LAL HUSSAIN vs Mst. SADIQ and anothers

ORDER

' QAZI MUHAMMAD FAROOQ, J.---This petition for leave to appeal is directed against the judgment dated 17-5-1999 of a learned Single Judge of the Lahore High Court, Rawalpindi Bench whereby the respondents' revision petition was accepted and the petitioner's suit was dismissed.

2. The revision petition had arisen from the judgment and decree dated 15-9-1987 of the 'learned Additional District Judge, Attock, affirming the judgment and decree dated 7-4-1987 of the learned Civil Judge, Attock, by which the petitioner's suit for possession of the estate of his deceased brother Roshan Din was decreed.

3. Roshan Din was real brother of the petitioner and Hassan Din, predecessor-in-interest of the respondents. He was presumed to have died having not been heard of for many years and his Inheritance Mutation bearing No,2868 was attested in favour of the petitioner on 7-3-1984.

However, the appeal tiled by the respondents was accepted by the Collector, Attock and the case was remanded with the result that the order of attestation of the mutation was modified on 13-11- 1984 in the manner that the estate of Roshan Din was equally divided between the petitioner and the respondents. Thereafter, the parties took possession of their respective shares. Feeling aggrieved the petitioner filed a suit on 3-9-1985 for possession of the land allotted to the respondents on the ground that he was the sole legal heir of Roshan Din and the order of modification of Inheritance Mutation No,2868 attested in his favour having been passed unilaterally and without an inquiry about the entitlement of the respondents was ineffective on his rights. The suit was resisted by the respondents on the ground, inter alia, that the inheritance mutation in question had been rightly modified as Roshan Din had died about fourty years ago and was survived by the petitioner and their predecessor-in-interest Hassan Din. The suit was decreed by the learned trial Court and the appeal filed by the respondents was dismissed by the learned first appellate court. The revision petition preferred by the respondents was, however, accepted by the High Court and the petitioner's suit was dismissed.

4. Syed Muhammad Ayub Bukhari, Advocate Supreme Court, learned counsel for the petitioner contended with vehemence that it was abundantly clear from the evidence on record that the petitioner alone was entitled to inherit the estate of his brother Roshan Din and the High Court had set aside concurrent findings of fact recorded by the two Courts below without any cogent reason.

5. The fate of the case hinges on the interpretation of Article 124 of the Qanun-e-Shahadat Order, therefore, it will be pertinent to reproduce the same, which reads as follows:-- "124. Burden of proving that person is alive who has not been heard of for seven years.<.u>--When the question is whether a man is alive or dead, and it is Koved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it."

6. The petitioner's suit was decreed by, the learned trial Court for the reasons that Roshan Din was unheard of since 1947; his inheritance had opened seven years before the date of attestation of Inheritance Mutation No,2868 or 3-9-1985 when the suit was filed and the respondents were not entitled to get any share out of his estate as their predecessor-in-interest Hassan Din had died in the year 1974. The revision petition was allowed by the High Court with the following observations:-- ' "If the respondent wanted an exclusive share in the inheritance of Roshan Din, then it was incumbent upon him to prove by positive evidence that Roshan Din had died after the death of Hassan Din which as mentioned above occurred on 1-11-1974. This evidence is conspicuously missing in the present case with the consequences that in order to determine the inheritance of the parties, the presumption of Article 124 would be relevant and Roshan Din would be presumed to have died on the lapse of seven years from 1947, admittedly when Hassan Din, the predecessor-in- interest of the respondent was alive. Resultantly on the lapse of above period, the respondent and Hassan Din became entitled to the inheritance of estate of Roshan Din and after the death of Hassan Din, the petitioners were equally entitled to half share which have devolved upon their father."

7. It is common ground between the parties that Roshan Din is unheard of since 1947. The provisions of Article 124 of the Qanun-e-Shahadat Order are thus, fully attracted and there is a presumption of law that he is dead. However, the date of his death is not discernible from the record, therefore, the point for determination is whether his inheritance had opened seven years after 1947 or before the attestation of Mutation No,2868 or. Institution of the petitioner's suit. The point can be conveniently determined in the light of the provisions of Article 124 of the Qanun-e-Shahadat Order and its interpretation made in Muhammad Sarwar and another v. Fazal Ahmad and another PLD 1987 SC 1.

Article 124 of Qanun-e-Shahadat Order clearly spells out that where a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive the burden of proving that he is alive is on the person who affirms it. In the case of Muhammad Sarwar and another (supra) it was held that section 108 of the Evidence Act, 1872 (Article 124 of Qanun-e- Shahadat Order) merely creates a presumption that the person who has not been heard of for seven years is dead at the date of the filing of the suit and does not refer in any way as to the date of his death which was to be proved by positive evidence. Roshan Din was admittedly real brother of the petitioner and Hassan Din, predecessor-in-interest of the respondents. The petitioner's claim that he is the sole legal heir of Roshan Din goes a long way to suggest that Roshan Din was alive at the time of death of Hassan Din which occurred in the year 1974. He was thus obliged to prove by positive evidence that Roshan Din was alive in the year 1974 and had died after his brother Hassan Din but he singularly failed to do so. The evidence adduced by him consists of his solitary statement which is too bald and incoherent to be termed as positive evidence with regard to the date of death of Roshan Din. In the absence of positive evidence about the date of death of Roshan Din the period of seven years envisaged by Article 124 of the Qanun-e-Shahadat Order is to be reckoned from the undisputed year of disappearance of Roshan Din i.e, 1947. It would thus follow that the inheritance of Roshan Din had opened in the year 1954, when Hassan Din was alive, and devolved on the petitioner and Hassan Din (predecessor-in-interest of the respondents) in equal shares. The impugned judgment is, therefore, unexceptionable. Consequently, the petition is dismissed and leave declined.