P L D 2002 Supreme Court 622 (PLP)

JAVED IQBAL, J.--This appeal with leave of the Court is directed against judgment dated 8-12-1996 passed by learned Single Bench of Peshawar High Court, Peshawar, whereby revision petition preferred on behalf of appellants has been dismissed and the judgment and decree dated 17-1-1989 of learned Additional District Judge, Mardan, reversing the judgment and decree dated 9-10-1982 of learned Civil Judge, Mardan, decreeing the suit of respondents/plaintiffs have been kept intact.

2. Leave to appeal was granted by this Court on 13-2-1996 which is reproduced hereinbelow to appreciate the legal and factual aspects of the controversy:-- "Leave to appeal is sought for against the judgment of learned Peshawar High Court, Peshawar dated 8-12-1994 in Civil Revision No.44 of 1989.

2. The pedigree-table of the parties is as under: Saadat Khan 1st wife

2nd wife Azmat Shahamat Manjat Khan Manjai Khan died issueless, therefore, his property devolved on Mst. Sari Jan his widow as limited owner. She died in the year 1971- and on termination of limited estate 1/4th share in the inheritance of Manjai Khan was mutated in the names of heirs of Mst. Sari Jan, which is not disputed, while the remaining 3/4th share was mutated in the name of Azmat vide Mutation No.409 attested on 29-3-1973. Petitioner, the heirs of Shahamat challenged the mutation in appeal filed before the Collector. The learned Collector remanded the case for reconsideration in Jalsa-e-Aam. Aggrieved by the said order respondents, the L.Rs. of Azmat brought a civil suit alleging that Manjai.Khan was the real brother of Azmat while Shahamat was his consanguine brother, therefore, mutation had been rightly attested and the order of remand was illegal. It was further alleged that Shahamat had predeceased Manjai Khan. Both these allegations were repelled by the petitioners in their written statement.

3. The learned trial Judge after recording evidence of the patties dismissed the suit deciding both the allegations made in the plaint against the respondents/plaintiffs. In appeal filed by the respondents the learned District Judge set aside the finding of the trial Court on the material issues, and decreed the plaintiffs' suit as prayed for in the plaint. The petitioners challenged the appellate judgment and decree in Civil Revision No.44 of 1989 which was dismissed on 8-12-1994 against which leave to appeal is prayed for.

4. The learned District Judge and the learned High Court set aside the finding of the trial Court on the ground that the pedigree-table of 1928/29 in which Shahamat is shown as consanguine brother of Manjai Khan has preference over the pedigree-table of 1895/96, in which Azmat and Shahamat are entered as real brothers while Manjai Khan is entered as consanguine brother .of both of them, on the ground that subsequent settlement record has preference over the earlier one.

5. It was contended by the learned counsel for the petitioners that there is continuous consisting entries right from the year 1894-95 showing Shahamat and Azmat as the real brothers having their property intact while Manjai Khan is shown as separate entity and having mortgaged his property from time to time. That predecessor- in-interest of respondent was a Lambardar, therefore, in the subsequent settlement record without any plausible reasons the pedigree-table has been tampered with in order to oust the petitioners' predecessor-in-interest from the inheritance in the event of termination of limited estate. That in the absence of any plausible and cogent reasons for change in the subsequent record the older record should have. been given preference. It was further contended that the respondents have in their statement clearly admitted that Manjai Khan predeceased Shahamat which admission has been ignored though they being plaintiffs were bound by such statement and had to succeed or fail on their own evidence and not on the weaknesses of the opposite side/respondents' case. Leave is granted to consider the above contentions."

3. It is mainly contended by Haji Muhammad Zahir Shah, learned Mardan resolving the controversy which escaped notice from the learned appellate and revisional Courts. It is argued that the factual aspect of the' controversy has not been appreciated properly by misreading the evidence as Azmat and Shahamat died before Manjai Khan and resultantly at the time of death of Manjai Khan his widow succeeded his inheritance. It is also argued that burden of substantiating the claim to the inheritance of Manjai Khan as to be the sole heir was on the respondents/plaintiffs which they could not discharge.

4. Mr. Abdul Samad Khan, learned Advocate-on-Record appeared on behalf of respondents and supported the judgment impugned being free from any illegality or infirmity. It is contended that the learned revisional Court after having taken into consideration all the relevant record and appreciating the evidence in accordance with settled norms of justice has arrived at a conclusion which cannot be reversed on flimsy grounds. Mr. Abdul Samad Khan, learned Advocate-on-Record also referred mutation (Exh.P3/17) which according to him was sufficient to substantiate the claim of respondents/plaintiffs. It is urged with firmness that in case of any change in the pedigree-table the appellants could have invoked the provisions as contained in section 53 of the West Pakistan Land Revenue Act, 1967 (hereinafter referred to as the Land Revenue Act) for the redressal of their grievance but they remained silent which amounts to admission. In order to substantiate his view-point reference has been made to case titled Mir Bashi v. Allah Khan (1991 SCMR 2504).

5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light. of relevant provisions of law and record of the case. We have minutely perused the judgment and decree dated 9-10-1982 passed by learned Civil Judge, Mardan, judgment and decree dated 17-1-1989 passed by learned Additional District Judge, Mardan and the judgment impugned. `We have also scanned the entire evidence with eminent assistance of the learned counsel. It is an admitted feature of the case that as per old pedigree-table prepared in 1895/96 Shahamat and Azmat were shown as real brothers and no mention whatsoever has been made regarding Manjai Khan. The case of respondents/plaintiffs revolves around the only fact that Azmat and Manjai Khan are real brothers and moreso that Manjai Khan died on 8-12-1908 and after his demise 1/3rd of the legacy will be devolved upon Mst. Sari Jan (widow) and 3/4th upon Azmat being real brother of deceased Manjai Khan. They have substantiated their claim by relying upon the pedigree-table prepared in 1925-26 and mutation entries (Exh.P/3-17). It is, however, conceded that pedigree-table of 1895-96 was substituted with a new one prepared in 1925-26 with the submission that if defendants/appellants were aggrieved from the substituted pedigree-table the same could have been challenged by invoking the provisions as contained in section 53 of the Land Revenue Act. The pivotal question which needs determination would be that who is the real brother of Manjai Khan i.e. Azmat or Shahamat. As per pedigree-table at first instance produced by respondents/plaintiffs in 1895-96 (Exh.P.W.2/10) wherein Azmat and Shahmat were shown as real brothers while Manjai Khan.was shown as their step-brother. The pedigree-table of 1895-96 was also got exhibited by Muhammad Aslam (D.W.I). The authenticity and genuineness of pedigree -table of 1895-96 went unchallenged which amounts to admission. The wrong entries if any in the pedigree-table of 1895-96 could have been got corrected even after the death of Azmat and Shahamat by their legal heirs who kept quiet for the reasons best known to them. Now it would be too late in the day to question the authenticity or validity of pedigree-table of 1895-96.

6. It is worth-mentioning that substituted pedigree-table was prepared after more than three decades and it mainly prevailed upon the learned High Court that the record prepared later in time must have been prepared with more cafe and caution. The said reasoning appears to be a conjectural presumption as nothing has come on record to show that pedigree-table of 1895-96 was prepared in a haphazard manner or without due care and caution. A drastic change regarding relation inter se has been made in the pedigree-table of 1925-26 without any obvious reasons. As per pedigree -table of 1895-96 Azmat and Shahamat were shown as real brothers which also finds corroboration from the Revenue Record. In this regard Misl-e -Haqiyat (Exh.P2/1) of 1895-96 can be referred wherein Azmat and Shahmat were shown together as real brothers and Manjai Khan did not figure in. The statement of Subhanuddin (P. W .2) coupled with the mutation entry (Exh.P.W.3/6) and (Exh.P.W.3/7) cannot be ignored. It could not be proved that Shahamat died in the lifetime of Manjai Khan and Azmat died after the death of Manjai Khan. The mutation bearing No.9409 attested on 29-3-1973 whereby appellants/defendants were deprived from the legacy of Manjai Khan being unlawful was rightly set aside by the Collector.

7. It is to be noted that pedigree-table is not a routine document and no deletion, addition, amendment and insertion could be made without lawful justification and that too on the basis of concrete evidence proving that the existed entries in the pedigree-table were not correct. There is no cavil with the proposition that pedigree-table is a part of 'Record of Rights' and its antiquity would be no ground for its change and pedigree-table prepared later in time cannot be given preference. It is worth-mentioning that with the I(, passage of time nature of land, its price, importance and ownership may be changed but the time factor would totally be irrelevant having no bearing whatsoever on inter se relationship of the parties shown in the earlier pedigree-table. The real brothers will remain as such irrespective of the fact whether pedigree-table was old or substituted with a new one as a real brother cannot be converted into step-brother. There is no denying the fact that "the presumption of truth under section 52 of the West Pakistan Land Revenue Act is not confined to entries made in Record of Rights prepared under that Act, but also to entries made in Record of Rights prepared under any Settlement made even before the enactment of the Act of 1887 vide its section 2(2), Documents like Misl-e-Bondobast or Misl-e-Haqiyat or Bandobast Jamabandi or Shart-Wajib-ul-Arz and Pedigree-table (Shajra Nasab) all carry presumption of truth". (Muhammad Khurshid v. Chief Administrator of Auqaf PLD 1973 Notes (Lah.) 38 at p.50, see also 'Commentary on Land Revenue Act' by Om Parkash Aggarwala, 4th Edn. (1950), pp.331-332, Zar Jan v. Najmun Nisa PLD 1969 Peshawar 118, Chuni Lal v. Nanda and others 174 PR 1888, Ishar and others v. Dalip Singh and others 18 IC 218, Karmun and others v. Harkishan and others AIR 1935 Lah.

87. We are conscious of the fact that such presumption is rebuttable but the genuineness and authenticity of pedigree-table was neither challenged nor rebutted and accordingly shall be presumed to be true until the contrary, is proved which could not be done.

8. The learned forums below have acted with grave illegality by not attaching the statutory presumption to pedigree-table of 1895-96 which resulted in manifest injustice. In this regard we are fortified by the dictum laid down in Zar Jan's case (supra). The genuineness and correctness of pedigree-table of 1895-96 is not liable to be disturbed by such a belated attack due to the acquisition of land and compensation. Had the land not been acquired on a handsome compensation the respondents/plaintiffs would not have bothered about the authenticity of pedigree-table of 1895-96. The pedigree-table of 1895-96 being part of 'Record of Rights' cannot be varied merely on the ground that it was substituted with a pedigree-table prepared later in time as such substitution would have no substantial bearing on validity of the old pedigree-table. We have also pointed out in the preceding paragraphs that the pedigree-table of 1895-96 being part of "Record of Rights" which remained in existence for more than three decades could not have been altered without sufficient lawful justification which is lacking in this case. In this regard we are fortified by the dictum laid down in the following authorities:-- Mir Bashi v. Allah Khan 1991 SCMR 2504; Mst. Bhag Bhari and others v. Mst. Bhagan and another PLD 1954 Lah. 365; Allah Dad v. Muhammad Ali and others PLD 1956 Lah. 245; Whadera Allah Diwaya Khan v. The Custodian, Evacuee Property, West Pakistan, Lahore and others PLD 1965 Lah. 535; Ghulam Rasul and others v. Sardar Muhammad Ashraf Khan and others PLD 1955 Rev. (Pb.); 56; Mst. Allah Rakhi v. Murid Hussain Shah and others PLD 1955 BJ 17; Settlement Manual by Sir. James M. Douie (6th Edh.); Dakas Khan and others v Ghulam Kasim Khan and others (1918) 48 IC 473; Mst. Lali v. Murli Dhar 33 IA 97 at p.101; 8 Bom. LR 402; 3 AU 415; 10 CWN 730; 3 CU 594; 28 A. 488; 1 MLT ,171 (PC); Chhote Khan and others v. Mal Khan and others AIR 1954 SC 575; Raja Rajinder Chand v. Mst. Sukhi and others The State of Punjab, Intervener AIR 1957 SC 286 and Avadh Kishore Dass v. Ram Gopal and others AIR 1979 SC 861.

9. In the light of foregoing discussion the appeal is accepted and the impugned judgment is set aside. The judgment and decree dated 9-10-1982 [~ passed by learned Civil Judge, Mardan, is hereby restored with no order as to costs. Q. M. H. /M. A. K./N-60/S Appeal allowed.