P L D 1986 Lahore 128 (PLP)

In a suit for possession of land brought by the respondent Sakhi Muhammad to claim share of inheritance in the estate of Muhammad Ali, as a son of his pre‑deceased's son Qudrat Ullah, the defendants who are the other heirs of Muhammad Ali, denied that he may be his son. Trial Court decided the principal issue No. 4 against the plaintiff to dismiss his suit with the finding that he had not been proved to be a son of Qudrat Ullah, the pre‑deceased son of Muhammad Ali. In appeal, however, a learned Additional District Judge differed with this conclusion and upon a re‑consideration of the evidence on record reversed the finding of the trial Court. He held that the plaintiff's birth entry (Exh.P. 1) is a strong evidence on the point and reliance by the trial Court on Exh. D. 1 (a copy of F. I. R. lodged by one Mst. Aisha) was not correct because it had not been proved in accordance with law and even the identity of the ladies concerned with that report had not been established. Suit of the respondent having been thereupon decreed against the defendants, they have now come up to this Court on revision.

2. Learned counsel maintains that since there is no evidence with regard either to the marriage of Mst. Sharifan and Qudrat Ullah or even about their having ever lived together as husband and wife, therefore, the plaintiff/respondent who is no doubt a son of Mst. Sharifan (P. W. 5), bas not been proved to be born to Qudrat Ullah because plaintiff's own witness Chiragh Din (P. W. 2) had admitted that he was six months old at the time when his mother Mst. Shartfan was divorced by her previous husband Ghulam Muhammad and thus he could not be a son of Qudrat Ullah and more so because Qudrat Ullah bad also died in the year 1956, during which year Mst. Sharifan shifted to the village of the parties to take up residence there and contends on the basis of the evidence of Ibrahim (P. W. 1) that she had come to this village only after the death of Qudrat Ullah. I do not find merit in the foregoing contentions] because in a majority of cases direct proof of marriages alleged to have taken place long before, may not be available and even evidence about, the parents of the child having lived together as husband wife may not be forthcoming. In such cases evidence of repute and treatment by the l putative father as his child can be sufficient. Sakhi Muhammad and hi Is mother were not shown to have been living, in this village and with the family of petitioners, on account of any relationship other than the one with Qudrat Ullah.

3. Petitioners cannot make much capital out of the statements mad by P. Ws. 1 and 2, which are not admissions under section 18 of the B Evidence Act and, as has been held in Jalal Din and another v. Nawab and others (A I R 1941 Lah. 55), their evidence does not, as such bind the plaintiff. Those statements are nothing more than pieces of evidence which have bean duly considered by the learned Additional District Judge who has refused to attach much importance to them, for the reasons stated in his judgment, to reach his finding in favour of the respondent on the basis of the evidence on the record. Paternity is a question of pure fact and the appellate Courts finding with regard to it cannot be assailed on the ground that conclusion to the contrary may also be possible to be reached on the basis of same evidence. To this effect is the law laid down in Pathana v. Mst. Wasai and another (P L D 1965 S C 134), wherein it has been held that matters of inference from evidence, was duly considered by the District Judge, do" not furnish a ground for interference in second appeal. Again, Abdul Majid and others v. Khalil Ahmad (P L D 1955 F C 38), it had been held :‑ "The High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits." Scope of revision being much more limited, contention of the learned counsel is liable to he repelled as being untenable in this proceeding.

4. Material question involved in this case is one of pure fact which having been determined by the learned Additional District Judge on the basis of evidence available on the record, there is no jurisdictional error of the nature of misreading or non‑reading of evidence pointed out to have been committed by him to reaching his finding which is justified on the record and this case really stands concluded by that finding. Learned counsel has not offered any plausible explanation with regard to the entry in Exh. P. 1 and has simply asserted that it is unreliable for the reason that after entry No. 10 in it there is entry No. 13 with regard to the plaintiff which may have been falsely made subsequent to the death of Qudrat Ullah. This is a mere conjecture and there is no evidence on the point, either way. The fact seems to be that in the copy Exh. P. l entry No. 10 has been copied out for purposes of continuity and there are dashes placed against entries Nos. 11 and 12 which are neither left out nor have been entered in the copy as blank and the reason for indicating them in this way appears to be that they were not relevant and were, therefore, not copied out. This, by itself, cannot adversely affect entry No.

13. Learned) counsel has, however, admitted before me that the petitioners did not take any steps to have the original register of births and deaths brought to the Court and that, in fact the trial Judge had not seen this register before rejecting the copy Exh. P. 1 as unreliable.

5. There is no reason made out for interference with the conclusion reached in the appeal below which is in favour of legitimacy of the respondent/plaintiff. In Shah Nawaz and another v. Nawab Khan (P L D 1976 S C 767), it has been ruled : ‑ "It may be that conditions attached to legitimacy are more strict under Muslim Law than under other systems but the Muslim jurist‑consults as also the Courts have generally been very reluctant to stigmatize a child as illegitimate and, therefore, as far as possible every pre sumption is made in favour of its legitimacy. Courts, therefore, have been reluctant to declare a child bastard and have generally refused to admit illegitimacy when legitimacy can be inferred from the surrounding circumstances."

6. It has been held in Messrs Ghulam Farid Muhammad Latif and others v. The Central Bank of India Limited, Lahore (P L D 1954 Lah. 575) that revisional jurisdiction is discretionary and it should not be exercised when substantial justice has been done between the parties. Finding recorded by the learned Additional District Judge on the basis of the evidence on record in this case is just. Civil Revision is accordingly dismissed in limine. M. Y. H. Petition dismissed.