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Civil Appeal 114 of 1978, decided on 9th March, 1985.

(On appeal from the Judgment and Order of the Lahore High Court, dated 24‑12‑1977 in R.S.A. 882 of 1977).

‑‑‑Art. 185(3)‑‑Leave to appeal granted on grounds that oral evidence led by parties was not taken into consideration and instead reliance was placed on mutation of inheritance affected after death of predecessor‑in‑interest; Courts below should not have discarded oral evidence and instead relied on mutation which had no evidentiary value and hence same should not have been accepted.

‑‑‑S.100‑‑Second appeal‑‑Findings of two Courts below on vital issues accepted in second appeal‑‑Date of death of predecessors‑in‑interest given in inheritance mutation and warrant of execution taken as correct and conclusive unless shown to contrary‑‑Oral evidence led by parties insignificant‑‑Oral evidence in presence of documentary evidence, cannot be accepted‑‑No misreading of evidence having been found at any stage, appeal dismissed with costs.

Ghulam Mujtaba, Advocate‑on‑Record for Appellant.

Ch. Akhtar Ali, Advocate‑on‑Record for Respondents Nos. 1, 2, 5 to 10 and 15 to 17.

Respondent No.3 in person.

Respondents Nos. 4, 11 to 14 and 18: Ex parte.

Date of hearing: 9th March, 1985.

.‑‑Leave was granted by this Court vide order dated 21‑2‑1978 on the grounds that the oral evidence led by the parties was not taken into consideration and instead reliance was placed on mutation of inheritance effected after the death of Tora A Baz Khan; the Courts below should not have discarded the oral evidence and instead realised on the mutation which had no evidentiary value and hence the same should not have been accepted.

2. Facts as stated by the petitioner-giving rise to this appeal are that Tora Baz Khan the predecessor‑in‑interest of the parties was the original Grantee of the suit land. He had five sons namely Mawaz Khan, Nawab Khan, Qadam Khan, Sher Muhammad and Muzaffar Khan (father of appellant Mst. Sitaran Bibi). Tora Baz Khan was governed by custom, and, therefore, after his death in 1918, his estate devolved upon his aforesaid five sons and, subsequently, out of them, Muzaffar Khan, father of the appellant died whereupon mother of the appellant inherited 1/5th share of land as widow of Muzaffar Khan. This share, after her death, it is alleged by the appellant, devolved upon the appellant and Mst. Gul Bibi respondent No. 14 as daughters of Muzaffar Khan.

3. According to the appellant, she had been cultivating 1/10th share in the suit land through tenant but now the respondents have obstructed the payment of the produce of the land and she had to initiate the suit. Alternatively, the appellant claimed ownership and possession of 1/10th share of the suit property on the basis of payment for acquiring proprietary rights of her share, which allegedly was made 25 years ago to the respondents except respondent No.14. The respondents in their written statements denied the allegations and contested the suit, which gave rise to 11 issues.

4. The learned Civil Judge, after recording the evidence led by the parties, decided issues Nos. 1, 2, 3 and 5 against the defendants/ respondents while issues Nos.8 to 10 were decided against the plaintiff which are as follows:

(8)Whether Mst. Sitaran Bibi the plaintiff was entitled to inherit any land from Mst. Begum Jee, Muzaffar Khan or Tora Baz Khan

(9) Whether Mst. Begum Jee, in fact, inherited any share in the land in suit

(10) In case of proof of issues Nos. 7 and 9, whether the land inherited or to be inherited by Mst. Begum Jee, was to pass to her daughter the plaintiff and defendant No.16 under any special custom

Consequently, the learned Civil Judge, Sargodha dismissed the suit vide his judgment dated 26‑11‑1973.

5. In appeal only finding on issues Nos. 6 to 11 of the learned trial Judge were challenged before the learned Additional District Judge, Sargodha, According to the appellant, her father Muzaffar Khan diet after the original grantee namely Tora Baz Khan, and, therefore, finding on issue No.6 that Muzaffar Khan died during the lifetime of Tora Baz Khan was erroneous. The learned Additional District Judge, on going through the evidence, came to the conclusion that Tora Baz Khan die on 13‑6‑1918 which fact is evident from the inheritance mutation Exh D.3. Similarly the certified copy of the warrant of execution EXh.D. proves that Muzaffar was hanged on 17‑10‑1917. Therefore, in view o this documentary evidence the oral evidence led by the parties, i insignificant and, therefore, the appeal was dismissed with costs vide judgment dated 5‑7‑1977. On second appeal the learned High Court Judge accepted the finding of the two Courts below on the vital issue and dismissed the appeal observing that inheritance mutations a important documents and unless it is shown to the contrary the date death of the deceased given in such mutations would be taken as correct and conclusive.

6. Learned counsel contended that the Courts below have fallen into error while considering the mutation of inheritance of Tora Bax Khan as final and conclusive evidence in the case about the death of Tora Baz Khan and Muzaffar Khan; that no evidence was led on the point to show that the date and time of death was correctly incorporated in the inheritance mutation; that the Courts below misdirected themselves in not considering the fact that Tora Baz Khan died earlier to the execution of Muzaffar Khan predecessor‑in‑interest of the appellant; that due to the above error the learned Courts failed to consider that the oral evidence led by the parties, established the fact that the appellant ‑was in possession of the suit land and had been regularly receiving her share from the tenants till the date of the institution of the suit.

7. We have examined the contentions raised by the learned counsel and find that there is no misreading of the evidence at any stage. The appellant has failed to prove that Muzaffar Khan her predecessor‑ interest was executed after the death of Tora Baz Khan. Perusal of the mutation shows that Tora Baz Khan died on 13‑6‑1918 vides mutation b copy Exh.D.3. Similarly, certified copy of warrant of execution Exh.D.1 proves that Muzaffar Khan was hanged on 17‑10‑1917. Therefore, in the presence of such documentary evidence, oral evidence cannot be accepted. We find no merit in this appeal. Consequently, the appeal is dismissed with costs.

M. I. Appeal dismissed.

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