P L D 1991 Supreme Court 275 (PLP)

MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑This appeal through leave of the Court by the defendants in a suit for possession through inheritance is directed against the judgment and decree of the High Court dated 16‑6‑1975; whereby, the respondents/plaintiffs' Regular Second Appeal was allowed. Earlier their suit was dismissed and they had also failed in first appeal. Leave to appeal was granted after noticing facts and points involved as follows:‑

"For the purpose of this petition it would be sufficient to state that the land in dispute in it originally belonged to Amir Khan and Ahmad Khan sons of Samand Khan. On Amir Khan's death it devolved under custom on his brother Ahmad Khan and on Ahmed Khan's death to his widow Mst. Amina Bibi, who died in 1961. On her death, the respondents filed a suit against the petitioners, who claim to be the grand sons of Amir Khan for a declaration that they were entitled to 3/4 of the property of Ahmad Khan. The petitioners contested this suit and said that they were the sons of Jan Mohammad, who was the son of Amir Khan. "However, we have to point out that long before the suit under appeal was filed, when Amir Khan was the owner of the land in dispute, he alienated a portion of it which was challenged by Jan Mohammed, the father of the petitioners. Amir Khan had contested this suit on the ground that Jan Mohammed (the father of the petitioners) was, not his son, and as this plea was accepted Jan Mohammad's suit was dismissed, and Mr. Ehsanul Haq informed us that this decree had become final. Therefore, when the petitioners pleaded in their written statement in the suit under appeal that they had inherited the property as grandsons of Amir Khan, the contention of the respondents was that they were barred by resjudicata from advancing this plea, because the suit of their father, Jan Mohammed, had been dismissed on the finding that he had failed to prove that he was Amir Khan's son. "The judgment in this suit riled by Jan Mohammad was produced in the trial Court, but Mr. Ehsanul Haq submitted that the evidence produced by the petitioners in support of their claim was so overwhelming that the learned Administrative Civil Judge, Gujrat dismissed the suit of the respondents by his judgment dated 11‑3‑1962. The respondents challenged the dismissal of their suit in an appeal in the District Court, but after careful examination of the evidence produced by the parties, the learned District Judge also upheld the claim of the petitioners that they were the grandsons of Amir Khan, and dismissed the appeal of the respondents by his judgment dated 22‑2‑1964. The respondents challenged the concurrent findings of the two lower Courts in a second appeal in the Lahore High Court which was allowed by a learned Single Judge, inter alia, on the ground that the claim of the petitioners was barred by res judicata on account of the decree passed against Jan Mohammad in the suit filed by, him against Amir Khan. Hence this petition for leave. "The suit filed by Jan Mohammad against Amir Khan was based on custom, whilst the suit of the respondents in the instant case was filed under Mohammadan Law, therefore, Mr. Ehsanul Haq submitted, inter alia, that the learned Judge had erred in law in holding that the dismissal of Jan Mohammad's suit was fatal to the claim of the petitioners in the instant case, because it debarred them from contending that Jan Mohammad was the son of Amir Khan. This submission appears to be supported by this Court's judgment in Allah Rakha v. Siraj Din and others (PLD 1960 Lahore 106). Therefore, we grant leave." In order to understand the real controversy which is short and simple it is necessary to refer to the pedigree‑table prepared from the combined reading of similar pedigree‑tables; one in the opening part of the trial Court judgment and the other in opening narration of the petition for leave to appeal submitted by the appellants in this Court, as well as three other pedigree‑tables‑‑two given in the first appellate judgment and one in the second appellant judgment. Abdullah Khan | Rehmat Khan Saadullah Khan | | | Sikandar Khan Samand Khan Hasan Khan | | | | | | Nawab Khan | Fateh Khan | | | Muhamad Khan | Muhammad Khan | | | _______________________ | | | | Amir Khan Aamina Bibi | Disputed (widow) | | | __________________ | | | | | | Rehmat Khan Yousaf Khan | | (Plaintiff) (Plaintiff) | | Jan Muhammad. Ahmed Khan | issueless | ___________________________________________________________ | | | | | Sardar Begum Sardar Khan Karam Khan Muhamad Rehmat (Defendnt) Khan Khan The real dispute is with regard to the paternity of Jan Muhammad‑‑whether or not he was the son of Amir Khan. it is agreed from both sides that if he is held to be the son of Amir Khan the appellants would certainly succeed, further details then will be examined. If it is held otherwise, the appellants would have no case left to be examined with this question observed as follows:‑ "It will be seen from the statement of the case given above that when Amir Khan died in 1924 Jan Muhammad was excluded from succession and the mutation of inheritance No‑2468 of 1924 (Exh.P.4) was sanctioned in favour of Ahmad Khan, his brother, as Amir Khan was held by the Revenue Authorities to have died issueless and without having left a widow behind. Jan Mohammad's claim, to be the son of Amir Khan at the relevant time, was rejected on the basis of the decision of the Chief Court of the Punjab dated the 2nd of May, 1918 (Exh.P.7), which had put a seal on the denial of paternity of Jan Muhammad by Amir Khan. Jan Muhammad admittedly felt satisfied with that mutation of inheritance as he did not take any steps either before the higher Revenue Authorities or before the Civil Court to impugn that decision. For the second time Jan Muhammad was excluded from succession, when Ahmad Khan died in 1929 and his estate was mutated under Custom in favour of Mst. Amina Bibi, his widow (see Exh.P.3). No objection was taken to his exclusion from succession for the second time by Jan Muhammad. Moreover, subsequently when Mst. Amina Bibi felt persuaded to execute the gift deed Exh.D.1 of the property inherited by Ahmad Khan from Amir Khan to Jan Muhammad on the basis of some alleged oral will made by Ahmed Khan, the attempt of Jan Muhammad to nullify the decision (Exh.P.7) of the Chief Court that he is not the son of Amir Khan, failed. This gift was successfully challenged by the collaterals and when the matter came up before this Court in appeal, Jan Muhammad compromised the dispute and agreed to accept 1/3rd of the gifted property, thereby further conceding that he could not claim the property as inheritance of Amir Khan (see Exh.D.45). In the circumstances the appellants' contention that the compromise would not be interpreted to mean that Jan Muhammad had in any manner been clothed with the legal status of the son of Amir Khan is not without force. In order to show that if Jan Muhammad was held to be not the son of Amir Khan in some previous litigation, those decisions are not binding on the contesting respondents, reliance has been placed on some observations in Fazal Dad and others v. Ahmad Ali and another (PLD 1960 Lah. 106). 1, however, find that the precedent case is clearly distinguishable and has no application to the facts before me. Here Amir Khan, the alleged father of Jan Muhammad, has denied the claim of Jan Muhammad. As already observed, on three occasions Jan Muhammad has accepted that position and there is nothing on the record to show that the contesting respondents are not claiming through Amir Khan as the basis of their claim is relationship with Samand Khan ancestor." Learned counsel for the appellants reiterated the points raised at the stage of grant of leave to appeal; namely, that the bar of res judicata would not operate against the appellants because the previous suit was filed by Jan Muhammad on the basis of custom while the present suit is based on the rules of Muslim Law of Inheritance. He has again relied on the two judgments cited and noted at the earlier stage. He also argued that the recent trend of authority has become more profound that the Courts in Pakistan tried to lean in favour of legitimacy rather than to stigmatize a person who has already died, as illegitimate. Another recent judgment of this Court Abdul Majid and others v. Abdul Ghafoor Khan and others (P L D 1982 Supreme Court 146) has also been brought under discussion. We do agree that under the present total legal dispensation deriving its source power from the Islamic Law as enforced and permitted by the Constitution, favours determination of issues like the one in the present case in line with Islamic ethoes and principles. Accordingly, so long as the question of discretion and/or interpretation is concerned all possible doubts should be and would be resolved in favour of the legitimacy. But in the process of judgment making; if no such doubts arise then the judgment cannot be made so as to uphold legitimacy at all costs. And it is not the case of the learned counsel for the appellants that in Islamic dispensation no one can ever be declared as illegitimate. However, in case one is declared and held as illegitimate he would have all the rights concomitant and consistent with that status given by law or under any accepted principle of Islamic Law and jurisprudence. But in this case Jan Muhammad can be legitimate son of someone else. The main point argued by the learned counsel is res judicata, pure and simple. According to him the subject‑matter dealt with and decided in the earlier litigation was not the same as in the present litigation. Argument is that earlier it was devolution and inheritance under customary law and now it is under Muslim Law. True it is so and there are some judgments supporting the learned counsel in this behalf but as is apparent from the facts and circumstances in this case summarised in the impugned judgment, the fact remains that whether under customary law or under the Islamic Law the parenthood of Jan Muhammad unless established and directly linked with Amir Khan the former would not inherit either under custom or under Muslim Law. Thus the factual aspect of the same controversy relating to inheritance whether dealt with under Custom or under Muslim Law remains the same as to whether Jan Muhammad was or was not the son of Amir Khan. More than half a dozen reasons given in the impugned judgment reproduced above in order to hold that Jan Muhammad was not son of Amir Khan, are so strong jointly as well as severally that even if one or two fail C the remaining standing jointly and severally are strong enough to show that Jan Muhammad was not the son of Amir Khan. Thus this appeal fails on this factual finding and together with the bar of res judicata it does not leave anything to be discussed further. Accordingly, it is dismissed with no order as to costs. M.BA./R‑168/S. Appeal dismissed.