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Regular Second Appeal No. 48 of 1955, decided on 21st March 1957 from the decree of Sardar Ata Ullah, Additional District Judge, Gujrat, dated the 12th November 1954, setting aside the judgment and decree of Abdus Sa mad Khan, Senior Civil Judge, Gujrat, dated the 10th January 1953.
S. 35‑‑Entries in register of Marriages kept under S. 20 (2) (1), Punjab District Boards Act (XX of 1883)‑Admissible.
S. 35‑Revenue officer's order in mutation proceedings‑Admissible‑Order, however cannot be treated as evidence of title in suit challenging its correctness.
Held, that though a Revenue Officer's order in mutation proceedings was admissible under section 35, Evidence Act, the order could not be treated as evidence of title in a suit filed to challenge its correctness.
Nirman Singh v. Thakur Lal Rudra Partab Narain Singh A I R 1926 P C 100 ref.
S. 100‑Finding based on erroneous view of admissibility of documentary evidence ‑Not conclusive‑Second appeal.
Held, that a finding of fact based on an erroneous view of the admissibility of documentary evidence produced by parties was not conclusive in second appeal.
Where plaintiffs suit was dismissed by the lower appellate Court on the ground that entries in Marriage Register maintained by the District Board were not admissible to prove the relationship of the plaintiffs with a deceased person in whose estate, the plaintiffs claimed a share, but that the contents of an order in mutation proceedings passed by a Revenue Officer were admissible as proof of the relationships of the defendants to the deceased, whereas the selfsame contents were challenged by the plaintiffs in their suit, the order of dismissal was set aside in second appeal.
Asad Ullah Khan for Appellants.
Mohsin Shah for Respondents.
This is a second appeal against the judgment and decree dated the 12th November 1954, passed by the learned Additional District Judge Gujrat setting aside the judgment and decree of Mr. Abdus Samad Khan, Senior Civil Judge, Gujrat, and dismissing the appel lant's suit for possession of their share in the inheritance of one Rooldu of village Garawari.
Rooldu son of Mahandu died some time in 1926 and his land was mutated in favour of his widow Mst. Bholi, who died on the 20th of December 1949. On her death, mutation of the property was made, on the 6th of August 1951, in favour of the heirs of one Hasan Din, who was admittedly a collateral of Rooldu (vide copy of intiqal mauza Exh. D. 1). The present suit was filed by Mst. Makhni and Mst. Mughlani against the heirs of Hasan Din (defendants Nos. 1 to 4). It was alleged by the plaintiffs that the plaintiff Makhni and one deceased Mst. Jiwani were the daughters of Rooldu from his second wife, Mst. Soban and that the plaintiff Mst. Mughlani was his sister. The heirs of Mst. Jiwani were impleaded as defendants Nos. 5 to 9 and those of Mst. Bholi as defendants Nos. 10 to 12. The two plaintiffs have since died and their representatives have been brought on the record. It is not disputed before me that on the death of Mst. Bholi the heirs of Rooldu under the Shariat were entitled to succeed to the property in possession of Mst. Bholi ; and that if Mst. Makhni and Mst. Jiwani were the daughters and Mst. Mughlani the sister of Rooldu, then the inheritance must be divided as follows : The heirs of Mst. Bholi one‑eight, of Mst. Makhni and Mst. Jiwani one‑third each and of Mst. Mughlani 5 twenty fourth. The suit was decreed by the learned trial Court but the appellate Court dismissed it as it found that the alleged relationship of Mst. Makhni, Mst. Jiwani and Mst. Mughlani with Rooldu was not proved. The only question which was argued in this appeal at the Bar was whether this finding is correct.
In order to prove the relationship alleged by them, the plaintiffs produced four witnesses (P. Ws. 1, 2, 4 and 5), Exh. P. 1, copy of an entry relating to the marriage of Mst. Makhni from the register of marriages kept by the District Board and Exhs. P. 5 and P. 6, copies of entries from birth registers relating to the births of two daughters of Rooldu. The contesting defendants, namely, the heirs of Hassan Din pro duced only one witness and Exh. D. 1 mentioned above.
Learned Senior Civil Judge accepted the plaintiffs' evidence and rejected that of the defendants‑of D. W. 1 on the ground that he was a "got‑up witness" and Exh. D. 1 because " that document cannot be an evidence in itself as it gave rise to the cause of action to the plaintiffs and they had challenged it by the present suit". The appellate Court held that Exh. P. 1 ought not to have been received "into evidence " that Exhs. P. 5 and P. 6 prove nothing and that the witnesses of the plaintiffs cannot be relied upon because they are interested and not "related to Rooldu, the deceased male‑holder". It held that Exh. D. 1 was admissible and furnished valuable evidence of the correctness of the decision contained therein. Learned counsel for the appellants con tended' before me that the finding of the lower appellate Court is vitiated by the erroneous view it took regarding the admissibility and relevance of the documentary evidence on the record.
As regards Exh. P. 1, the learned Additional District Judge held that it " is neither a public document nor is it a record admissible under section 35 of the Pakistan Evidence Act". The learned judge was obviously in error. The register of marriages was maintained by the District Board under section 20 (2) (1) of the Punjab District Boards Act XX of 1883 and, therefore it was unquestionably admissible in evidence under section 35 of the Evidence Act. As regards the evidentiary value of the document, the learned judge does not appear to have perused its contents. It recites the name, parentage, and the residence of the bride, bride groom and two respectable witnesses arid is signed by the Qazi who recited the nikah. The recitals are authenticated by Rooldu, father of Mst. Makhni, who affixed his thumb- impression in column No. 5. There can thus be hardly any doubt about the considerable value of this document. It strongly corroborates the evidence of the plaintiff's witnesses. Similarly Exhs. P. 5 and P. 6 furnish irresistible corroborative evidence of the plaintiff's witnesses. The entries are of 1895 and 1902 and correspond to the ages of Mst. Makhni and Mst. Jiwani, as proved by the evidence and other circums tances of this case. Inasmuch as the defendants did not admit that Rooldu had a second wife and did not allege that his wife Mst. Bholi had any daughter, a strong presumption arises that the two daughters whose births are entered in Exhs. P. 5 and P. 6 are none other than Mst. Makhni and Mst. Jiwaui, as deposed to by the plaintiff's witnesses.
Sardar Ata Ullah, the Additional District judge, made the following observations regarding Exh. D. 1 :‑
" The trial judge's remark about this evidence is as follows :‑
' That document cannot be an evidence (in) itself as it gave rise to the cause of action to the plaintiffs and they had challenged it by the present suit'.
It is difficult to understand the meaning of this remark and it is obvious that a document of value of it is admissible in evidence cannot be thrown out on the sole ground that the finding in it is challenged in a civil Court. The act of Revenue Officer in deciding the matter after careful enquiry was an act done by him in exercise of his public duties and the document prepared by him is a public document and admissible under the provisions of the Land Revenue Act as well as under section 35 of the Pakistan Evidence Act."
There is no doubt that Exh. D. 1 is admissible under section 35 of the Evidence Act; but it is no evidence of the title determined by the order therein when a civil suit is filed to challenge that order. The assertion of the learned judge that it is based upon a "careful enquiry" is contrary both to law and facts. It was overlooked that the order in question itself begins with the words : "After comparing the conflicting facts put forward by the parties the following summary conclusions occur," No documentary evidence was produced before the Revenue Officer. As regards the law on the subject, the following observations of the Privy Council in Nirman Singh v. Thakur Lal Rudra Partab Narain Singh, (AIR 1926 PC 100) will suffice:‑--
"The perusal by their Lordships of the judgment of the Court of the Judicial Commissioner of Oudh, . . . . leads their Lordships to think that its judgment is to a great degree based on the mischievous but persistent error that the proceedings for the mutation of names is a judicial proceeding, in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind as has been pointed out times innumer able by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid.
It is little less than a travesty of judicial proceeding to regard the two orders of the Extra Commissioner of Bahraich and Mr. M. L. Ferrar. Deputy Commissioner, as judicial determinations expelling proprio vigore any individual from any proprietary right or interest he claims in immov able property."
The learned judge was thus clearly in the wrong in treating the mutation order as evidence of the defendants allegation that Mst. Makhni and Mst. Jiwani were not the daughters of Mst. Mughlani, the sister of the deceased Rooldu.
The appraisal of the plaintiffs' oral evidence by the lower appellate Court is obviously affected by, and in fact largely based upon, his erroneous view of the documentary evidence on record and cannot, therefore, be considered as conclusive in second appeal. There are also certain mis statements of the evidence. It has been said t "The learned Senior Civil judge appears to be of the view that this evidence is furnished by persons related to the plaintiffs and therefore must be considered with some reverence. (Learned trial Court did not use the word 'reverence'; nor did it approach the evidence from that point of view:) This is an entirely mistaken view as the relations of the present appellants would naturally be interested in furthering their cause. Things would have been otherwise if the witnesses were related to Rooldu, the deceased male‑holder." " Things " were in fact " otherwise"; but the learned Judge failed to notice it. It is obvious that all the relations of the sister Mst. Mughlani and the daughters Mst. Jiwani and Mst. Makhni were also the relations of the deceased Rooldu and vice versa. P. W. 2 Allah Ditta stated that he was related to Rooldu even before the latter's marriage to his cousin, Mst. Soban. Again it has been wrongly stated : "No body has come forward to prove that Mst. Makhni and Mst. Jiwani were born to this Mst. Soban and that their father was none else than Rooldu." There is definite evidence to that effect furnished by the plaintiffs' witnesses. As regards the relationship of Mst. Mughlani with Rooldu, the learned judge has considered only the evidence of P. W. 4 and completely ignored that of the other witnesses. He has also not been able to point to any evidence in rebuttal of the plaintiffs' witnesses. His whole approach to the oral evidence appears to be based upon Exh. D. 1 which he wrongly considered to be weighty evidence in rebuttal of the plaintiffs allegations.
There can be no manner of doubt that the finding of the learned trial Court regarding the relationship of Mst. Makhni, Mst. Jiwani and Mst. Mughlani was eminently correct and must be upheld. I, therefore, set aside the judgment and the decree passed by the lower appellate Court. I find that the plaintiffs claimed possession of their own shares only. The decree of the learned trial Court must, therefore, be modified to the extent that one‑third of the property in suit should be decreed to the appellants Nos. 1 to 3 and 5‑24th to the appellant No. 4. The heirs of Mst. Jiwani and Mst. Bholi will have to recover their shares of one‑third and one‑eighth respectively by separate suit or suits after paying the requisite Court fee. The appeal is allowed with costs, as indicated above.
A. H. Appeal allowed.
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