2020 PLP 2006 (CLC)

MUHAMMAD NAEEM ANWAR, J.

This single judgment in the titled Civil Revision shall also decide CR No.958-P/2014 "Malik Sikandar Shah and others v. Abdul Qayyum and others" and CR No.173-/2015 "Abdul Akbar v. Government of Khyber Pakhtunkhwa through Collector Kohat, as all these positions are arising out of consolidated judgment in Civil Appeals bearing Nos.49, 55, 12 and 13, decided on 25.9.2014 by the learned Additional District Judge-IV, Kohat.

2. Variegated background and facts of these petitions are that, respondents Nos.52 to 62 have filed Suit No.34/1 on 30.02.2010 seeking therein, declaration that they being the legal heirs of Sheikh Ishaq son of Sheikh Kareem Dad, are hisadar owners in possession of property consisting upon 684 Khasra numbers measuring 69342-Kanal and 5-Marla, Shamilat Deh of the Estate of Ziarat Allah Dad of Tehsil and District Kohat, vide extract of the Jamabandi for the year 2005-06, to the extent of 1/5th or 6/30th shares on the plea that, at the time of death of "Sheikh Kareem Dad", his five sons Sheikh Ishaq, Sheikh Ajaib Din, Sheikh Imam, Sheikh Qutab and Sheikh Abdul Razzaq were alive and, as such, each one of them was entitled to get 1/5th share of the property left behind by their predecessor "Sheikh Kareem Dad"; the entries in the revenue paper of 1/30th share instead of 1/5th share are against the facts, law, Sharia and are unjust. Besides the above, the entries in the revenue papers for the year 1876-77 regarding "Sheikh Ishaq", the predecessor in interest of the plaintiffs/respondents Nos.52 to 62 as "Subscribente Privigno" (step son of Karim Dad) or "PARKATA" is unjust, unwarranted, groundless, and founded, unsupported and uncorroborated, hence, liable to be corrected as "Sheikh Ishaq son of Karim Dad".

3. In similar fashion, respondents Nos.1 to 51 have filed a suit No.371/1 on 05.3.2009 seeking declaration under section 42 of Specific Relief Act, 1877 read with section 53 of the Land Revenue Act, 1967, to the effect that Sheikh Kareem Dad had contracted four marriages and his legal heirs from each wife were in accordance with the Pedigree table, such as, from first there were five sons from whom three died issueless, from second wife one son, from third wife one son and fourth one was issueless. The plaintiffs/petitioners are the descendants of sheikh Abdul Razaq (from third wife of Sheikh Kareem Dad. It was contended that Sheikh Kareem Dad son of Allah Dad was the owner of Shamilat Deh of the Estate of Ziarat Allah Dad of Tehsil and District Kohat, on whose death, his proprietary-ship was devolved upon all seven (07) sons in equal shares, such as, each of them was given 4/30th share and as such 28/30 shares were distributed, while one share was given to Sheikh Ajaib Din as "Mashrana" and one was given to Sheikh Ishaq as maintenance, being stepson of Sheikh Kareem Dad. Three sons of Sheikh Kareem Dad died issueless, whose shares were distributed amongst all the remaining sons of Sheikh Kareem Dad, but the predecessor in interest (Sheikh Abdul Razzaq) was deprived / disinherited from the legacy of issueless sons of Sheikh Kareem Dad, which is against the law, facts, and is the result of collusion of revenue officials and other sons of Sheikh Kareem Dad, which is ineffective upon their rights.

4. Both the suits were contested by the respective defendants of each suits on various legal and factual objections. Suits were consolidated, and issues were framed by the learned trial court. Consolidated Issues:- 1) Whether the plaintiffs of both the suits have got a cause of action? 2) Whether both the suits are within time? 3) Whether both the suits are bad for misjoinder and non-joinder of necessary parties? 4) Whether both the suits are competent in its present form? 5) Whether the plaintiffs of Suit No 137/1 titled Abdul Akber v. Government is wrong and baseless to the extent of pedigree table is of late Sheikh Kareem Dad the predecessor of parties? Defendants Nos. 8 to 17 are the legal heirs of late Sheikh Kareem Dad from fourth wife? 6) Whether deceased Sheikh Shams-ud-Din, Sheikh Abdullah and Sheikh unknown sons of late Sheikh Kareem Dad were died issueless and their shares in the disputed property were wrongly transferred by the predecessor of defendants Nos. 3 to 6 in their favour? 7) Whether the plaintiffs of Suit No.34/1 titled Abdul Qayum and others v. Provincial Government and others are owners of 1/5th shares in the suit property being legal heirs of late Sheikh Ishaq son of Sheikh Kareem Dad and entry in revenue record to the extent of 1/3rd share is wrong based on fraud and illegal? 8) How many legal heirs were left by Sheikh Kareem Dad? 9) Whether the plaintiffs of both the suits are entitled to the decree as prayed for? 10) Relief.

5. After conclusion of trial, learned trial court partially decreed the Suit No.34/1, whereas Suit No.371/1 was dismissed. Respondents Nos.52 to 62 plaintiffs of Suit No.34/1 filed Civil Appeal No.23 against the partial dismissal of their suit. Petitioners of instant revision petition and petitioner No.1 of C.R. No.958-P of 2014 filed C.A No.49, whereas plaintiffs of Suit No.371/1 filed appeal No.12, and defendant No.3 of Suit No.34/1 filed Civil Appeal No.55. The learned Appellate Court, through consolidated judgment and decree, dismissed all the appeals, hence, these three civil revisions, however, the plaintiffs of Suit No.34/1 (respondent No.52 to 62) herein not filed Civil Revision against the dismissal of their appeal. 5(sic). Arguments heard and with the valuable assistance of learned counsel for the parties record perused.

6. The plaintiffs of Suit No.371/1 are the descendants of Sheikh Abdul Razzaq, who was the son of Sheikh Kareem Dad from third wife, (the petitioners of CR No.173/20150. Their claim is of twofold; (a) The claim equal distribution of the share of issueless son of Sheikh Kareem Dad amongst four sons namely Sheikh Ajaib Din, Sheikh Imam, Sheikh Qutab and their encestor namely Sheikh Abdul Razaq. (b) Exclusion of Sheikb Ishaq from the legacy of Sheikh Kareem Dad being his stepson from fourth wife." For their first contention, they rely on the entries of revenue papers, where regarding Sheik Ishaq it was mentioned as "Stepson" (Subscribente Privigno) "PARKATA" in first-ever settlement for the year, 1876-77. However, when they produced Patwari Halqa, Muhammad Shahid as PW-2, who in his cross examination, placed on file Pedigree Table of Sheikh Kareem Dad as Ex.P.W.2/x-2, according to which Sheikh Kareem Dad had five sons namely Sheikh Ajaib Din, Sheikh Imam, Sheikh Qutab, Sheikh Abdul Razaq and Sheikh Ishaq. He further stated that according to the Pedigree Table, Sheikh Ishaq was the real son of Sheikh Kareem Dad. He added that according to his record, no reasons were given for less share of Kandi Sheikh Ishaq and on the death of a person, his legal share get equal shares in the legacy. Plaintiffs/petitioners also produced Muhammad Daud, ADK (Additional Qanungo), who deposed that Sheikh Ishaq is the son of Sheikh Kareem Dad from his fourth wife. He also admitted that as per "Misle Haqiat" for the year, 1903-04 Ex.P.W.2/1, the disputed property (Shamilat deh of the estate of Ziarat Allah Dad) was distributed amongst five Kandies, including Kandi Sheikh Ishaq. Statement of Samiullah Khan son of Sheikh Abdul Razzaq was recorded as P.W.3, who, in his cross examination, admitted that Sheikh Ishaq was the son of Sheikh Kareem Dad from his fourth wife. This was the sole statement of plaintiffs of Suit No.371/1. As both the claims of plaintiffs were interdependent to each other and crux of both the pleas was that Sheikh Ishaq was not the son of Sheikh Kareem Dad, however, in order to upset the longstanding entries of revenue paper since 1903-04, they have got no evidence except the entries of settlement of the year 1876-77, which were, later on, corrected in the year 1903-04 and, thereafter, uptil now these entries are in existence. Admittedly, there are longstanding entries in favour of plaintiffs of Suit No.34/1, to the effect that Sheikh Ishaq was the real son of Sheikh Kareem Dad, therefore, these entries carry strong presumption of truth in accordance with section 52 of the Land Revenue Act, 1967, which, for the ready reference, is reproduced as; "

52. Presumption in favour of entries in record-of-rights and periodical records.

Any entry made in a record-of-rights in accordance with the law for the time being in force, or in a periodical record in accordance with the provisions of this Chapter and the rules made thereunder, shall be presumed to be true until the contrary is proved or a new entry if lawfully substituted therefore." The apex court in case titled "Mazloom Hussain v. Abid Hussain" reported as PLD 2008 SC 571 has held that; "

11. Where a presumption of truth is attached to a document, it cannot be discarded unless proved otherwise by convincing and cogent evidence and the burden of proof that the entries in the records of rights are wrong, is on the party who alleged it. Reliance can be placed in this context on the cases of Sundar Singh v. Chhajju Khan AIR 1934 Lahore 309 and The Evacuee Trust Property Board and others v. Haji Ghulam Rasul Khokhar and others 1990 SCMR 725.

12. The appellant has successfully, by producing oral as well as documentary evidence, established his version. The learned High Court has not adverted to the above legal aspect of the case. the reliance was placed by the learned High Court on the case of Karim Bakhsh v. Zulfiqar 1977 SCMR 334 which is distinguishable, from the present case in as much as it was with regard to the presumption if correctness attached to the entries in khasra gardwari, wherein it was held by this Court that presumption of correctness is not attached to the Khasra Gardawari unlike those appearing in the jamabandis. The case is not applicable to the proposition in hand." Likewise, the apex Supreme Court of Pakistan in case reported as "Hakim Khan v. Aurangzeb and others" (1979 SCMR 623) have held that; "The entires in Jamabandis, as is obvious, carried a statutory presumption of truth under section 44 of the Punjab Land Revenue Act XV of 1887 and section 52, West Pakistan Land Revenue Act XVII of 1967. As against the aforesaid bald statement of the kind mentioned above can hardly cut any ice. In this state of affairs, the objection of non-delivery of possession factually goes away as was held in Sanaullah Fakir v. Alam Fakir and others (1) and Sahib Dad v. Muhammad Ajaib and another (2) approving Sheikh Muhammad Mumtaz Ahmad and others v. Zubaida Jan and others (3)".

7. Another important feature of the first part of declaration of Suit No.371/1 that the property of issueless son of Sheikh Kareem Dad ought to have been equally divided amongst all the sons who were alive at that time. Undisputedly, plaintiffs of Suit No.371/1 (Abdul Razzaq) were from the third wife, whereas, from the first wife, Sheikh Kareem Dad had five sons as (1) Sheikh Ajaib Din, (2) Sheikh imam, (3) Sheikh Shams, (4) Sheikh Abdullah, and (5) Sheikh unknown; three of whom died issueless whereas Sheikh Ajaib Din and Sheik Imam Din were alive, the property of issueless brothers, would according to the Islamic inheritance, as provided in Muhammadan Law, shall be as per Par 3.4 (v) that; When there are Quranic heir or sharers and a residue of estate is left after allotting them their shares, or when there are no Quranic heir or sharers, then whatever is left in the former case, and the entire estate in the latter case, goes to the Agnatic heir or residuries." The Agnatic heirs may be classified into (i) Agnatic Descendants, (ii) Agnatic Ascendant and (iii) Agnatic Collaterals (Father's Agnatic descendants). They may be depicted in tabular form, where full brother is at Serial No.5, as Collateral Descendants of the father Full brother (a) When there co-exists a full sister, he takes double portion (b) In absence of the sister, he takes the entire Residue Whereas, consanguine brother is at Serial No.7, and as per rules of succession, the nearer in degree excludes the more remote. The plaintiffs of Suit No.371/1 are the consanguine not get any share from the property of issueless brothers of Sheikh Ajaib Din and Sheikh imam, who are real brothers and the shares of issueless brother would be distributed amongst both the full brothers. As such, the findings of both the courts below whereby they were non-suited are correct and in accordance with law.

8. Now advertising to Suit No.34/1, wherein, their prayer is of threefold; (i) Their predecessor Shekh Ishaq being the son fo Sheikh Kareem Dad were entitled to get 1/5th share from the inheritance. (ii) He was also entitled from the inheritance of issueless sons of Sheikh Kareem Dad, being their brother. (iii) The entry in revenue paper pertaining to Sheikh Ishaq as "Subscribente Privigno" Stepson "PARKATA" is unjust and unwarranted. True, though the revenue paper for the year, 1876-77, Sheikh Ishaq was shown as stepson of Sheikh Kareem Dad, however, thereafter, since 1903-04, he was properly mentioned as son of Sheikh Kareem Dad and this fact was admitted even by contesting defendants/petitioners, so, he was entitled from the legacy of his father in accordance with law. As there were total 30 "Bakhras" (unit of Shamilat Sheikh Allah Dad), which would be distributed among all the sons of Sheikh Kareem Dad, who were eight in number, such as, So, 30 Bakhras shall be distributed amongst eight sons equally. As such, for avoiding the fractions of a share least common multiple of 8 and 30 which is

120. When it is multiplied with two, it comes to

240. So, total 240 Bakhra shall be divided in eight brothers and each one of them will get 30/240th, however, from first wife, there were five sons, three of whom died issueless, whose shares are [30 + 30 + 30 = 90] shall be divided among two full brothers, whose own share are 30/240, so half of 90 = 45 shall be given to Sheikh Ajaib Din and 45 shall be given to Sheikh imam. Now total distribution of 240 Bakhras shall be as such; Sheikh Ajaib Din = 75/240 Sheikh imam = 75/240 Sheikh Qutab = 30/240 Sheikh Abdul Razzaq = 30/240 Sheikh Ishaq = 30/240 On the principle that nearer in degree excludes the more remote. Reliance is also placed on the case law reported as PLD 2018 Sindh 324, wherein it was held that;

4. As to the second ground regarding inclusion of step brother of the deceased in the list of the legal heirs, it may be noted that under the Hanafi Law of inheritance heirs can be divided into seven classes, three principal and four subsidiary classes. The three principal classes are (i) Sharers or Qur'anic heirs who are those heirs who have been named in the Holy Qur'an and have been assigned specific shares viz., husband, wife, father, true grandfather h.h.s., mother, true grandmother h.h.s., daughter, son's daughter his full sister, consanguine sister, uterine brother, and uterine sister, (ii) Residuaries or agnatic heirs who are all those persons for whom there are no specified shares and who take the residue after sharers have been satisfied or they take the whole estate if there is no sharer, and (iii) Distant Kindred or uterine heirs who are entitled to succeed only when there is no shareror residuary. The four subsidiary classes of heirs are (i) successor by contract, (ii) acknowledged kinsman, (iii) universal legatee and (iv) the State. According to Hanafi Law, in the first instance the property of the deceased goes to sharers, and if the estate is not exhausted by sharers, it goes to residuaries and if there is no sharer and/or residuary, the property is distributed amongst the distant kindred. It is to be noted that heirs nearer in degree excluded the more remote. Since step brother of the deceased was neither a sharer nor a residuary, he had no right to inherit from the estate of the deceased and as such the impugned order to the extent of grant of his share is not sustainable in law.

5. In the above circumstances, the appeal is partly allowed by setting aside the impugned order to the extent of inclusion of name of step. So, the plaintiffs of Suit No.34/1 are entitled in the legacy of Sheikh Kareem Dad but the shares of Sheikh Ishaq would be 30/240 and Sheikh Ishaq would get nothing from the shares of issueless sons of Sheikh Kareem Dad. So far as, correction of entries in the revenue papers regarding the relationship of Sheikh Ishaq with Sheikh Kareem Dad, the same has already been corrected in the revenue papers since 1903-04.

9. As the factual as well as legal aspect of the cases has properly been appreciated by the courts below and the learned counsel for all the three petitions could not point out any illegality or material irregularity or misreading and non-reading of evidence. Even otherwise, there are concurrent findings of facts before this court and in accordance with the dictum as laid down by the apex Supreme Court of Pakistan that concurrent findings of courts below could not be set at naught by the High Court in accordance with Section 115 of C.P.C., 1908 unless there are gross illegality or miss-reading and non-reading of evidence, as held in case titled "Abdul Mateen Khan and others v. Mst. Mustakhia Khan" (2006 SCMR 50) that "There is no cavil to the proposition that the concurrent finding on a question of fact or mixed question of law and facts, if is found suffering from misreading or non-reading of evidence or based on no evidence or inadmissible evidence, the High Court in exercise of the revisional jurisdiction should correct the error committed by the subordinate Courts but in absence of any defect of misreading or non-reading of evidence in the concurrent finding of two courts on such question, the interference of the High Court in the civil revision would amount to improper exercise of revisional jurisdiction. This is settled law that re-examination and rappraisal of evidence is not permissible in revisional jurisdiction even if conclusion drawn by the subordinate Courts on a question of fact was erroneous. The revisional power of High Court is exercised for correcting an error committed by the subordinate Courts in exercise of their jurisdiction and mere erroneous decision would not call for interference unless it is established that the decision was based on no evidence or the evidence relied upon was inadmissible or the decision was perverse as to cause grave injustice. This is settled law that the High Court in revisional jurisdiction cannot upset the concurrent findings of fact by means of reexamination of evidence and in the present case, the perusal of record would not show misreading or non-reading of evidence brought on the record by the parties or suggest that the Court of first instance and the Appellate Court had drawn wrong conclusion from the evidence calling for interference of the High Court in its revisional jurisdiction."

10. For the reasons discussed above, this CR No.909-P/2014 and connected petitions are hereby dismissed with no order as to costs. ZC/112/P Revisions dismissed.