1985 PLP 1004 (SCMR)

M.S.H. QURAISHI, J.‑‑ This petition,. which arises out of a declaratory suit instituted by the respondents who are the heirs of Ashram Khan, relates to inheritance of the property originally owned by one Dulls son of Fattu. Dulls. died in 1915 and his property was entered in the name of his two surviving widows, namely, Mst.Mirza Noor and Mst. Said Jan, as limited owners, vide Mutation No.316, dated 5‑12‑1915. Ashram Khan is said to have been born to Mst. Mirza Noor 2/3 months after the death of Dulls. However, upon the death of Mst. Mirza Noor in 1921, the whole property was recorded in the name of Mst. Said Jan vide Mutation No.416 on 30‑6‑1921, without making any mention of Ashram Khan. Upon the death of Mst.Said Jan (date not known), the whole property devolved on her daughter Mst. Makho, again as a limited owner. No Mutation was attested in the name of Ashram Khan who died in 1952. Mst. Makho died in 1967, whereupon the property was recorded in the name of the heirs of both Mst. Makho and Ashram Khan vide Mutation No.699 dated 14‑4‑1967. However, at the instance of the heirs of Mst. Makho, was challenged the entry by appeal, the Mutation was cancelled and the whole property was attested in their favour by Mutation No.669 dated 15‑7‑1969. An appeal filed by the heirs of Ashram Khan having failed, Ghulam Rabbani and Nisar Ahmad (respondents 1 and 2) sons of Ashram Khan, brought the declaratory suit challenging the said Mutation No.669 of 15‑7‑1969 and claiming right of ownership in the property to the extent of 5/6 share in the property and conceding the balance 1/6 share in favour of Mst. Tijarat Bibi (petitioner No.l/defendant No.l) daughter of Mst:Makho. The suit was decreed on 30‑9‑1972 but on appeal the Additional District Judge held the heirs of Ashram Khan entitled to only 1/2 share, the remaining 1/2 going to Mst . Tijarat Bibi. The other petitioners (defendants 2 to 17) were held not entitled to any share. Aggrieved, the petitioners moved the High Court in revision but the same was dismissed on 27‑7‑1983. Hence this petition for leave to appeal.

2. Learned counsel for the petitioners submits that the entire case of the. petitioner is based upon a denial of Ashram Khan as son of Dulla from his wife Mst. Mirza Noor. Unfortunately, no specific issue had been framed in respect of the paternity of Ashram Khan. Nevertheless, the parties were not unaware of the controversy and had led evidence. The heirs of Ashram Khan had relied on (1) birth certificate and (2) death certificate, in respect of Ashram Khan and (3) the oral evidence of his son Ghulam Rabbani (respondent No.1). Some objections had been taken to the genuineness and the evidentiary value of the said certificates but the same were rejected by the Courts below. Apparently no effort was made by the petitioners to disprove the certificates or their genuineness by producing the correct copy of the relevant entries or by summoning the original entries although an issue, i.e., issue No.4, had been framed for the purpose. Instead technical objection had been raised in respect of the birth certificate and attempt had been made to draw attention to the incompatibility ‑of the conduct of Ashram Khan and his heirs with their assertion. It has been pointed out that had Ashram Khan been the son of Dulls, the relevant entries recorded from time to time should have noted that fact and that Ashram Khan should at least on attaining majority have asserted his right but that he did not do so until 1952 when he died at the age of 36 years. But these circumstances were not considered sufficient to displace the documentary evidence. The High Court after examining the evidence held: "Sufficient evidence had come on the record to prove that Ashram Khan was in fact the son of Dulla from his wife Mst. Mirza Noor. " In the circumstances, the controversy having been concluded by a G concurrent finding of fact, we find no scope for interference by this Court. The petition is, therefore, dismissed. M.I. Leave refused.