2003 PLP 2949 (YLR)

(1) Whether the suit is bad for non joinder of necessary party? OPD (2) Whether the deceased Shukar Din was Shia and remained so uptil his death? OPD (3) Whether Mst. Bhulan was sister of deceased Shukar Din and she died after him? OPP. (4) Whether the plaint is incorrectly valued for the purposes of court‑fee and jurisdiction? OPD (5) To, what share, if any, the plaintiffs are entitled to inherit from the suit land? OPP (6) Relief.

6. The learned trial Court after recording the evidence of the parties decided issue No.1 against the defendants while Issue No.1 was fond against the defendants while Issue No.3 was found against the defendants holding that Mst. Bhulan sister of deceased Shukar had died before him. The issue if the plaint was correctly valued for the purposes of court‑fee and jurisdiction was also decided in favour of the plaintiffs while Issue No.5 was found against the plaintiffs in the light of the findings recorded on Issue No.2 as to the entitlement of the plaintiffs to share the inheritance of Shukar deceased. Accordingly, in view of the findings on Issues Nos.2 and 5 the suit was dismissed.

7. Learned First Appellate Authority, however thought otherwise. While reversing the findings on Issue No.2 it was opined that the oral evidence produced by the defendants to discharge the burden of proof was insufficient to establish that deceased Shukar was a Shia by faith. Also, the learned First Appellate Court disapproved the consideration of the evidence by the trial Court which was earlier produced by the parties before the Revenue Officer during mutation proceedings. The learned trial Court had noted that Muhammad Sharif son of late Bhulan initially appeared before the Revenue Authorities making a request to participate in the mutation proceedings and to claim a share in the estate of the deceased Shukar but ended up by withdrawing his claim and at the same time deposing before the Revenue Authorities that his uncle Shukar deceased was Shia by faith. Learned First Appellate Court also found that Exh.P.8, copy of the pedigree table show that plaintiffs/appellants were descendants of Ghulam Muhammad and Shukar was descendant of Piran Ditta. Also that defendants /respondents in their written statement had admitted that Shukar deceased was son of Piran Ditta and that Piran Ditta was son of Gohar while Exh.P.9, a copy of Jamabandi showed that Budha and Gohar were sons of Mohkam Din while Exh.P.11 proved the fact that Fazla, Allah Ditta, Ghulam Muhammad and Ali Muhammad were sons of Budha. Therefore, in the view of the learned Court of first appeal from Exh.P.9 and Exh.P.11 it stood proved that Ghulam Muhammad ancestor of plaintiffs and Piran Ditta, father of Shukar Din had a common ancestor by the name of Mohkam. Accordingly, finding the plaintiffs/appellants as collaterals of Shukar Din deceased held them to be entitled to inheritance of 5/24 share. Earlier the learned Court of first appeal while dealing with the cross‑objections with regard to the findings on Issues 1 and 3 approved the findings recorded by the trial Court.

8. Heard the learned counsel for the parties. Learned counsel for the appellants states that neither of the two pedigree‑tables were properly proved inasmuch as none of the witnesses of the plaintiffs made even a reference to the same. Also that no evidence whatsoever including oral evidence was produced on record to prove that plaintiffs were collaterals of deceased Shukar Din. Also states that on Issue No.3 the statements of P.Ws.5 and 6 were not considered. Also that the contradiction in the statements of the P.Ws. as noted by the learned trial Court were not considered by the learned First Court of appeal while reversing the findings on Issue No.2.

9. By relying upon the ratio settled in re: Bhojraj v. Sita Ram and others AIR 1936 PC 60 learned counsel claims that the learned first Court of appeal ignored the basic principle that the real test for either accepting or rejecting an evidence was how consistent was it with the story, how it stood the test of cross‑examination and how far it fit in with the rest of the evidence and the circumstances of the case. Also relies upon re: Malik Khan Muhammad v. Haji Sikandar Khan 1989 CLC 2412 wherein the golden principle of law of evidence was reiterated that civil matters are decided on preponderance of evidence.

10. Learned counsel for the respondents, however, support the findings recorded in the impugned order. He claims that the pedigree table was prepared by the Revenue Authorities in accordance with record and that none of the defence witnesses raised a finger to its authenticity or the claims of the plaintiffs made in the plaint of their being collaterals of deceased Shukar. It is stated that the whole of the village in which deceased Shukar spent his life belonged to Sunni faith and, therefore a strong presumption arose that he professed the same faith. That presumption, in their view, was not rebutted by the oral evidence of the defendants.

11. In support of the submissions they rely upon re: Sabir Hussain and others v. Afrasayyab and others 1989 CLC 1591, re: Syed Muhammad Nawaz Shah and others v. Amir Hussain Shah and others 1989 CLC 1712, re: Allah Bakhsh and others v. Mst. Bhagan 1994 CLC 1942, re: Muhammad Ashraf v. Muhammad Tahir 1990 MLD 2399 and re: Zainul Hassan Mian and others v. Mst. Khuwand Naka and others 1989 MLD 1857. Also rely upon re: Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291, re: Muhammad Amir v. Khan Bahadur and another, PLD 1996 SC 267 and re: Abdul Hakeem v. Habib Ullah 1997 SCMR 1139 to contend that concurrent findings of the Courts below on Issues Nos. 1 and 3 cannot be interfered with in second appeal.

12. After hearing the learned counsel for the parties I have come to the conclusion that the learned trial Court correctly appreciated the evidence on record. On the other hand learned Additional District Judge was snot right in demanding documentary evidence: to support the faith of the deceased. In re: Mst. Sattan and others v. Mst. Sahiban 1989 MLD 1013, a case relied upon by the learned counsel for the respondents, it was found that faith of a person at the time of his death, was determinative of mode of inheritance to his estate.

13. In the first place there was ample oral evidence that deceased Shukar professed Shia faith at the time of his death and. therefore, mere fact that majority living in the village belonged to Sunni Sect was not of much relevance. It hardly, needs emphasis that a person can very well change his sect during his lifetime and the said change always does not need support from documentary evidence.

14. D.W.1 claimed that funeral of Shukar was performed by Mr. Muhammad Hussain Shah who was dead and that the body of the deceased was given last bath by Zahoor Ahmad who appeared as D.W.3. He is not a resident of that village. In his statement D.W.3 claimed that he went to the village of deceased Shukar to give bath to his body. D.W.1 Nazar Hussain belongs to the village of Shukar deceased who claimed that the deceased was Shia by faith and that his funeral prayer was offered by Muhammad Hussain Shah of another village who had since died. Also that funeral bath to the body of late Shukar Din was given by Zahoor Ahmad. He stated that both Muhammad Hussain and Zahoor Ahmad were Shia and that he, himself was Shia and had offered funeral prayer of Shukar deceased. In his cross‑examination he claimed that there were 4/5 Shia families in the village.

15. D.W.2 also supported the fact that late Shukar was a Shia by faith, though he himself claimed to be a Sunni. This witness who is the immediate neighbourer of deceased Shukar Din confirmed that 3 to 4 families in the village professed Shia faith. D.W.3 Zahoor Ahmed earlier mentioned by D.W.1 as Shia by faith claimed to have given funeral bath to the body of late Shukar Din, D.W.4 Mian Shamsher Ali, D.W.5 Inayat Ullah, D.W.6 Allah Bakhsh, D.W.7 Ghulam Muhammad and defendant No.1 Mst. Aisha Bibi as D.W.8 remained consistent in their cross‑examinations that late Shukar Din professed Shia faith. The four witnesses examined by the plaintiffs namely Faqir Muhammad, Umar. Din, Muhammad Khan and Sana Ullah alongwith Muhammad Malik, plaintiff No.1 simply affirmed that late Shukar Din was a Sunni by faith.

16. In my view even if the oral statements of the witnesses confirming and denying the sect of late Shukar Din are held to be equal, the preponderance of evidence can still be considered to be in favour of the present appellants in view of the statement made by Muhammad Sharif son of Bhulan before the Revenue Authorities. Most important fact to be noted is that at the relevant time Muhammad Sharif was himself claiming a share in the estate of the deceased on account of being the son of the real sister of the deceased. During these proceedings he deposed against his interest by saying that the deceased was a Shia by faith: Therefore, the Revenue Authorities rightly gave due weight to his statement and accordingly not only sanctioned the impugned mutation but also rejected the appeal filed by the plaintiffs (now respondents) before the Civil Court.

17. It is also my considered view that the learned trial Court did not misread the evidence. The Appellate Court rejected the claim of Zahoor Ahmad DN.3 of his having given funeral bath to the deceased merely for the reason that he belonged to another village. His opinion that D.Ws.3 and 4 could not be interested in the burial of Shukar Din, in absence of any suggestion in the cross ‑examination to these witnesses, is also not well based. Also the learned Additional District Judge was not correct in suggesting that the trial Court ought to have ignored the proceedings before the Revenue Authorities. It will be seen that the centre of controversy was Mutation No.770 dated 29‑7‑1965 and the plaintiffs had sought its cancellation. Therefore, to suggest that these proceedings could not be taken into consideration at all by the learned trial Court appears unjustified, particularly in view of the fact when the presence and participation of Muhammad Sharif son of Bhulan and his statement that his deceased uncle belonged to Shia faith was not disputed by the plaintiffs (now respondents).

18. The faith or sect of a person is so personal in nature that it cannot always be e insisted upon to be supported by documentary evidence. There can also be no doubt, as observed earlier, that a Muslim may change its sect during his lifetime and that fact can very well be supported by those who lived around him. One of the defence witnesses is neighbourer of the deceased who claimed that the deceased used to arrange Majalis Aaza in his house. That assertion was not effectively controverted by the plaintiffs. Also I am of the view that the most relevant witnesses with regard to the faith of a person are his immediate family members. When the family, members of a person state that their relation belonged to a particular sect then the person denying the same is under a heavy burden to establish the opposite. The fact that by claiming a particular sect a member of the farm of the deceased may gain some financial benefit is offset by the strong feelings which people generally have for their faith in our society.

19. Therefore, I will hold that the defenants sufficiently discharged the onus to establish that deceased Shukar was Shia and remained as till his death. The findings of the learned Additional District Judge, Gujranwala on the Issue No.2 are, therefore, set aside. Issue No.2 being the core issue rest of the issues need not be discussed to accept this appeal.

20. Accordingly, this appeal is allowed. The impugned judgment of the learned Additional District and Sessions Judge, Gujranwala dated 3‑5‑1979 is set aside. Resultantly, the judgment and decree of the learned trial Court dated 5‑4‑1975 dismissing the suit filed by the present respondents shall be rest red. M.H./A‑875/L Appeal accepted.