated that Hashim was follower of "Fiqa Jafria". He claimed himself to be the follower of 'Fiqa 3afria' Mst. Zubaida Bibi petitioner appeared as P.W.4 and stated that her father and mother belonged to "Shia" sect. Fazil D.
W.1 who was produced by respondent No,2 stated that Hashim was "Sunni" and his "Janaza" prayer was also offered accordingly. Manak Khan D.W.2 also made statement to that effect.
Faqir Muhammad appeared as D.W.3 and emphatically stated that Zubaida Bibi was not daughter of Hashim but made no statement as to whether Hashim was "Shia" or "Sunni". He.was, however, confronted with the copy of the plaint Exh.P.11, which was a declaratory suit filed by him against Lal, his paternal uncle and other family members wherein he had pleaded that the parties belonged to "Fiqa Jafria" While appreciating the evidence the Courts below did not attach much importance to the deposition of P.W.3 Sher Muhammad, the member of the same family and the deposition of the petitioner wherein she had also stated that her father Hashim and mother were follower of "Fiqa Jafria". There was no plausible reason for ignoring their depositions, particularly when respondent No,2 Faqir Muhammad himself had in a suit filed by him Exh.11 clearly stated in paragraph 5 of the plaint that the parties belonged to Fiqa Jafria". It may be noted that he had given the Pedigree- Table in the plaint (except the petitioner whom he had already denied to be the daughter of Hashim) and had sued the entire family. This document which was in the nature of an admission received no attention either of the Trial Court or of the Appellate Court and was totally excluded from consideration. The said suit was filed by him on 5-3-1988 when the suit already filed by the petitioner Mst. Zubaida Bibi was pending. That seems to be the reason that he chose not to depose. anything about the faith of Hashim deceased when he appeared as D.W.3. Taking the contents of Exh.P.11 into consideration alongwith the statements of P.W.3 and P.W.4 as also the stance of Lal, the paternal uncle of both the parties, there remains no doubt whatsoever that Hashim deceased, who was brother of Lal and Mank was also follower of "Fiqa Jafria" as was pleaded by respondent No,2 in paragraph 5 of the plaint Exh.11. Since respondent Faqir Muhammad D.W.3 had not stated any thing about the faith of Hashing, the statements of Fazil D.W.l and Manak D. W.2 remained uncorroborated and were not worthy of credence. Through the preponderance of evidence, the petitioner/plaintiff had succeeded in proving that her father Hashim belonged to "Shia". faith and had successfully rebutted the general presumption as to Snni" faith. The findings of two Courts- below to this extent are result of misreading and non-reading of evidence and need to be thus reversed and modified. The suit tiled by the petitioner was, thus, entitled to be decreed as prayed for.
In view of the above, this petition is accepted as a result whereof the suit tiled by the petitioner shall stand decreed as prayed for. No order as to costs.