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Regular Second Appeal No.868 of 1979, decided on 17th December, 1986.
‑‑‑ S. 100‑‑Second appeal‑‑ Concurrent finding on question of fact‑ Interference in second appeal‑ ‑Requirement‑‑ Concurrent finding of fact, held, would not be open to review in second appeal unless it suffered from misreading or non‑consideration of material evidence‑‑In absence of any material evidence which could have been misconstrued or omitted from consideration, High Court refused to interfere with concurrent finding of fact of two Courts below.
‑‑‑ Arts. 49 & 72‑‑Dispute relating to in heritance‑ Faith of deceased in dispute‑‑Faith of deceased mentioned in his Nikahnama although such entry not required to be mentioned therein‑‑ Effect‑ ‑Effect of unauthorized entry, held, would be that same could not carry any statutory presumption of accuracy‑‑Where such document was tendered in evidence by plaintiff himself and entry therein proved by his own witnesses, he could not subsequently take a somersault and contend that Court should not look into it.
Rai Bhaiya Dirgaj Deo Bahadur v. Beni Mahto and others A I R 1917 PC 197 and Sukhdeo Singh and others v. Mathra Singh and others A I R 1933 Lah. 412 ref.
Begum Zainab Tiwana v. Ch. Aziz Ahmad Waraich, District Judge, Lahore and 3 others P L D 1967 Lah. 977 and Malik Muhammad Ishaq and 11 others v. Messrs Erose Theatre, Karachi and 26 others P L D 1973 Kar. 522 rel.
‑‑‑ Art. 46‑‑Entry of faith of deceased before controversy regarding his faith‑‑Effect‑‑Entry showing faith of deceased having been entered in Nikahnama before controversy thereof had arisen, held, would lend ample support to evidence in proof of faith of deceased.
‑‑‑Marriage‑ ‑Marriage of Shia girl with Sunni husband‑‑ Validity‑ Marriage of a Shia girl with a man professing Sunni faith is not void.
Aziz Banu v. Muhammad Ibrahim Hussain A I R 1925 All. 720 rel.
Hayat‑un‑Nisa and others v. Muhammad Ali Khan I L R 12 All. 290 ref.
‑‑‑Faith‑‑Faith of deceased‑‑Deceased proved to be Murid of a Pir‑ Presumption‑‑Strict observance of distinctive tenets of any sect, having ceased to be an invariable rule, circumstance that deceased had a Pir, held, could not be attached exaggerated significance so as to make it susceptible of the only inference that he was not Shia.
Mst. Sardar Bibi v. Muhammad Bakhsh and others P L D 1954 Lah. 480 ref.
‑‑‑S.100‑‑Second appeal‑‑Concurrent findings of Courts below‑ Justification for interference‑‑There being no justification for interference with concurrent findings of Courts below, second appeal was dismissed by High Court as being without substance.
Syed Jamshed Ali for Petitioner.
Malik Muhammad Qayyum and Raja Afrasiab Khan for Respondents.
Dates of hearing: 14th, 15th, 21st, 27th, 28th October and 17th December, 1986.
This regular second appeal is directed against the judgment and decree of the learned District Judge, Sargodha, dated 28th of June, 1979 whereby the appeal preferred by the appellant from the judgment and decree passed by the learned Administrative Civil Judge, Sargodha on 26th of April, 1973 dismissing his suit was dismissed, leaving the parties to bear their own costs.
2. The dispute between the parties pertains to agricultural land measuring 646 Kanals and Ahatas in an area of 4 Kanals situate in Chak No. 26 Shamali, Tehsil Bhalwal, District Sargodha. This property belonged to Mushtaq Ahmad. On his murder on 4th of May, 1962, the above estate was mutated in favour of his three sisters namely Mst. Mumtaz Begum, respondent No. 1, Mst. Riaz Begum, respondent No. 2 and Mst. Zohra Begum only on the ground that the deceased was Shia vide Mutation No. 295, dated 9th of June, 1962. Mst. Zohra Begum died after the murder of the deceased and her share also, treating her as a Shia, was mutated in favour of her surviving two sisters namely Mst. Mumtaz Begum and Mst. Riaz Begum, respondents Nos. 1 and 2. Out of the property inherited by Mst. Riaz Begum, respondent No. 2, she made a gift of 1 square of land in favour of Muhammad Tufail, respondent No. 3, her husband, who subsequently gifted the same to Raza Tufail, respondent No. 4, their minor son.
3. The appellant who is the consanguine brother of Shakrullah, father of the deceased, instituted a suit on 1st of March, 1966 for a declaration that he was entitled to inherit the estate of the deceased to the extent of 11/27th share. He alleged that the deceased as well as Mst. Zohra Begum were Sunni and according to the Hanfi law of inheritance, respondents Nos. 1 and 2 were entitled to inherit 16/27th share in the estate and the remaining 11/27th share devolved on him as a residuary. According to him, the deceased also owned property in his native village in Mauza Shadiwal, Tehsil and District Gujrat and there a mutation of inheritance in respect thereof was sanctioned in his favour to the extent of 1/3rd and the remaining 2/3rd in favour of the sisters of the deceased treating him as a Sunni.
4. The respondents contested the suit. According to them, the deceased and Mst. Zohra Begum like Shakrullah, their father, were Shia. They denied that the appellant had any right to inherit the property of the deceased or Mst. Zohra Begum. They explained that when they came to know of the mutation of inheritance in respect of the property situate in Mauza Shadiwal in favour of the appellant as well, they preferred an appeal which was accepted. They contended that the estate left by the deceased included land measuring 2131 Kanals which was owned by the Provincial Government and had been granted to the deceased as an occupancy tenant and after his murder, proprietary rights therein were obtained by respondents Nos. 1 and 2. They also raised preliminary objections that the land in dispute had not been properly described and that the appellant was not in possession of the land and the suit brought by him was not maintainable in the present form.
5. On the basis of the above pleadings, the trial Court framed the following issues:‑---
(1) Whether the area of the land in suit is not properly stated in the plaint
(2) Whether the plaintiff is in possession of the land in suit, if not, whether the suit as at present framed is competent
(3) Whether Mushtaq Ahmad was a Shia
(4) Whether Mst. Zohra Begum was a Shia
(5) Relief.
6. The following issues were added on 10‑5‑1967:‑--
(4‑A) Whether defendants Nos. 1 and 3 paid for and obtained the proprietary rights in regard to 2131 Kanals of the land in suit and what is its effect
(6) Relief.
7. After appraising the evidence adduced by the parties, the learned trial Court found issues Nos. 1 and 2 in favour of the appellant but deciding the remaining issues against him dismissed his suit vide its judgment and decree, dated 26th of April, 1973. Feeling aggrieved, the appellant preferred an appeal which was originally filed in the High Court but subsequently on enhancement of the appellate pecuniary jurisdiction of the District Judges, the same was transferred to the learned District Judge, Sargodha who vide his judgment and decree, dated 28th of June, 1979 upheld the judgment and decree of the trial Court and dismissed the appeal, leaving the parties to bear their own costs. Hence this second appeal.
8. Learned counsel for the appellant in his arguments has assailed the concurrent findings of the learned Courts below on issues Nos. 3 and 4 only. The respondents in order to prove that not only the deceased but also their sister were Shia examined as many as 36 witnesses including Mst. Mumtaz Begum respondent No. 1 as D.W.35 and Mst. Riaz Begum respondent No. 2 as D.W. 36. All of them except one namely Farzand Ali Shah alias Wan Shah D.W. 15 deposed that the deceased as well as his sisters were Shia. Farzand Ali Shah alias Wan Shah D. W. 15 stated that the deceased like him was Sunni. He was, however, contradicted by Maulvi Dost Muhammad who while appearing as a witness of the appellant as P. W.2 in rebuttal said that Wan Shah was Shia. The witnesses of the respondents included 24 Sunnis. They were residents of different places and had no bias to depose falsely against the appellant. They were unanimous in saying that the deceased as well as his sisters were Shia. The evidence of the respondents was augmented by the fact that at the time of the marriage of Mst. Mumtaz Begum, respondent No. 1 and Mst. Riaz Begum, respondent No. 2, the deceased was described as Shia in their Nikahnamas Exhs. P.4 and P.3 respectively. These two documents were brought on record by the appellant himself. The contents thereof were proved by Nazir Ahmad P. W.1, Secretary of the Union Council concerned and Maulvi Dost Muhammad P.W.2 who performed the Nikah of the two respondents. These two documents were executed on 8th of April, 1962 when no dispute existed between the parties as regards the faith of the deceased. Maulvi Dost Muhammad P. W.2, who was the Imam of the only mosque of Chak No. 26 Shamali where the deceased resided till his death did not say anywhere that the deceased was Sunni. He was the only Imam in the village. He did not lead his Janaza prayers. If the deceased were Sunni, this Imam would in all probability have performed this function. From his statement, the only inference which can be drawn is that the deceased was Shia. In addition to these two witnesses, the appellant examined eight more besides himself. Out of them, Ahmad Khan P.W.3 and Muhammad Khan P. W.4 were not independent witnesses. The learned Courts below after elaborate evaluation of the evidence led by the parties concurrently found that the deceased and his sisters were Shia.
9. The above concurrent finding on a question of fact is not open to review in second appeal unless it is shown that it suffers from misreading or non‑consideration of material evidence. This view is now well‑settled. The authorities cited by learned counsel for both the' parties lay down the same principle of law. Learned counsel for the appellant has not been able to point out any material evidence which might have been misconstrued or omitted from consideration.
10. Learned counsel for the appellant has contended that the entry in the Nikahnamas Exhs. P.3 and P.4 describing the deceased as a Shia is inadmissible in evidence as the same was made in excess of official duty. Reliance for this objection has been placed on section 35 of the Evidence Act, 1872 which provides that an entry in any public or other official record stating a fact in issue or relevant fact and made by a public servant or any other person in the discharge of a duty enjoined by law is itself a relevant fact. While interpreting this provision of law in (Rai Bhaiya) Dirgaj Deo Bahadur v. Beni Mahto and others A I R 1917 P C 197 the Privy Council held that in the case of official documents if it could be shown that any particular part was in excess of the official duty by reason of which it came into existence, that part might not be admissible. Almost the same principle of law was enunciated, albeit without reference to section 35 of the Evidence Act, 1872, in Sukhdeo Singh and others v. Metthra Singh and others A I R 1933 Lah. 412. There is no doubt that none of the entries of the Nikahnamas required the faith of the deceased to be mentioned therein. The only effect of the entry being unauthorised is that it does not carry any statutory presumption of accuracy. These Nikahnamas were tendered in evidence by the appellant himself. The entries of the Nikahnamas were proved by his own witnesses. In view of these two facts, the corroborative value of the entry in favour of the respondents cannot be denied. The law is that when a party places certain document on record, it cannot subsequently take a somersault and contend that the Court should not look into it. Begum Zainab Tiwana v. Ch. Aziz Ahmad Waraich, District Judge, Lahore and 3 others P L D 1967 Lah. 977 and Malik Muhammad Ishaque (represented by 9 heirs) and 11 others v. Messrs Erose Theatre, Karachi and 26th others P L D 1973 Kar. 522 may be referred to in support of this view. As already observed above, the entry showing the deceased as Shia was made in C the Nikahnamas on 8th of April, 1962 when no controversy had arisen as regards his faith. Therefore, this entry in the Nikahnamas lent ample support to the evidence adduced by the respondents.
11. There are two circumstances out of which learned counsel for the appellant has sought to make capital. One is that the sisters of the deceased were admittedly married to Sunnis by a Sunni Maulvi and the other is that the deceased as stated by Piran Ditta D.W. 6 was a Murid of one Chaman Shah. As regards the marriage of the sisters of the deceased with Sunnis by a Sunni Maulvi, it does not ipso facto raise an inference that they or the deceased were Sunnis. It is common knowledge that Shia girls have been married to Sunni husbands and vice versa. Such a marriage is not void as held in Aziz Banu v Muhammad Ibrahim Hussain A I R 1925 All. 720. So far as the testimony of Piran Ditta D.W. 6 that the deceased was a Murid of Chaman Shah is concerned, reference has been made to Hayat‑un‑Nisa and others v . Muhammad Ali Khan I L R 12 All. 290 wherein it was held by the Privy Council that the office of Pir and its functions were unknown among the Shias. This authority was followed in Mst. Sardar Bibi v. Muhammad Bakhsh and others P L D 1954 Lah. 480. However, in these days when strict observance of the distinctive tenets of any sect has ceased to be an invariable rule, the circumstance that the deceased had a Pir cannot be attached exaggerated significance so as to make it susceptible of the only inference that he was not a Shia.
12. For the foregoing reasons, I find no justification for interference with the concurrent finding arrived at by the learned Courts below and dismiss this appeal as being without substance. The parties are, however, left to bear their own costs.
A. A. /W‑1/L Appeal dismissed.
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