P L D 1988 Lahore 632 (PLP)

This revision petition has arisen out of a suit filed by Mst Baigan deceased alongwith Fateh Muhammad husband of Mst. Subar deceased and Muhammad Ali s/o Mst. Suban for a declaration the Mutation No.11 attested on 8‑5‑1955 by AC‑11 Okara regarding inheritance of Mst. Sattan of Chak No.71/1‑AL, Tehsil and District Okara was null and void against the Mohammadan Law ineffective against the rights of the plaintiffs and also that the plaintiffs were the owners of suit land to the extent of 2/3rd share and as E consequential relief a decree for 'hissadari possession was also prayed for. Mst. Baigan plaintiff No.1 died during the pendency of the suit, therefore, her legal representatives were impleaded as co‑plaintiffs. The suit was contested by the respondents. The learned trial Court after framing various issues and recording evidence by judgment dated 22‑9‑1987 decreed the suit. This judgment and decree was assailed by the defendants by filing appeal which has also been dismissed by the learned Additional District Judge‑11, Okara, by judgment and decree dated 5‑12‑1987. Both these judgments and decrees have been assailed in this revision petition by the defendants.

2. The facts relevant for the disposal of this revision petition briefly are that one Bahoo was the owner of agricultural land in Mauza Chapianwali Tehsil Fazalka District Ferozepur now in India. This Bahoo died in the year 1938. According to the plaintiffs he left behind one widow Mst. Sattan, two daughters, namely Mst. Baigan and Mst. Suban from his first wife, namely Mst. Saman, a real brother namely Bans. and a real sister Mst. Fajan. On the death of said Bahoo in the year 1938 his land was mutated in favour of Mist. Sattan his second wife as a life estate according to custom. Mst. Sattan also died in India in the said village in the year 1946. The brother, sister and daughters of Bahoo deceased migrated to Pakistan after partition. The claim in respect of property held by Mst. Sattan was filed in Pakistan and allotment of the suit land in Chak No.7/1‑AL, Tehsil and District Okara, the full description of which has been detained in the plaint was made in her name. After the claim was duly verified and accepted by the Claims Authorities, on 8‑5‑1985, the said land was mutated in the name of Bans. as brother of the deceased Bahoo the said last male owner, to the extent of 2/3rd share and the remaining 1/3rd share was given to Mst. Fajan, sister of deceased Bahoo. Mst. Suban and Mst. Baigan the alleged daughters of Bahoo from his pre‑deceased widow Mst. Saman were ignored and given no share in the inheritance of Bahoo. The case of the plaintiffs were that Mst. Saman was the first wife of Bahoo from ‑whom two daughters were born namely Mst. Suban and Mst. Baigan, therefore, rvist. Suban and Mst. Baigan were also entitled to inherit the property of Bahoo.

3. The learned trial Court held that it was proved from evidence that Mst. Saman was the first pre‑deceased wife of Bahoo from whom Mst. Suban and Mst. Baigan were his two daughters who were entitled to inherit property of Bahoo alongwith his brother and sister. The suit was decreed through judgment and decree dated 22‑9‑1987 which has been affirmed in appeal by the learned Additional District Judge, Okara, by judgment and decree dated 5‑12‑1987 dismissing the appeal of the defendants/ petitioners.

4. Learned counsel for the petitioners vehemently argued that the oral evidence produced by the plaintiffs in order to prove their relationship with Bahoo deceased was not relevant under Article 64 of Qanun‑e‑Shahadat (previously section 50 of the Evidence Act). Learned counsel for the petitioners laid a great deal of stress upon 'the argument that the witnesses of the plaintiffs did not state about the conduct of Bahoo and Mst. Saman on which their opinion was based as to relationship between them as husband and wife as such their evidence was not admissible and could not be made the basis for granting decree to the plaintiffs. He placed reliance on judgments reported as Shah Nawaz and another v. Nawab Khan PLD 1976 S C 767, Ghulam Muhammad v. Allah Yar and others P L D 1965 Lah. 482, Ali Bahadar Khan and others v. Muhammad Yusuf Khan and others P L D 1969 Pesn. 85 and Khadim Hussain v. Ch. Muhammad 'Ibrahim and others 1986 S C M R 1360 in support of his argument.

5. There is a concurrent finding of the Courts below to the effect that Bahoo was originally married to Mst. Saman and Mst. Suban and Mst. Baigan were born of the said wedlock. There exists direct evidence in support of this finding. In this connection reference may be made to the testimony of P.W.1, P.W.‑3 and P.W.5. The testimony of P.W.3 is to the effect that Bahoo married two women and first to come in his wedlock was Mst. Saman who bore two daughters to him i.e. Baigan and Suban. Again in cross‑examination he is emphatic to state that he had full knowledge of Bahoos first marriage and that iAst. Saman died 5/6 years before the murder of Bahoo. The testimony of other two witnesses namely P.W.1 and P.W.5 fully supports the thesis that Bahoo was firstly married with Mst. Saman. In recording the concurrent finding of fact the Courts below relied upon the above‑mentioned testimony of P'.W.1, P.W.3 and P.W.5 and as such the finding is wholly unexceptionable. The validity of the said finding has been assailed on behalf of the petitioners on the ground that according to Article 64 of Qanun‑e- Shahadat Order, it was necessary for the said witness when expressing opinion as to existence of relationship between Bahoo and Mst. Saman to state the conduct of the two spouses on which the opinion was based. The argument suffers from fallacy that the testimony of the said witnesses constitutes ‑an opinion as distinguished from direct evidence. Considering that the testimony of the said witnesses constitutes direct evidence as to the factum of marriage between Bahoo and Mst. Saman, there was no question of expression of opinion by them and as such the applicability of Article 64 is not attracted. it is manifest from the plain language employed in the said Article 641 of Qanun‑e‑Shahadat that its applicability is confined the evidence of opinion as a class of circumstantial evidence as distinguished from direct evidence. That being so in a case where there is direct testimony as to the factum of marriage as in the instant case, the objection A based upon Article 64 on the ground that evidence of conduct was necessary is to be ruled as without substance. The rule laid down in the reported cases noted above on which reliance has been placed by the learned counsel for the petitioners are not applicable to the facts of this case.

6. No other point was argued by the learned counsel for the petitioners. The two Courts below while recording concurrent finding of fact have neither misread, misconstrued nor Kept out of consideration any material evidence produced in the case. They have not committed any material irregularity and illegality in exercise of their jurisdiction calling for interference by this Court under section 115, C.P.C. The findings of the two Courts below are based on careful and elaborate eviaence produced or. the record by the parties. The revision petition fails which is hereby dismissed without any order as to costs, M.B.A./G‑158/L Petition dismissed.