P L D 1960 (W (PLP)

2. The material facts giving rise to this revision petition are these : K. S. Sardar Ata Ullah Khan was a member of the Khwaneen family of Isa Khel, District Mianwali. He was the owner of a large landed estate which lay in the districts of Mianwali, Lyallpur, Sheikhupura, Karnal, Lahore, Bannu and Bahawalpur State. He had two Pathan wives, Mst. Mariam Bibi and Mst. Gul Begum, and one Syedzadi wife, Mst. Mumlakat Begum, defendant No.

17. The Pathan wives had died during his lifetime leaving behind four sons, namely, Muhammad Ehsanullah Khan, defendant No. 1, Muhammad Habibullah Khan, defendant No. 2, Muhammad Obaidullah Khan, defendant No. 4, and Muhammad Ismatullah Khan, who has since died and is represented by his legal representatives defendants Nos. 6 to

15. Sardar Ata Ullah Khan had three sons by Mst. Mumlakat Begum, namely, Muhammad Khalilulla Khan, defendant No. 3, Muhammad Nasrullah Khan, defendant No. 5, and Muhammad Ahsanullah Khan, who had died during his lifetime, leaving behind his widow, Mst. Nur Jahan Begum, plaintiff, and a daughter, Mst. Shamim Ezra, defendant No.

16. Sardar Ata Ullah Khan died on the 9th of June 1942. He was survived by his six sons named above, Mst. Nur Jehan Begum, widow of his pre‑deceased seventh son, and his widow Mst. Mumlakat Begum. The inheritance was claimed by the six sons, Mst. Nur Jehan Begum, and Mst. Mumlakat Begum. The claim of Mst. Nur Jehan Begum was hotly contested by the four sons of Ata Ullah Khan by his Pathan wives. The Assistant Collector in order to determine the relative claims of the various contestants framed three issues including the following issues:‑-- "Was Mst. Nur Jehan Begum entitled to a share equal to what her husband would have inherited if he were alive or should her minor daughter get her father's share ?" After holding an elaborate enquiry into the matter, the issue was decided against Mst. Nur Jehan Begum. But, on appeal by her, the Collector by his order dated the 4th of October 1944 decided the issue in her favour and held that she was entitled to a share equal to what her husband would have inherited if he were alive. In deciding this issue in her favour he relied on a Note at page 23 appended to the Answer, to Question No. 1 in section 5 of the Customary Law of Mianwli, 1908. In this Note it is mentioned that all tribes recognize the rights of a son's son or of his widow to share property with the sons on the death of the father. He also relied on 24 mutations‑ in support of the custom that the widow of a pre‑deceased son inherits equally with the brothers of her husband. In view of the order of the Collector, the mutation was sanctioned in favour of Mst. Nur Jehan Begum to the extent of one‑seventh share in the property. It was later incorporated in the Jamabandi. On a further appeal by the four sons of Sardar Ata Ullah Khan by his Pathan wives, the finding of the Collector was affirmed by the Commissioner, Rawalpindi Division, by his order dated the 20th of May 1950. Their revision petition was dismissed by the Financial Com missioner on the 29th of November 1951. On the 3rd of September 1954, Mst. Nur Jahan Begum submitted an application to the Revenue Officer for the partition of the land. The four sons of Sardar Ata Ullah Khan again raised the question that she was not entitled to the property and, as such, had no right to get the land partitioned. The Revenue Officer holding that the question of title was involved, directed Mst. Nur Jehan Begum to get the matter decided by a Civil Court. The matter was taken up to the Financial Commissioner, but the order of the Revenue Officer was upheld. She, accordingly, filed this suit on the 18th of September 1957, for a declaration that she was entitled to get the land partitioned. A perusal of the plaint shows that the suit is essentially based on the fact that being recorded as owner in the Record of Rights she was entitled to get the land partitioned. The defendants have reiterated their objection that she was not entitled to inherit the land. On the pleadings of the parties, certain issues have been framed. Issue No. 1 reads as "Whether according to the Riwaj of the family of the parties, Mst. Nur Jahan Begum, as widow of Ihsan Ullah Khan, was an heir of Ata Ullah Khan deceased ?" The onus of proving this issue has been placed on the plaintiff. The plaintiff submitted an application on the 25th of June 1958, in which she alleged that the onus of proving issue No. 1 had been wrongly placed on her and prayed that the onus should be placed on the defendants and the issue be amended accordingly. The learned Civil Judge refused to place the onus on the defendants and to amend the issue. Aggrieved by this order, the plaintiff has come up in revision before this Court.

3. Learned counsel for the petitioner has urged that in the Record of Rights the plaintiff is entered as owner of one‑seventh share in the land, and as statutory presumption of truth attaches to the entries in the Record of Rights under section 44 of the Land Revenue Act, the onus of disproving issue No. 1 should have been placed on the opposite party. In support of his proposition he has mainly relied on the case of Nizam Din and others v. Goder and others (AIR 1934PC40). Its head‑note reads as follows :‑ "Under section 44 of the Punjab Land Revenue Act there is a, statutory presumption that the entries in the Record of Rights are correct, and that the plaintiffs in order to succeed, must establish that the mutation order is a false document. The mere fact that the patwari has committed some irregularities in submitting the report on which the order of mutation is passed, is insufficient to displace the presumption that arises under section 44 and in the absence of definite proof that the order of mutation itself is false, the plaintiffs cannot be held to have discharged the burden that lay upon them and that their suit must, therefore, fail". The plaintiffs in that case were the sons of the deceased mortgagor and the defendants, who were the sub‑mortgagees in possession of the suit land, had alleged that they had purchased the equity of redemption and in support of their contention they had placed on the record the copies of the entries in the Record of Rights. The question arose whether the defendants had acquired the equity of redemption. In view of the entries in the Record of Rights, and the mutation order, their Lordships were pleased to hold that the plaintiffs could not succeed unless they established that the mutation order was a false document. Learned counsel for the respondents has, however, urged that the entries in the revenue records are not evidence of title, for they are kept only for fiscal purposes. He has called my attention to the case of Wali Muhammad and others v. Muhammad Bakhsh and others (A I R .193Q.P C 91) where it was held by their Lordships "that the entries in the Record of Rights are not the foundations of the title but are mere items of evidence to be adduced by a vendee to prove the sale". He has also cited the case of Maharaja Kesho Prasad Singh v. Bahuria Mst. Bhagjogna Kuer (AIR 1937 P C 69) where it was held by their Lordships "that entries made in the Record of Rights are evidence of title mainly because they are good evidence of possession, but if contrary to the facts as to possession at the time when they were made they carry little, if any, weight". He has also referred to the case of Hayat Muhammad v. Niaz Muhammad and another (A I R 1936 Pesh. 149) where the Additional Judicial Commissioner held "that the entries in revenue records are fiscal in nature and cannot form the basis of a title and that the proceedings relating to a mutation are not covered by section 44, Punjab Land Revenue Act, under which a presumption of truth may be drawn regarding entries in the Record of Rights".

4. In order to appreciate the point involved it is necessary to refer to the relevant provisions of the Land Revenue Act. Section 33 of the Act provides that the Collector shall cause to be prepared by the patwari of each estate yearly or at such other interval as the Financial Commissioner may prescribe an edition of the Record of Rights amended in accordance with the pro visions of Chapter IV and this edition of the Record of Rights shall be called the annual record for the estate. Under section 34 of the Act the patwari is required to enter in the register of mutations every report made to him regarding the acquisition of any rights by inheritance, purchase, mortgage, gift or otherwise and a Revenue Officer is required, from time to time to inquire into the correctness of all entries in the register of mutations and he is further required to make such order as he thinks fit with respect to the entry in the annual record of the right acquired. Section 36 provides that if a dispute arises as to any matter of which an entry is to be made in a record or in a register of mutations then the Revenue Officer shall make such inquiry as he thinks fit and determine the entry to be made as to that matter. But if in such dispute the Revenue Officer is unable to satisfy himself as to which of the parties thereof is in possession of any property to which the dispute relates he shall ascertain by a summary inquiry who is the person best entitled to the property and shall by order direct that that person. be put in possession thereof and that an entry in accordance with that order be made in the record or register. It is also laid down in this section that an order of a Revenue Officer under subsection (2) of section 36 shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction. Section 44 of the Act lays down that an entry made in the Record of Rights in accordance with the law for the time being in force or in an annual record in accordance with the provisions of Chapter IV and the rules thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefore. In view of these provisions, it is quite clear that the Revenue Officer is competent to determine a disputed question of ownership and to make an entry in accordance with his decision in the Record of Rights. In arriving at a decision, possession alone cannot be the main guide because the Revenue Officer is required to prepare a Record of Rights, as its name implies and not merely a record of possession. The term "Record of Rights" itself connotes that these records are something more than mere record of possession or record of assessment. Although the ,q Record of Rights are not instruments of title, but they are certainly presumptive pieces of evidence to prove a person's title. By virtue of section 44, a presumption of truth is attached to such entries. The authorities relied upon by the learned counsel for the respondents have no direct bearing on the question involved. In A I R 1930 P C 91 their Lordships were dealing with the question whether the decision of the appellate Court, namely, that there had been no sale was a pure question of fact under section 100 of the Code of Civil Procedure. The appellants in that case had relied on a number of entries in the Record of Rights but the lower appellate Court had come to the conclusion that some of the entries in the Record of Rights were proved to be wrong, and after considering the evidence both oral and documentary and giving effect to the statutory presumption it had held that the onus upon the appellant had not been discharged. While dealing with the question whether it was a pure question of fact their Lordships had observed that the entries relied upon by the appellants were not the foundations of their title but were mere items of evidence adduced by them to prove the sale. This ruling in my opinion support the case of the petitioner. It is true that the entries in the Record of Rights are not instruments of title, and they are essentially items of evidence, but in view of the fact that statutory presumption of truth attaches to such entries, they are presumptive pieces of evidence to prove a person's title. A I R 1937 P C 69, . referred to above, deals with the provisions of the Land Revenue Act of the United Provinces. In that ruling it has been clearly laid down that the entries to be made in the Record of Rights under the United Provinces Act (III of 1901) are intended to be based upon the facts as to possession. This ruling has, therefore, no bearing on the point involved. So far as the Peshawar ruling, referred to above, is concerned, it deals with the entries in mutation, which had not been incorporated in a Jamabandi. As against these rulings, the learned counsel for the petitioner has relied on Munshi Ram v. Mehr Das (I L R 18 Lah. 642) Shamsher Chand v. Bakhshi Mehr Chand (A I R 1947 Lah. 147) and Nizam Din and others v. Godar and others (A I R 1934 P C 40). In Munshi Ram v. Mehr Das it was held by a Division Bench of the Lahore High Court that "the land having been mutated in favour of Munshi Ram and his own name having been incorporated in the revenue papers as owner, there was a statutory presumption in his favour under section 44 of the Punjab Land Revenue Act which had not been given effect to by the learned Single Judge. In Shamsher Chand v. Bakhshi Mehr Chand, it was held by Din Muhammad, J., "that in view of the provisions of sections 34 to 40 of the Punjab Land Revenue Act, it cannot be said that in the Punjab, Jamabandis prepared on the strength of mutation registers are not records of titles". He also observed "that the term `Records of Rights' itself connotes that these records are something more than mere records of possession or records of assessment". In the same case Mahajan, J., observed "that Records of Rights are no doubt presumptive pieces of evidence to prove a person's title, but they are by no means a substitute for title deeds". In Nizam Din and others v. Goder and others, their Lordships of the Privy Council have clearly laid down that in view of the entries in the Record of Rights and the mutation order, the plaintiffs in that case who were challenging the entries, could not succeed unless they established that the entries were false. In view of the clear rule laid down by their Lordships in Nizam Din and others v. Goder and others. I have no hesistation in to holding that in the present case the burden of proof should have been placed on the defendants and they should have been required to prove that the plaintiff was not entitled to inherit the property. In view of the mutation order passed by the Collector and the B entries in the Jamabandis, an initial presumption arises in favour of the plaintiff and consequently it is for the opposite party to prove that the entries were false and that the plaintiff was not entitled to inherit the property.

5. The next question that requires to be determined is whether this Court is empowered to revise the order under consideration in the exercise of its jurisdiction under section 115 of the Civil Procedure Code. Learned counsel for the respondents has vehemently argued that the mere fact that the trial Judge has committed an error in wrongly placing the onus on the plaintiff is not sufficient to attract the provisions of section 115, Civil Procedure Code. He has also argued that section 115, Civil Procedure Code, is not intended to authorise the High Courts to interfere and correct erroneous decisions of subordinate Courts. He has cited Mst. Barkat Bibi v. Abdul Aziz (92 I C 46), Karimullah v. Mst. Kimon (102 P R 1912), Kristamma Naidu v. Chapa Naidu (17 Mad 410) and Manickavachakam Chettiar v. Official Receiver (A I R 1939 Mad. 733), in support of his contention that the wrong allocation of the onus of proof does not amount to material irregularity justifying interference in revision. These rulings proceed on the assumption that the giving of an erroneous decision on a point of law is not an irregularity or illegality. In Ganda Ram v. Rehana and others (A I R 1921 Lah. 166), Shadi Lal, C. J., however, held that the wrong allocation of onus of proof constituted material irregularity within the meaning of clause (c) of section 115 of the Civil Procedure Code. But the controversy seems to have been set at rest by the authoritative pronouncement of their Lordships of the Privy Council in N. S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras (AIR 1949 PC 156), where their Lordships have been pleased to hold as follows :‑ " The section empowers the High Court to satisfy itself upon three matters : (a) That the order of the Subordinate Court is within its jurisdiction ; (b) that the case is one in which the Court ought to exercise jurisdiction ; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs however profoundly, from the conclusions of the subordinate Court upon questions of fact or law." In Joy Chand Lal Babu v. Kamalaksha Chaudhry & others (A I R 1949 P C Z39 =P L D 1949 P C 114) their Lordships have observed as follows :‑ " That although error in a decision "of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under subsection (c), nevertheless if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law or failing to exercise a jurisdiction so vested, a case for revision arises under subsection (a) or subsection (b) and subsection (c) can be ignored. The cases of Babu Ram v. Munna Lal A I R 1927 All. 358 and Hari Bhi Kaji v. Naro Vishwanath I L R 9 Bom. 432, may be mentioned as cases in which a subordinate Court by its own erroneous decision in the one case on a point of limitation and in the other on a question of res judicata, invested itself with a jurisdiction which in law it did not possess and the High Court wrongly held, their Lordships think that it had no power to interfere in revision to prevent such a result."

6. Applying the test laid down by their Lordships of the Privy Council in the aforesaid two rulings to the facts of the present case, I am of the opinion that by placing the onus of C proof on the plaintiff in respect of issue No. 1, the lower Court N has committed an error of procedure which is material and that it is likely to affect the ultimate decision of the case. Sections 101, 102 and 103 of the Evidence Act embody certain general rules regulating the burden of proof. In his well‑known commentary on the Evidence Act, Mr. Muhammad Munir (now Chief Justice of Pakistan) while dealing with the rules as to burden of proof has remarked as follows :‑ " The rules of burden of proof are no more than statements of rebuttable presumptions of law. When a presumption operates in favour of a party, in the burden of proof is on the opponent, and when the burden of proof is laid by law on a party, the presumption of operates in favour of the opponent." I have already held that in the circumstances of the present case an initial presumption arises in favour of the plaintiff. The onus therefore lies on the defendants to prove that the plaintiff is not entitled to inherit the property. As the onus has been wrongly placed on the plaintiff, I am of the opinion that a gross error of procedure has been committed by the lower Court which amounts to material irregularity within the rule laid down by their Lordships of the Privy Council. I accordingly hold that this Court has the jurisdiction to revise the impugned order under section 115, C. P. C.

7. For the reasons given above, I accept this revision petition with costs and direct the trial Court to amend issue No. 1 so as to place the onus on the defendants to disprove the right of the plaintiff to inherit the property.

8. In the end, I would like to add that it is the duty of the Court to frame proper issues arising from the pleadings in a case and to determine all matters in controversy. After going through the pleadings of the parties I do not feel satisfied with the issues framed in this case. The plaintiff's case is that being recorded as an owner in the record of rights, she is entitled to get the land partitioned. The defendants have denied her right to partition but no issue has been framed on this point. Under section 111 of the Punjab Land Revenue Act, the plaintiff has a statutory right to demand partition. Prima facie the onus lies upon the party who disputes her right to partition, to prove that such right does not exist. See in this connection, 70 P R 1912, I L R 6 Lah. 196 and I L R 7 Lah.

346. It will be in the interests of justice if the learned Civil Judge will frame proper issues arising out of the pleadings of the parties, in the light of what has been stated above. R.M.A. Revision accepted.