ROSHAN DIN Versus ALLAH DIYA

ORDER

The brief facts out of which the present reference arises are that original owner of the land in-question was Gokel who had two sons, namely Ganda and Boota. Ganda embraced Islam and adopted the name of Muhammad Din. Boota had mortgaged his land in favour of non- Muslim vide Mutation No.586 sanctioned on 15‑5‑1934. Mortgagee rights were purchased by his brother Ganda (Muhammad Din) vide Mutation No.700 which was sanctioned on 12‑6‑1937 for a sum of Rs. 1,200. Mutation of embracing Islam by Ganda and adopting his name as Muhammad Din was also sanctioned on 28‑10‑1948 vide Mutation No.1325. Muhammad Din/Ganda died. Inheritance Mutation No.1423/1 was sanctioned in favour of his son present petitioner, on 25‑9‑1956. Subsequently Boota died and his Mutation of Inheritance No.1488 was also sanctioned on 19‑5‑1961 in favour of the petitioner. Mutation of inheritance of Boota was cancelled thereafter vide order dated 26‑9‑1963 on the ground that the same was sanctioned without prior permission from the Custodian. The property in-question was mutated in the name of Central Government vide Mutation No. 1734 on 9‑7‑1964. A part of the land in-question was allotted to Sikandar predecessor‑in‑interest of respondents Nos.13 and 4 in Khata No.57‑RL‑II and the remaining land in-question was allotted to Shahnawaz respondent No.2 in Khata No.53 in the year 1964. The petitioner being aggrieved filed suit for a declaration with permanent injunction before the Senior Civil Judge, Gujrat on 29-10‑1963 who referred the case to. Custodian under section 41 of Pakistan Administration Evacuee Property Act, 1957. The Custodian sent the suit of the petitioner to Deputy Custodian for trial. The learned Deputy Custodian decided it against the petitioner on 31‑7‑1971. The petitioner being aggrieved filed appeal before this appellate authority. The appeal was allowed vide order dated 6‑3‑1984 and the case was remanded to the Deputy Custodian to decide the same afresh. The Deputy Custodian decided the case after recording the evidence in favour of the petitioner vide order dated 30‑3‑1988 and transmitted the same to this Authority for confirmation.

2. Learned counsel for the petitioner submits after reading the evidence that uncle of the petitioner Boota never migrated to India and embraced Islam 10/12 years before the partition in the year 1933/34. He further submits that Boota died in Pakistan as is evident from death certificate dated 6‑3‑1961 which was on record during the first round of litigation in Appeal No.19 of 1972 between the same parties. He further submits that R. W. 1 and R. W. 2 have given evidence against the petitioner on account of enmity as is evident from F.I.R. No. 11 of 1982 registered with Police Station Khurhianwala, District Gujrat which was also on the record of Appeal No. 19 of 1972 filed by the petitioner in the earlier round of litigation. He further submits that the case was remanded to the learned Deputy Custodian to decide the same afresh after ascertaining facts on evidence to be produced and with reference to documents placed on record in this Court or other relevant material in accordance with law. The petitioner filed application to produce on record additional evidence in the shape of documents which was accepted by the Deputy Custodian except the death certificate dated 6‑3‑1961 and aforesaid F. I. R. He further submits that Deputy Custodian had sent the recommendations in favour of the petitioner after proper appreciation of evidence on record, for confirmation.

3. Mr. Muhammad Anwar Sipra, Advocate for respondents Nos.3 and 4 submits that all the evidence produced by the petitioner before the learned Deputy Custodian is not direct evidence. The statement of all the P.Ws. are hear say evidence which is not admissible in the evidence. He further submits that petitioner had withheld the best evidence which is relevant to decide the case as the Jamma bandi of the year 1946‑47. He further submits that land in-question has been sold by the respondents, to the other persons after the order of Deputy Custodian on 31-7‑1971. The bona fide purchaser have purchased the land in question from the respondents. At that time there was no litigation pending before any, authority. He further submits that petitioners placed on record family tree of the petitioner's family, which was prepared after the partition which is not relevant to decide the case between the, parties. He further submits that this Court in Appeal No.19 of 1972 only remanded the case to decide the case afresh but did not set aside the findings of the Deputy Settlement Commissioner's order dated 31‑7‑1971 on merits. He further submits that Deputy Custodian wrongly without any documentary evidence sent his recommendations to this Court for confirmation in favour of the petitioner. He further submits that Deputy Custodian had misread the evidence on record and wrongly made recommendations in favour of the petitioner. He further submits that Boota had migrated to India and petitioner's son fabricated the Revenue Record being a Lambardar of, the village who was dismissed on this ground. Subsequently he was appointed as Patwari and promoted as Girdawar. Ch. Nisar Ahmad Kalu, Advocate also adopted the argument of Mr. Muhammad Anwar Sipra, Advocate of respondent No. 1. In addition to his arguments he submits that Ganda remained in Pakistan and embraced Islam and mutation was sanctioned qua this effect in the Revenue Record whereas no mutation was sanctioned with regard to embracing of Islam by Boota in the Revenue Record. The Tribunal below did not consider the effect of section 41 of Transfer of Property Act i.e. principle of bona fide purchaser.

4. Learned counsel of the petitioner in rebuttal submits that in case of conflict between oral evidence and documentary evidence entry in the death register than documentary evidence shall prevail over the oral evidence. In support of his contention he relied upon Bhag Bhari v. Akbar Khan (1987 C.L.C.1543). He further submits that R.W.1 and R.W.2 have given statement against the petitioner on account of enmity.

5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

6. The petitioner appeared before the Deputy Custodian Evacuee Property in the earlier round of litigation on 28-4-1974. He had given the following statements:--

It is further pertinent to mention here that the petitioner attached certified copies of Exhs. P.1, P.2, P.3 and PA alongwith the petition under Order XIII, rule 1, C.P.C. the Deputy Custodian did not accept the suit of the petitioner vide order dated 31‑7‑1971. The petitioner being aggrieved filed Appeal No.19 of 1972 before the appellate authority. During the pendency of the appeal the petitioner filed following documents through C.M. application which was accepted by the appellate authority:‑

(i) On the death of grandfather of the petitioner Gokal, Inheritance Mutation No.262 dated 14‑3‑1910 was sanctioned in favour of Ganda (Muhammad Din) father of the petitioner and Boota uncle of the petitioner.

(ii) Muhammad Boota mortgaged his share to Diwan Chand vide Mutation No.586 which was sanctioned on 15‑5‑1934.

(iii) Motgagee rights were purchased by father of the petitioner Ganda vide Mutation No.700 which was sanctioned on 12‑6‑1937. The change was duly effected in the lamina Bandi for the years 1936/37, 1944/45, 1952/53, 1954/57 and 1960/61 respectively.

(iv) Father of the petitioner embraced Islam and adopted the name of Muhammad Din vide Mutation No.1325 in the Revenue Record which was sanctioned on 28‑10‑1948.

(v) Inheritance Mutation No.1423 was sanctioned in favour of the petitioner after the death of his father on 25‑9‑1956.

(vi) Motgagee rights of his father qua the share of his uncle Boota was also sanctioned in favour of the petitioner being the exclusive heir on 14‑12‑1956.

(vii) Inheritance Mutation No.1488 qua the property of his uncle was sanctioned in favour of the petitioner of 19‑6‑1961.

The above mentioned two mutations were 'cancelled on 26‑9‑1963 by way of review.

(viii) Mutation No. 1734 was entered regarding the change of ownership from the name of the uncle Boota to the Central Government which was cancelled by the Revenue Authorities vide order dated 13‑7‑1964.

(ix) The petitioner filed application for obtaining certified copies of Jammabandies which was returned to the petitioner with a report on 17‑5‑1983 to the effect that Jammabandi for the years 1947‑48, 1949‑50 were not prepared. The application alongwith endorsement made on this reverse.

(x) This Court remanded the case vide order dated 6‑3‑1984 with the following directions to the learned Deputy Custodian:‑

"In this view of the matter, the order of the learned Deputy Custodian dated 31‑7‑1971 is set aside and the matter is remanded to ascertain facts on evidence to be produced and with reference to documents placed on record in this Court or other relevant material and for fresh decision in accordance with law ." (Underlining is mine).

The aforesaid document reveal that the property in-question was not‑declared by the competent Authority as evacuee property till 1‑1‑1957. In the similar circumstances, the Honourable Supreme Court has decided the case of Quetta Hindu Panchayat v. Dilshad Akhtar and others (1993 SCMR 21) and laid down following principle:‑

"We have thoroughly scanned the record that could not find any evidence whatsoever to establish that the Custodian of the Evacuee Property, constituted under Regulation I of 1950 and the subsequent Acts, the last being Act XII of 1957, over treated this property as evacuee property and took control of the same. As a matter of fact, he could not possibly do so, the owners being legal entity (Hindu Panchayat) could not possibly be presumed to have migrated to India; rather, they were not only present in Pakistan but were in the physical and administrative control of the disputed property as well. In the circumstances, the disputed property was not evacuee property and could not be legally transferred to claimants after the enforcement of Settlement Laws and the allotment thereof by the Settlement Authorities vide orders dated 12‑4‑1959 and confirmed by order No.288, dated 12‑4‑1962 are coram non judice, without lawful authority and. of no legal effect. The subsequent transfers made by the allottees are, resultantly, illegal and not binding on the appellants."

The certified copy of the death certificate of the uncle of the petitioner was produced by the petitioner in his evidence as Exh.P.1 without any objection. It is settled principle of law that a death register which is a public document has, in ordinary circumstances, to be accepted as almost conclusive as per principle laid down in Ranagappa Niyakn's case (AIR 1925 Madras 1005). It is also settled principle of law that entries in the register of birth and deaths are prima facie evidence of what is stated in them. In arriving to this conclusion I am fortified by the following judgments:‑

1. Allianz Und Suttgarter Life Insurance Bank Ltd's case (AIR 1938 Calcutta 641);

2. Bharat Basi's case (AIR 1941 Allahadad 385);

3. Manicka Mudaliar's cage (AIR 1942 Madras 129) and 4. Harpal Singh's case (AIR 1981 S.C. 361.

Certified copy of the death certificate is admissible in evidence by virtue of Article 49 of the Qanun‑e‑Shahadat Order, 1984. The presumption of genuineness is attached to the entry of death of a person recorded in death register as per principle laid down by this Court in Bhag Bhari's case (1978 C.L.C. 1543). Death certificate firstly was on record without any objection from the respondents. In this view of the matter the objection of the respondent before this Court has no force as per principle laid down by the Honourable Supreme Court in Khan Bahadar's case (1992 SCMR 1362). The contention of the learned counsel of the respondent qua the bona fide purchaser has no force in view of peculiar circumstances of present case as the property inquestion was not declared under the law as evacuee property till the target date i.e. 1‑1‑1957 by the competent. Authority. This question came up for consideration in Muhammad Yamin's case (1976 SCMR 489), where in it was held that where it was found that the vendor had not right, title or interest in the demised property no protection can be given to him on the basis of section 41 of Transfer of Property Act. The aforesaid judgment of the Honourable Supreme Court subsequently was again approved by the Honourable Supreme Court in the following judgments:‑

(i) Bashir Ahmad's case (1983 SCMR 1199); (ii) Man2oor Ahmad's case (1984 SCMR 1027) and (iii) Ijaz Ahmad Khan's case (1987 SCMR 192)

5. In view of what has been discussed above, the recommendations of the Deputy Custodian are hereby confirmed.

Q.M.H./M.A.K./R‑101/L Reference confirmed.