2021 PLP 1269 (CLC)

CH. MUHAMMAD MASOOD JAHANGIR, J.

Vide this single judgment, this Court proposes to decide instant file as well as connected Civil Revisions Nos. 131, 1742 and 1743 of 2004 arising out of common judgments of learned lower fora involving identical questions of fact/law, however, for reference, the source point will be instant file.

2. The facts have already been detailed in the impugned judgment of the learned District Judge, however, to streamline those, briefly, there were two properties; the one measuring 213 Kanals, 10 Marlas falling in the revenue estate known as Daiwal (presently District Khushab) and the second area measuring 430 kanals 15 marlas in Chak No.29/GB, Tehsil and District Sargodha. The first property was ancestral, which lastly and exclusively devolved upon Ali Muhammad forefather of the parties, whereas the second one being State land also allotted to him under Mule Breeding Scheme. He passed away about century ago and ownership of the ancestral property solely devolved upon his son Sahib Khan, who also inherited tenancy rights of the State land. It was admitted fact that Mst. Ghulam Zainab was sole daughter of Sahib Khan out of his wedlock with Mst. Sardaran. The owner/allottee Sahib Khan died on 19.01.1934, which caused genesis of litigation. The widow, Mst. Sardaran as well as daughter Mst. Ghulam Zainab jointly instituted suit qua ancestral property of District Khushab against collateral of Sahib Khan asserting that the latter was follower of Shia sect and they being widow as well as daughter were solely entitled to inherit his whole estate. This suit after full-fledged trial lastly dismissed on 14.10.1965 (Exh.D-5) and with regard to that property stood final among its contestants.

3. As far as, the second property is concerned, admittedly it was not only re-allotted to Mst. Sardaran, widow of Sahib Khan, rather its proprietary rights conferred solely upon her as well, thus she became its exclusive owner in January, 1961 through attestation of conveyance deed (Exh.P-16). Mst. Sardaran subsequently passed away on 22.10.1978 (Exh.P-15) and survived by sole daughter Mst. Ghulam Zainab, (predecessor-in-interest of the present civil revisioners), who in her lifetime, instituted declaratory Suit No.1076 of 1978 on 28.11.1978 and claimed devolution of the entire estate being sole legal heir while asserting that her parents; Sahib Khan and Mst. Sardaran were followers of Shia sect. Out of the defendants, Sardara, who was not only the first cousin of Sahib Khan, but also the husband of his sister defended the suit; pleading that parents of Mst. Ghulam Zainab, plaintiff were Sunni by faith, whose proper and should be devolved in accordance therewith.

4. As a matter of record, after the death of Sardara, his son Ghulam Haider (predecessor of respondents Nos. 1 to 5) instituted rival suit against Mst. Ghulam Zainab on same lines and pleas of his father Sardara already agitated by him in the written statement. Whereas, third suit was filed by Ghulam Habib (ascendant of respondents Nos.9 to 13), real brother of Mst. Sardaran wife of Sahib Khan, seeking declaration to the effect that she was Sunni, as such claimed co-ownership along with his niece/plaintiff. Admittedly, at one stage, this suit was withdrawn, however subsequently respondents Nos.9 to 13 instituted fresh one. Having faced with divergent pleadings of three suits, ultimately, the Trial Court materialized issues as under:-

1. Whether the suit is not maintainable in its present form? OPD.

2. Whether the suit is barred by the principle of res-judicata? OPD.

3. Whether Sahib Khan deceased was Shia, if so, its eject? OPP.

4. Whether Mst. Sahib Khatoon was alive at the time of death of Sahib Khan deceased? OPD-2.

5. Whether Sahib Khatoon was sister of Sahib Than deceased? OPD-2.

6. Whether Ghulam Haider defendant No.2 is son of Mst. Sahib Khan? OPD-2. 6-A. Whether the property has been incorrectly described in the plaint, if so, what is the correct description? OPD. 6-B. Whether the plaintiff is entitled to special costs? OPP. 6-C. Whether the suit has been incorrectly valued for the purposes of court fee and jurisdiction? OPP. 6-D. What is the effect of decree dated 14.10.2965? OPD-1 and 2. 6-E. Whether Mst. Sardaran deceased was Shia, if so its effect? OPP. After evaluating the evidence so led by the respective parties in pros and cons, the suit of Mst. Ghulam Zainab (predecessor of petitioners) decreed and that of Ghulam Haider as well as Ghulam Habib dismissed through independent judgments of 24.09.1984, but all the three suits remanded by the learned District Judge on 24.03.1985 to the learned Civil Court for fresh decision after consolidation. In post remand proceedings, although decision was again rendered partially in favour of Mst. Ghulam Zainab, but for technical reason it did not sustain and the learned Additional District Judge once again remanded the lis vide judgment dated 10.10.1987. In next round, the learned Civil Court through judgment dated 12.03.2001 returned its findings only on issue No.6-E in favour of Mst. Ghulam Zainab, whereas rest of the issues were not answered, compelling learned Appellate Court below to remit back the suit for another time on 27.03.2002, but this time, it having been checked by this Court through Civil Revisions Nos.1243 and 1261 of 2002 on 18.12.2003, the appeals were sent back to the learned District Judge to himself decide the same on the basis of evidence already available on lis file. In compliance thereof, the learned Appellate Court allowed the appeal of Muhammad Nawaz etc. (respondents Nos.1 to 5), whereas two appeals of Noor Hussain and others (respondents Nos.9 to 13) were dismissed. Through the same decision, the cross-objections of Mst. Ghulam Zainab/original plaintiff were also rejected while deciding issue No.6-E in terms that Mst. Sardaran was Shia by faith and her inheritance would open as per Shia law of inheritance. This part of the said impugned judgment has been challenged by respondents Nos.9 to 13 vide connected Civil Revisions Nos.1742 and 1743 of 2004. Through second part of the impugned judgment, the learned District Judge concluded that suit land was not wholly titled by Mst. Sardaran, but she was limited owner and reverted it to legal representatives of last male owner (Sahib Khan). These findings being offended to the petitioners (the descendants of original plaintiff Mst. Ghulam Zainab) have been challenged through petition in hand. The next Civil Revision No.131 of 2004 has been filed by respondents Nos.1 to 5 to seek inheritance being successors-in-interest of Mst. Fazlan and Sahib Khan. This shows that none of the parties was satisfied with the impugned decision and although it was easy to remand these matters for such count when some out of them were also willing thereto, but this Court keeping in view agony of litigation being faced by the parties for the last four decades opted to decide these petitions on merit.

5. Arguments heard.

6. As discussed in detail, there are two aspects of the litigation; the first, whether Mst. Sardaran was Shia or Sunni by faith and second, whether suit property exclusively vested to her or being limited owner it was to be reverted to the last deceased male owner. In answer to first query although each time in every cycle before the learned Courts below, it was repeatedly concluded that Mst. Sardaran was Shia by sect, but since it is a matter of inheritance, the Court felt it appropriate to reconsider the entire record with the able assistance of learned counsel for the parties.

7. It is open and shut that there is not any hard and fast rule/principle of universal application to test the faith of any person, who had already passed away. To determine this intricated issue, the Court has to probe the surrounding circumstances, the life style of the departed soul, the faith of his/her nearer. The opinion of the contestants, who are in fight to get the legacy of the deceased in one way or the other, definitely is not enough to conclusively determine the sect of a person, which, of course, was his personal belief. In such circumstances, it is always difficult to determine either one was Shia or Sunni. There is no cavil that as per section 28 of Mulla's Muhammadan Law, in this part of the world, majority of the Muslims is Sunni by sect, therefore, primary presumption qua a person tilts that he is follower of Sunni faith, but it definitely is rebuttable presumption. See 'Mst. Ghulam Ayesha alias Ilyas Begum and another v. Sardar Sher Khan (deceased) represented by LRs and others' (PLJ 2006 SC 1476), 'Muhammad Bashir and others v. Mst. Latifa Bibi through LRs' (2010 SCMR 1915) and 'Mst. Chanani Begum (deceased) through LRs v. Mst. Qamar Sultan' (2020 SCMR 254). In the latter judgment, para No.7 to this effect being relevant is reproduced hereunder:- 'As to submission of Mr. Paracha ASC regarding initial presumption of once faith as being 'sunni', no doubt that in Indo Pak Sub continent majority of Muslims are Sunni by faith, therefore, there is initial presumption that the parties to the proceedings are Sunni however, such initial presumption is rebuttable and for this reason this Court in the case of Muhammad Bashir (supra) held that no principle of universal application is available to determine the faith of a person which should be determined keeping in view the surrounding circumstances, the way of life, the parental faith and faith of other kith and kin. Consequently once the faith of person is challenged the question of the initial presumption loses its sanctity and is to inferred from the facts creating presumption or the surrounding circumstances one way or the other.' In support of her stance on behalf of Mst. Ghulam Zainab, the original plaintiff, nine witnesses (PWs 1 to 9) were produced, who consistently stated that Mst. Sardaran was the follower of Shia sect and some receipts were also brought on record to prove that in performance of her such affairs, she was regularly paying subscription/donation to the Imam Bargah. They also tendered in documentary evidence copies of Death Entries (Exh.P-14) of Ghulam Habib, (the rival contestant of the plaintiff) and Exh.P15 that of late Mst. Sardaran to prove that they were disciple of Shia sect. In contra, to substantiate Sunni sect of the deceased lady, only oral evidence was produced. Although, the copies of Death Entries of Sahib Khatoon, Mst. Fazlan and Ghulam Haider (Exhs.D-2 to 4) were also exhibited, but with regard to sect of said deceased nothing was mentioned therein, as such not enough to rebut the entries of Death Certificates tendered on behalf of the plaintiff, wherein the deceased were specifically mentioned as followers of Shia faith. A close scrutiny of Exhs.P-14 and 15 revealed that those were promptly recorded at the move of Chowkidar of the village. Out of these documents, the Death Certificate (Exh.P-15) relating to Mst. Sardaran, whose legacy disputed, was of much importance, which was never challenged prior to institution of suits or through contents thereof, even when it was brought on record and that being part of public record within the meaning of section 74 of the Evidence Act, 1872 (Article 85 of the Qanun-e-Shahadat Order, 1984), was admissible in evidence. See Jai Bhagwan v. Gutto and others (AIR 1934 Oudh 167) and Mst. Anwari Jan v. Baldua and another (AIR 1936 Allahabad 218). It was again a hard fact that at the time of exhibition of this important document, no objection was raised by the adversary. It is well established by now that a document having been produced and tendered without objection cannot be challenged subsequently, rather its admission in evidence also dispensed with the requirement of its formal proof. It was observed by the Privy Council in Gopal Das v. Shri Thakurji (AIR 1943 PC 83) that:- "where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial." These observations were further followed in Abdullah and others v. Abdul Karim and others (PLD 1968 SC 140). The veracity of Exh.P-15 also cannot be doubted because it was duly recorded within four days of the departure of Mst. Sardaran on the report made by Raja Chowkidar, who was an independent person and his action being impartial cannot be simply ruled out. The sufficient documentary proof was brought on record by Mst. Ghulam Zainab, whereas nothing in rebuttal adduced. It is well established law that documentary evidence excludes the oral one. No doubt some receipts were also brought on record to substantiate that Mst. Sardaran being Ahl-e-Tasheeh" was in the habit of depositing donation to the Imam Bargah, but did not feel it to be conclusive proof. However, the aforenoted copies of death entries and the statements of witnesses examined on behalf of both the parties, whereby it was concluded that funeral prayer of Mst. Sardaran was also offered as per Shia sect, were sufficient proof that civil revisioners of this petition successfully rebutted presumption so attached and by not questioning the death entries, which being part of public documents attained presumption of correctness, stood admitted by the petitioners of other civil revisions. The additional aspect would be that in her life, Mst. Sardaran also instituted suit claiming that her husband Sahib Khan was Shia by faith and to this effect although she did not succeed, but at least to her extent, inference was there that she was follower of the said sect. Consequently, the concurrent findings of lower fora on issue No.6-E for declaring that Mst. Sardaran was disciple of Shia, are hereby confirmed.

8. As far as, the second question, whether Mst. Sardaran was exclusive owner of area devolved upon her being limited owner is concerned, although there was no specific issue, yet the learned District Judge through the impugned judgment declared her to be limited owner and in this regard, tagged Civil Revision No.131 of 2004 is also in field, as such record consulted in depth. The learned District Judge without referring any evidence might have presumed it in the light of arguments of the learned counsel for the parties. As per Conveyance Deed (Exh.P-16), the title was conferred upon Mst. Sardaran, who having paid the price secured PRs and became its absolute owner. See Ibrahim v. Mst. Rajji and others (PLD 1956 (W.P.) Lahore 609). The learned District Judge, thus, failed to appreciate that thereafter it was not a case of devolution to the female from a last male holder under sub-para (a) of subsection (1) of Section 31-A of the Colonization of Government Lands (Punjab) Act, 1912 nor the possession covered by sub-clause (b) thereof, rather her case was covered by subsection (2) of section 30-A of the said Act, which is reproduced as under:- (2) Nothing herein contained shall be construed to alter the law of succession applicable to any female tenant, in respect of proprietary rights in land acquired by her, if the tenancy in such land was acquired by or accrued to her in circumstances other than those specified in subsection (1). The bare perusal impacts that nothing contained in the said section shall be construed to alter the law of succession applicable to any female tenant, in respect of PRs in land acquired by her. See Nizam Din and others v. Amir and others (1989 SCMR 1958). Thus, learned District Judge failed to take into notice the distinction between section 30-A and the provisions reproduced hereinabove, as such his findings to this effect being not sustainable are reversed.

9. For the above reasons, all the connected Civil Revisions are dismissed, whereas the one in hand is allowed, impugned judgment is partly set aside and suit decreed while holding that Mst. Sardaran mother of Mst. Ghulam Zainab (the original plaintiff) was follower of Shia sect and the latter was entitled to inherit the entire land exclusively vested/devolved to her mother. No order as to costs., MH/N-34/L Order accordingly.