Mst. SARWAR BIBI Versus Mst. MANZOORAN (deceased)
AMIN-UD-DIN KHAN, J.--- Through this civil revision petitioners have challenged the judgment and decree dated 18.12.2003 passed by learned Additional District Judge whereby appeal filed by the respondents was accepted and judgment and decree dated 23.1.2003 whereby suit filed by the petitioners-plaintiffs was decreed, has been set aside.
2. Brief facts of the case are that plaintiffs-petitioners on 7.8.1998 filed a suit for declaration that they are entitled to inherit the property left by Muhammad Afzal being his uterine sisters and defendants are not entitled to inherit him. Written statement was filed, suit was contested. Learned trial court framed the issues, invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. After closing of trial learned trial court vide judgment and decree dated 23.1.2003 decreed the suit. Appeal was preferred and learned first appellate court accepted the appeal and set aside the judgment and decree passed by the learned trial court and dismissed the suit. Hence, this civil revision.
3. Learned counsel for the petitioners argues that it was Nazir Hussain, who got recorded the mutation of inheritance No. 1757 of 1990 of propositus Afzal son of Muhammad which was attested on 7.8.1990. Parties contested before the Revenue Officer and the mutation was attested in accordance with Muhammadan Law whereby both the uterine sisters of the deceased were given half half share and no one other was entitled to inherit him. States that afterwards Nazir filed appeal before the Assistant Commissioner which was dismissed and the said Nazir filed a revision before the Additional Commissioner (Revenue), Sargodha who accepted the revision vide order dated 25.4.1993 and directed the parties to go to the Civil Court. States that revision was preferred by the petitioners before the Board of Revenue but failed, therefore, filed the suit. Learned counsel states that uterine sisters were entitled to inherit the deceased and defendant Nazir being the distant kindred was not entitled to inherit him, therefore, states that mutation was rightly attested and the learned trial court has rightly decreed the suit but the learned first appellate court has wrongly reversed the findings recorded by the learned trial court.
4. On the other hand, learned counsel for the respondents supports the findings recorded by the learned first appellate court by arguing that well-reasoned exhaustive findings have been recorded by the learned first appellate court, therefore; there is no substance in this civil revision and further that the plaintiffs-petitioners failed to prove their relationship with the deceased which was required to be proved in accordance with the Qanun-e-Shahadat Order, 1984 but no witness to prove the relationship has been produced, therefore, the learned first appellate court has rightly dismissed the suit. Prays for dismissal of the civil revision.
5. I have heard learned counsel for the parties at length and have gone through the record and case law on the subject.
6. Facts in series are that there is Rapt No. 418 dated 7.5.1990 (Exh.P.1) allegedly by Nazir Hussain, for entrance of the mutation of inheritance of deceased Muhammad Afzal. Mutation No. 1757 was recorded and according to the order passed by the Revenue Officer, Mst. Sarwar Bibi and Mst. Zohran Bibi (petitioners) being the uterine sisters of deceased Muhammad Afzal, who was admittedly issueless, whole of the property was given to the said uterine sisters of the deceased. The proceedings of the mutation recorded by the revenue officer show that learned counsel for the petitioners as well as Nazir Hussain etc. appeared before the Revenue Officer. After passing of mutation Nazir Hussain, Mst. Ameeran and Mst. Gulab Bibi filed an appeal before the court of Assistant Commissioner/Collector wherein they have stated that Mst. Bakhtan mother of the present petitioners was never married to Muhammad, father of deceased Muhammad Afzal and it was further mentioned that even if the present petitioners are uterine sisters of the deceased, they can inherit 1/3rd of the property left by the deceased and remaining 2/3rd shall go to Nazir Hussain, Mst. Ameeran and Mst. Gulab Bibi being the children of Mst. Fatima, being children of grandfather's sister of the deceased and pleaded that principle of "Radd" has been wrongly applied by the Revenue Officer. It will not be out of place to mention here that in the appeal Nazir Hussain has not denied recording of Rapt on his behalf as well as he has not denied very participation in the proceeding conducted by the Revenue Officer while passing the mutation. Learned counsel for the petitioners has also argued the case which was pleaded in the appeal, copy of which has been produced as Exh.P.7. The appeal was dismissed vide order dated 1.4.1991. Revision was filed before the Additional Commissioner by Nazir Hussain etc. Copy of which has been produced as Exh.P.8. In this petition also the case of Nazir Hussain etc. is that Assistant Commissioner Grade-I was bound under the law to refer the matter to the Civil Court as complicated question of inheritance was involved in the matter. The Additional Commissioner accepted the revision and cancelled the mutation which order was challenged before the Board of Revenue. Copy of order of Board of Revenue is Exh.P.11.
7. I have noticed that in the written statement there is evasive denial from the relationship pleaded in the plaint and the facts narrated therein. When PW-1 Akbar Hayat, Ex-Tehsildar, who attested the mutation in dispute bearing No. 1757 appeared before the Court, made a clear statement with regard to attestation of mutation. On the material points he has not been cross-examined by the respondents-defendants' side, therefore, portion of statement which relates to the material facts which has not been cross-examined, under the law it is presumed that the other party accepts that fact. Light can be taken from the judgment passed by this Court reported as " Mst. Manzoor Mai v. Abdul Aziz " (1992 CLC 235). Same is the position of PW-2 Ghulam Qasim, who was Halqa Patwari at the time of entering the impugned mutation. He clearly stated that he mentioned the pedigree table on the statement of Nazir Hussain. He has also not been cross- examined on the point that Nazir Hussain has not stated pedigree table mentioned on the impugned mutation. When defendant could not rebut the correctness of pedigree table incorporated in the mutation, therefore, the document has full evidentiary value in the light of judgment passed by august Supreme Court of Pakistan reported as " Abdul Ahad and others v. Roshan Din and 36 others " (PLD 1979 Supreme Court 890). When it is established that pedigree table was got recorded by Nazir Hussain, subsequently he cannot be permitted to take "U" turn. Light can be taken from the judgment of August Supreme Court of Pakistan reported as " Major (Retd.) Barkat Ali and others v. Qaim Din and others " (2006 SCMR 562).
PW-6 Haji Ghulam Muhammad, who is a witness and attested the parties as member "baldia", Jandanwala, made a clear statement in favour of the plaintiffs with regard to attestation of the mutation and on question put to him in the cross-examination he replied that he does not know that Haider contracted any other marriage, which shows that the marriage of Haider with Mst. Bakhtan, the divorcee of Muhammad, has not been denied. Even no suggestion has been put to this witness that pedigree table on the mutation was not got recorded by Nazir Hussain. Even this witness has also not been cross-examined on the material points. As Nazir Hussain died, he never appeared in the witness-box, his son Khurshid Ahmad appeared and the other witness DW-2 was produced by the defendants whose statement is meaningless as he is 41 years of age at the time of making the statement. The crux of the evidence and the proceedings on the revenue side is that it is clear that the Rapt was got recorded by Nazir Hussain defendant himself and the mutation on the basis of Rapt was also recorded on his statement and pedigree table was also prepared on his statement. It seems that at the time of recording the pedigree table he was of the view that after giving the share of the property of Muhammad Afzal to the plaintiffs as his uterine sisters, the rest of the property will devolve upon him and his two sisters but when the Revenue Officer attested the mutation in accordance with law and whole of the property left by Muhammad Afzal devolved upon the plaintiffs, then he changed his stance and denied the relationship of the plaintiffs with Muhammad Afzal. Even in his pleading before the Revenue hierarchy it was his case in the alternate that even if plaintiffs are uterine sisters of the deceased even then uterine sisters can inherit 1/3rd and 2/3rd will be inherited by him and his two sisters being the grandfather's sister's children of the deceased as distant kindred. It is not on the record that why the mutation was entered and attested in favour of the plaintiffs ladies when the case pleaded now by Nazir that the ladies were absolutely not related to the deceased, the fact that how the stranger ladies can be entered as legal heirs of a deceased and a mutation is passed in their favour, this fact was to be rebutted by the defendants, which they miserably failed to rebut.
8. As I have discussed the evidence, when there is a clear statement of the Patwari, who recorded the Rapt as well as the Revenue Officer, who attested the mutation and made statement to this effect which has not been cross-examined on the material points, which under the law are presumed to have been accepted by the other party, therefore, argument of the learned counsel for the respondents that in accordance with the Qanun-e- Shahadat Order, 1984 the relationship has not been established, has no force in the above mentioned circumstances. Light can be taken from the judgment passed by the august Supreme Court of Pakistan reported as " Muhammad Afzal and others v. Province of Punjab through Collector, Multan and others " (2001 SCMR 593).
9. Now comes the legal position that plaintiffs being the uterine sisters of the deceased are sharers and respondents are the distant kindred, therefore, the plaintiffs are entitled to inherit the deceased as sharers and rest of the property in accordance with the principles of "Radd" mentioned in Para 66 of Muhammadan Law by D.F. Mulla, which is reproduced for ready reference:-
"66. Return (Radd).--- If there is a residue left after satisfying the claims of Sharers, but there is no Residuary; the residue revert to the Sharers in proportion to their shares. This right of reverter is technically called "Return" or Radd." therefore, nothing will left for distant kindreds.
In this situation I have noticed that the findings recorded by the learned first appellate court are in clear ignorance of the material evidence discussed above. In this view of the matter, this civil revision is allowed, the findings recorded by the learned first appellate court are not sustainable under the law, therefore, same are reversed and it is declared that the Mutation No. 1757 has been correctly attested by the Revenue authorities and cancellation of the same by the Additional Commissioner was not legal one. Decree passed by the learned trial court is restored with costs throughout.
ZC/S-106/L Revision allowed.