1989SCMR493 (PLP)

SHAFIUR RAHMAN, J.‑‑The petitioner was a pre‑emptor in a civil suit who seeks leave to appeal against the judgment of the Lahore High Court dated 2nd of April, 1986 whereby the claim of Ahmed Din, respondent No.l, a rival pre emptor was preferred in second appeal restoring thereby the judgment of the trial Court and setting aside that of the first appellate Court. The claim of respondent No.1 was based on plea that he was a heir of the vendor Boota while the petitioner was not possessed of any such right. The trial Court disposed of the question of relationship by observing as follows:‑ "Vendor Boota has been examined as P.W.3. He corroborated his relationship with the pre‑emptor. The defendant as already stated has made a crude attempt to falsify her. Bhari was not mother of Boota vendor. No better evidence than Boota can come on record. According to that the vendor is a collateral of the pre‑emptor and vica versa. P/4 Jamabandi 1963‑64 shows that the pre‑emptor and vendor are co‑sharer in the Patti. They are co‑sharer as well." The appellate Court reversed the finding on the ground that "there is no documentary evidence to make out that Mst. Bhari was the daughter of Fattu". The evidence of Boota P.W.3 who claimed to be the son of Gaman a brother of i Fattu father of Mst. Bhari was rejected on the ground that "he is a beggar by profession who has no status in life and his statement in the matter need not be relied upon." Similarly, the statement of Allah Ditta was rejected on the ground that "Allah Ditta is a labourer by profession and has no status in life". The High Court by the impugned judgment re‑appraised the evidence and disposed of the controversy by observing as follows:‑ "The evidence on the crucial point consists of oral statements of witnesses produced by either side. Ali Akbar, attorney of the appellant (who was involved in a murder case and was in jail), P.W.1, Boota, vendor, P.W.3, Allah Ditta, P.W.4, bore testimony to the fact that the appellant's mother, Mst. Bhari, was the daughter of Fattu, who was brother of Gaman, father of the vendor. Apart from examining himself, respondent 2 produced Malik Allah Rakha, D.W.1, Ghulam Rasul, D.W.2, Miran Bakhsh, D.W.5, residents of village Kassoke, to depose that the parents of the appellant's mother, Mst. Bhari, lived in village Dhilon and that she was not related to Boota. Mian Khan, D.W.7, and Abdul Ghani, D.W.8, residents of village Dhilon, who appeared as respondent 1's witnesses, stated that Mst. Bhari of their village was the wife of Allah Jowaya and that she had died at Kassoke. None of the aforesaid respondents witnesses could tell, even when asked, the name of the father of Mst. Bhari. Also the respondents themselves did not disclose the name of Mst. Bhari's father. It is rather unappealable to reason that these witnesses were unaware of the father's name of Mst. Bhari when they were giving details of her other relatives. Boota can no doubt be said to possess special knowledge of relationship with Mst. Bhari. Unlike the other witnesses of the parties Boota is not shown to i bear any hostility towards anyone. His testimony deserves due weight and consideration. In the circumstances Mst. Bhari could not but be accepted as the daughter of Fattu." Khawaja Muhammad Farooq, Advocate, the learned counsel for the petitioner has drawn our attention to a decision of this Court in the case of Madan Gopal and 4 others v. Maran Bepari and 3 others (P L D 1969 S C 617) to contend that though the finding recorded by the appellate Court at variance did not enjoy that sanctity but still it could be interfered with only if it was found that it failed to take into account material piece of evidence or if it does not reveal a logical basis for differing from finding of the trial Court, or is otherwise found to be arbitrary or capricious. These requirements according to the learned counsel for the petitioner are not satisfied in this case. The learned counsel also relied on Ghulam Muhammad and another v. Allah Yar and others (P L D 1965 Lah. 482) to contend that the nature of the evidence required to prove relationship, that is by reference to the conduct of the parties, was entirely lacking in this case and the plaintiff could not be said to have discharged the duty that heavily lay on it. He has also relied on Rokkam Lakshmi Reddi and another v. Rokkam Venkata Reddi and others (A I R 1937 P C 201) to establish the irrelevance of the plaintiff's evidence on the question of relationship. We have been taken through the evidence also in order to demonstrate its inadequacy to establish the case of the plaintiff. We have already pointed out from the finding of the first appellate Court that it has been guided more by the status of the witnesses than by the quality of evidence given by them. It was an obvious mistake and misdirection. Boota was in a position where he could state about the relationship and Ali Akbar the attorney of the plaintiff had made a mention of the conduct of the parties for establishing the relationship. The disputed point was short. It was the case of both the parties that respondent No.1 was the son of Jawaya from Mst. Bhari. The plaintiff's evidence stated that this Mst. Bhari was the daughter of Fattu brother A of Gaman the father of vendor. The defendant's evidence showed its complete ignorance as to who was the maternal grandfather of respondent No.l admitting that he was the son of Jawaya from Mst. Bhari. On such evidence the trial Court could correctly hold the relationship as claimed by the plaintiff as established and the High Court has, in restoring that finding after reappraising the evidence, 6 committed no error of law or fact which may require our further consideration. Hence, leave to appeal is refused. AA./M‑673/S Leave to appeal refused.