2023 PLP 226 (MLD)

ABDUL HAMEED BALOCH, J.

The petitioners/defendants Nos. 1 to 7 questioned judgments and decrees dated 18th August, 2014 and 14th February, 2018 (impugned judgments and decrees) passed by learned Civil Judge-VII, Quetta and learned Additional District Judge-VI, Quetta (trial court and appellate court), whereby the suit filed by the respondents Nos. 1 to 6/plaintiffs was decreed and the appeal filed by the petitioners/defendants Nos. 1 to 7 was dismissed.

2. Concise facts of the case are that the respondents Nos. 1 to 6/plaintiffs filed amended suit for declaration, partition, demarcation, cancellation of mutation entries and also for recovery of mesne profit against the petitioners/defendants Nos. 1 to 7 and respondents Nos. 7 to 12/defendants Nos. 8 to 13 in the court of Civil Judge-VII, Quetta, which was contested by the defendants Nos. 1 to 7, 11, 12 and 13 on legal as well as factual grounds, whereas the defendants Nos. 8 and 9 were proceeded against ex-parte. The learned trial court framed issues out of the pleadings of the parties, on which the parties produced evidence in pro and contra. On culmination of trial arguments were heard and thereafter, the learned trial court vide impugned judgment and decreed dated 18th August, 2014 the suit of the respondents Nos. 1 to 6/plaintiffs. The petitioners/defendants Nos. 1 to 7 being aggrieved filed appeal, but same was rejected by the learned appellate court vide impugned judgment and decree dated 14th February, 2018, hence the petitioners/defendants Nos. 1 to 7 are before this court.

3. Learned counsel for the petitioners/defendants Nos. 1 to 7 contended that the judgments of the courts below are contrary to law. The same are based on hypothesis, passed in hasty manner without appreciating the evidence on record. The witnesses produced by the respondents Nos. 1 to 6/plaintiffs do not qualify the test of Article 64 of the Qanun-e-Shahadat Order, 1984 (Order 1984). The witnesses had no knowledge in regard of relationship. The impugned judgments are not sustainable. The learned counsel placed reliance on: Mst. Asma Naz v. Muhammad Younas Qureshi, 2003 YLR 587 Khuda Bakhsh v. Habib Ullah, 1999 SCMR 1800 Atta Muhammad v. Bahadar through legal heirs, 2001 CLC 725 Anwar v. Sher Bahadur 1990 CLC 274

4. Learned counsel for respondents Nos. 1 to 6/plaintiffs vehemently opposed the contention of petitioners/defendants Nos. 1 to 7 and contended that the findings of the courts below are based on proper analyzing of the evidence. The statements of the related witnesses and their conduct are sufficient to prove relationship. Both the witnesses of the respondents Nos. 1 to 6/plaintiffs have relationship with the parties. Under Article 128 of Order, 1984 without reason no person can be permitted to dispute the parentage. It is settled law that concurrent findings cannot be re-opened at revisional stage. The learned counsel placed reliance on: Muhammad Razi v. Karachi Electric Supply Corporation, PLD 2017 Sindh 634 Mst. Laila Qayum v. Fawad Qayum PLD 2019 SC 449

5. Heard and perused the record. The record reveals that the respondents Nos. 1 to 6/plaintiffs filed a suit for declaration, partition, demarcation, cancellation of mutation entries and recovery of mesne profit before the trial court, stating therein that mother of respondents/plaintiffs Nos. 2 to 6 namely Shah Bibi was real sister of defendants Nos. 8 and 9 and father of defendants Nos. 1 to 7 are successors of late Mehrban, but the petitioners'/defendants' father deprived them from the legacy of late Mehrban. The defendants Nos. 8 and 9 were proceeded ex parte. The petitioners/defendants Nos. 1 to 7 filed written statement and rebutted the contention of the respondents Nos. 1 to 6/plaintiffs.

6. Now adverting to the statements of plaintiffs witnesses. PW-1 Muhammad Ibrahim, aged 45 years, deposed that defendants Nos. 8 and 9 are his mothers in law. The defendants Nos. 1 to 7 are sons and daughters of Shireen Khan. Shireen Khan was son of Mehrban. Shah Bibi, Dilbar Bibi, Taj Muhammad and Shireen Khan were brother and sisters. The witness in cross-examination stated that his marriage was solemnized with plaintiff No. 5 Farida Bibi in the year 1990/1991. He did not remember the date of death of Shah Bibi. His marriage was solemnized after the death of Shireen Khan. He has no knowledge that Shah Bibi died in 1978. He had no knowledge that the property in question was transferred in the name of Shireen Khan in 1986. The witness further stated that in the lifetime of Shireen Khan the plaintiffs have not filed the suit. The witness stated that he has not seen any document which shows that Shah Bibi was the daughter of Mehrban. The witness admitted that he has not seen any document which shows that Shah Bibi is daughter of Shireen Khan, voluntarily stated that he has knowledge that Shah Bibi is daughter of Shireen Khan. The property in question is in possession of the plaintiffs from forefathers. He has not seen Mehrban and Shah Bibi in his lifetime.

7. PW-3 Syed Muhammad Ali stated that plaintiffs Nos. 1 and 2 are his brothers in law. The defendants Nos. 8 and 9 told him that Shah Bibi was their sister and Shireen Khan was their brother. His father in law died before his marriage. The witness in cross-examination stated:

8. Shadi Khan appeared and recorded his statement as attorney of plaintiffs. He stated that Mehrban was died in 1975 and Shireen Khan in 1989.

9. The respondent Nos. 1 to 6/plaintiffs besides above witnesses produced revenue record. The respondents Nos. 1 to 6/plaintiffs alleged that the petitioners/defendants Nos. 1 to 7 willfully deprived them from the legacy of late Mehrban. The sole question for determination is that whether the respondents Nos. 1 to 6/plaintiffs are legal heirs or not. The respondents Nos. 1 to 6/plaintiffs produced witnesses in order to prove their relationship with late Mehrban. It would be appropriate to reproduce Article 64 of Qanun-e-Shahadat Order, 1984: "

64. Opinion on relationship when relevant: When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Divorce Act 1869 (IV of 1869), or in prosecutions under Section 494 or 495 of the Pakistan Penal Code (Act XLV of 1860). Illustrations (a) The question is whether A and B were married. The fact they were usually received and treated by their friends as husband and wife, it relevant. (b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family is relevant."

10. As per plain reading of above Article where the court has formed an opinion as to the relationship of one person to another expressed by conduct to the existence of relationship or member of family or person has special mean of knowledge in this regard is a relevant fact. Both the PWs replied in cross-examination that defendants Nos. 8 and 9 told them that the plaintiffs' mother is daughter of Mehrban, but both of the ladies did not appear in the court. Without appearing of both the ladies before the court their narration have not any foundation. While giving his opinion about the relationship the evidence must have some reason. Under Article 64 of the Order 1984 the opinion about relationship must be expressed by conduct then it could be relevant. Both the witnesses themselves have no knowledge. The plaintiffs in their plaint stated that the defendants Nos. 8 and 9 are sisters of their mother, but the above defendants neither filed written statement nor appeared before the court to confirm the factum of relationship. Both of them are real witnesses. Even the plaintiffs have not filed application for calling them as witnesses. PW-2 admitted that he has no relationship except marriage with Bibi Farida. Where the witness had no special knowledge of the relationship such statement of witness would not be considered as relevant fact to the opinion of relationship. The statements of both referred witnesses are hearsay. The statements of PW-1 and PW-3 regarding relationship of the family appears to be hearsay. In Mst. Jameela Khatoon's case 1997 CLC 1694 it was held: "

13. The oral evidence of Abdul Hameed P.W./1 and Dr. Karim-un-Din P.W./2 qua parentage of Khairat Baig and Mst. Jameela Khatoon does not appear to be reliable. Abdul Hameed Khan P.W.1 correctly stated that Mughal Baig had three sons but wrongly included Khairat Baig as one of the sons leaving out Sarfraz Baig who is proved by documentary evidence to be son of Mughal Baig. Similarly it is proved by sound documentary evidence that Khairat Baig is son of Ahmad Baig. It appears that Abdul Hameed Khan P.W.1 made a wrong statement to the effect that Khariat Baig was also son of Mughal Baig simply to help the plaintiffs/respondents Nos. 1 to

3. He claimed that he was residing at a distance of four miles from Akbar Pur Barota Tehsil Soni Pat but had not seen Mughal Baig. He added that he had seen his son Yaqoob Baig (though he had no son by this name) and at once corrected himself by saying that he had not seen any of his 'sons. Therefore, his statement regarding relationship of the families of Mughal Baig and Khairat Baig appears to be hearsay. He had no direct or special means of knowledge about their families and had wrongly mentioned the name of Khairat Baig and Yaqoob Baig as sons of Mughal Baig. Hence, his opinion could not be given any weight or treated as relevant under the provisions of section 50 of the Evidence Act (now Article 64 of the Qanun-e-Shahadat Order, 1984). For the same reason, the statement of Dr. Karim-ud-Din P.W.2 regarding the pedigree-table of Mughal Baig and Khairat Baig cannot be accepted."

11. Mere annexing pedigree table by itself is not a proof of relationship unless the same is proved by independent evidence. Even the pedigree table is not corroborative evidence and same does not have evidentiary value within the purview of Article 64 of Order 1984. It appears that respondents Nos. 1 to 6/plaintiffs filed suit after more than thirty (30) years of demise of Mehrban and approached the court after more than twenty (20) years of demise of father of petitioners/defendants Nos. 1 to

7. The record is suggestive of the fact that the respondents Nos. 1 to 6/plaintiffs had not challenged the said entry in the revenue record in the lifetime of Shireen Khan. Moreover, no plausible reason is reflected in the evidence of the respondents Nos. 1 to 6/plaintiffs showing as to why the mother of the respondents Nos. 1 to 6/plaintiffs did not challenge the inheritance. It is settled law that no one can become mum for his/their right for such a long period. Reliance is placed on Abdul Haq v. Mst. Surrya, 2002 SCMR 1330, wherein it was held: "

11. Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently, for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his lifetime."

12. So far as Fatwa is concerned. Fatwa could not be relied unless its author/signatory is produced in the court and is subjected to cross-examination and entire circumstances are brought to his knowledge. Reliance is placed on the case Muhammad Daud v. Muhammad Farooque, 2015 CLC 652.

13. Though the scope of revisional jurisdiction is limited. While exercising revisional jurisdiction the court can interfere where the law point is involved or specific portion of evidence if omitted by the courts below and where the findings of the courts below are illegal, unlawful, based on misreading, non-reading of evidence and perverse. This court while exercising jurisdiction could have re-evaluate, reappraise the entire evidence where the findings are based on insufficient evidence, erroneous, against the fact. Reliance is placed on the case of Muhammad Akhtar v. Mst. Manna, 2001 SCMR 1700, wherein it was held: "

5. We have carefully examined the respective contentions as agitated on behalf of the petitioner in the light of relevant provisions of law and record of the case. We have minutely perused the impugned judgment, judgment and decree dated 21-2-1989 passed by learned Senior Civil Judge, judgment and decree dated 19-6-1996 passed by learned Additional District Judge-III, Khairpur, confirming the judgment of the learned Senior Civil Judge. Thari Mirwah. Let we mention here at the outset that we are conscious of the fact that "where the two Courts below had given strong reasons for raising inference against genuineness of the documents on the basis of all attending circumstances and such Courts were justified in raising those inferences, even if the High Court had formed its own opinion different from the Courts below, such findings of fact could not have been interfered with unless strong reasons had been given to reject such inferences -- Different view on reappraisal of evidence, could not be a ground forty interference with such findings of fact of the two Courts below in exercise of jurisdiction under section 115, C.P.C. by High Court." (2000 SCMR 431). But the concurrent findings as derived by learned trial and appellate Courts are not in accordance with law and it appears that the evidence was never examined properly before deriving the concurrent findings. We are of the considered opinion that if the concurrent findings are perverse, arbitrary or fanciful the same cannot be termed as 'sacrosanct' and can be interfered with. In this regard reference can be made to 2000 SCMR 974 at 986 wherein it was observed as follows:- "It is trite law that if the concurrent findings of the Courts below are the result of misreading of evidence on record, it becomes the duty of the High Court/revisional forum to set the wrong right in accord with its jurisdiction under section 115, C.P.C." The citations relied by the learned counsel for the respondents are distinguishable. Each case has its own peculiar circumstances. In view of above discussion the instant revision petition is accepted. The concurrent findings of the courts below recorded vide impugned judgments and decrees dated 18th August, 2014 and 14th February, 2018 by learned Civil Judge-VII, Quetta and learned Additional District Judge-VI, Quetta are set aside. The suit filed by the respondents Nos. 1 to 6/plaintiffs is hereby dismissed. No orders as to costs. Decree sheet be drawn up. MH/122/Bal. Revision Petition allowed.