2010 PLP 50 (CLC)

IJAZ-UL-AHSAN, J.

This petition arises from the judgment and decree dated 27-9-2007 passed by a learned Civil Judge at Faisalabad. The same was assailed in appeal which was dismissed by the learned Additional District Judge on 30-9-2009.

2. Detailed facts of the case have been given in the petition as well as the plaint and need not be reproduced in extenso. However, a brief summary is being given in order to appreciate the controversy before this Court. The petitioner filed a suit against respondent No.1 for a declaration to the effect that he was the only legal heir of Muhammad Yaqoob son of Khawaja. He was, therefore, exclusively entitled to own a piece of land measuring 21 Kanals, 3 Marlas situated at Chak No.248/RB, Tehsil and District Faisalabad. A further declaration was sought that respondent No.1, being an adopted daughter of Muhammad Yaqoob, was not a legal heir and was not entitled to inherit any share in the property.

3. The suit was contested. The learned trial Court framed as many as six issues, out of which issue No.1 was the most material. The same is reproduced as follows:

(1) Whether the plaintiff is the sole legal heir of the deceased Muhammad Yaqoob and the defendant No.1 is the adopted daughter of the deceased? OPP.

4. The onus to prove the afore-said issue was on the plaintiff. The plaintiff adduced evidence to prove the same. The petitioner did not take the witness box in support of his case. The witnesses produced by him stated that respondent No.1 was not the real sister of the petitioner. In fact the real sister of the petitioner had died on her way to Pakistan at the time of Partition. Respondent No.1 had been adopted by the parents of the petitioner and there was no other legal heir.

5. The controversy had arisen on account of Mutation No.1043 which was attested in favour of the petitioner on the basis of a statement made by him before the Revenue authorities on 1-1-1989. In the said statement the petitioner had stated that his sister Sharifan Bibi had died six months ago and being the sole surviving legal heir of Muhammad Yaqoob he was entitled to the entire property. On the basis of the said statement, it appears, that Mutation No.1043 was attested in his favour on 9-1-1989.

6. As opposed to the aforesaid statement the position taken in paragraph 2 of the plaint was that the petitioner's sister namely Sharifan Bibi had died at the time of partition. There was, however, no plausible explanation forthcoming as to how a mutation Exh.P.5 had earlier been sanctioned in favour of the successors of Muhammad Yaqoob who were identified as Hajran Bibi (widow), Bashir Ahmad (son/petitioner) and Sharifan Bibi alias Hanifan Bibi (daughter).

7. At the closing stages of the trial an affidavit allegedly sworn by Hajiran Bibi in 1989 was placed on record in the statement of the learned counsel for the plaintiff. In the said affidavit Hajiran Bibi had allegedly stated that respondent No.1 was not her daughter. The said document was never proved in accordance with law nor was it admissible in evidence. The author of the document was never subjected to the test of cross examination. Therefore, no reliance could be placed on the said document as correctly held by the subordinate Courts.

8. During the proceedings Exh.P-13 was produced which is the Nikahnama of respondent No.1. In the said document respondent No.1 is shown as the daughter of Muhammad Yaqoob and, amongst others, it is attested by the petitioner. An attempt was made to argue that Sharifan Bibi alias Hanifan Bibi are actually two persons. Therefore, the Nikahnama and the entire appearing therein do not provide any benefit to respondent No.1. It is, however, evident from a perusal of Exh. P.5 that Sharifan Bibi alias Hanifan Bibi is the same person, namely, respondent No.1.

9. It has also come on record that the petitioner filed at least four different suits in an attempt to prove that respondent No.1 was not the daughter of Muhammad Yaqoob and hence not entitled to any share in his property as his legal heir. The said suits were, for one reason or the other, withdrawn.

10. On the basis of the aforesaid material available on record both the lower Courts came to the conclusion that the petitioner had failed to discharge the onus of proof placed on him relating to the first and the most material issue reproduced above. He failed to appear in person in support of his case. The evidence produced by him was contradictory insofar as in paragraph 2 of the plaint he took the position that his sister had died at the time of partition while in the statement made by him before the Revenue authorities to get Mutation No.1043 sanctioned in his favour, he stated that his sister had died six months ago. Further the fact that he attested the Nikahnama of respondent No.1 in which the name of the father of respondent was mentioned as Muhammad Yaqoob estopped him for taking a different position. The affidavit of Hajiran Bibi Exh.P.14 was clearly an afterthought and a futile attempt to improve the case of the petitioner. 11 The learned counsel for the petitioner has argued that the reliance of the lower Courts on the statement made by the petitioner before the Revenue authorities and the fact of his attestation of the Nikahnama was misplaced. He further submits that the evidence produced by the petitioner by way of oral as well as documentary evidence was not given its due weight and seen in its true perspective. Therefore, the impugned judgments suffer from the defect of misreading and non-reading of evidence.

12. I have heard 'the learned counsel at length. I have gone through the evidence as well as orders of the learned subordinate Courts. The evidence produced by the petitioner was contradictory not supported by material on record and did not inspire confidence. The fact that the petitioner did not appear in person to support his case, made false and contradictory statements at various stages of various rounds of litigation between the parties and the fact that he attested the respondent's Nikahnama in which the name of the respondent's father was mentioned as Muhammad Yaqoob, played a major role in his failure to discharge the onus of proof placed on him.

13. The petitioner failed to prove that he was the only legal heir of Muhammad Yaqoob and that the respondent was not the real daughter of Muhammad Yaqoob. All documentary evidence including Exh. P.5 (mutation) and Exh.P.11 (Nikahnama) supported the fact that respondent No.1 was the daughter of Muhammad Yaqoob. The alleged affidavit of Hajiran Bibi, the mother of the parties was never proved and has no evidentiary value. In order to be read in evidence, a document must' be proved in accordance with the requirements of the Qanun-e-Shahadat Order, 1984. This was admittedly not done. Therefore, it was rightly not given any weight. There is a higher threshold of the quality of evidence required to deprive a person of his/her rights in inherited property especially so where rights of women are involved. Such threshold has clearly not been achieved in this case.

14. The learned subordinate Courts correctly appraised and appreciated the evidence placed on record, arrived at the right conclusions and the orders passed by both subordinate Courts are well reasoned and in accordance with law. The learned counsel has not been able to show any misreading or non-reading of evidence nor has any illegality or material irregularity on the part of the learned Subordinate Courts been demonstrated before me. I do not find any merit in the petition. It is, accordingly, dismissed in limine. M.U.Y./B-51/L Petition dismissed.