2003 PLP 981 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

The petitioner (deceased) through L.Rs. seek leave to appeal against judgment, dated 22:6-2001, passed by the Lahore High Court, Bahawalpur 'Bench, in Civil Revision No.626-D/89-BWP.

2. The facts relevant to the present case are that the petitioners late Haji Allah Ditta and late Haji Allah Rakha (represented by their legal heirs/successors-in-interest) tiled a suit of declaration that they were owners in possession of the suit-land as described in the heading of plaint and that Mutation No.361, dated 12-6-1985 in favour, of respondents as legal heirs of Ghulam Qadir deceased was illegal and inoperative qua their rights. It was stated in the plaint that late Ghulam Qadir was the original owner of the suit-land. He died issueless on 11-2-1985. Therefore, the, petitioners being his real brothers were the only legal heirs of the deceased under the Muslim Law of Inheritance mutation of inheritance was initially entered in their favour. It was subsequently altered and Mutation No.361 was sanctioned in favour of the respondents showing them as sons and widow of Ghulant Qadir deceased. However, the petitioners admitted in para. 6 of the plaint that Ghulam Qadir had married respondent No.4, in the year 1932 but stated that she was minor at that time.

4. We have heard the learned counsel at length. The factum of marriage of Mst. Pathani, the respondent No.4 with Ghulam Qadir stands proved. No documentary evidence was produced to show dissolution of their marriage. The High Court as well as the trial Court were justified in taking the view on the basis of evidence on record that respondent No.4 Mst. Pathani was the widow and respondents Nos, 1 to 3 were the sons of Ghulam Qadir deceased who were entitled to inherit his property. In the case of Ismail Ahmed Peepadi v. Momina Bibi and others (AIR 1941 Privy Council 11; 1990 Pakistan Supreme Court Cases (PSC) 837) the Privy Council held that it was open to the Court upon the proof of the marriage having taken place on a certain date to regard as proved the subsistence of the marriage on a subsequent date unless and until it should be disproved. It was further held that continuance of marriage need not be shown in any special manner. The same view was taken by a Division Bench of the Calcutta High Court in the case of Chandu Lal Agarwal and another v. Bibi Khatemonnessa and others (AIR 1943 Calcutta 76). Illustration (d) of Article 129 of the Qanun-e Shahadat Order, 1984 (10 of, 1984) also makes it clear that the Court may presume that a thing or state of things which has been shown to exist to be in existence within a period shorter than that within which such things or state of things usually cease to exist is stilt ire existence.

5. The High Court has taken the correct view that the petitioners nowhere averred in their plaint that Mst. Pathani had been divorced and was subsequently married to Muhammad Nawaz. It was also not pleaded that the respondents Nos 1 to 3 were the sons of Muhammad Nawaz. It is also in evidence that marriage of Ghulam Qadir was in exchange of marriage of his sister Mst. Rehmatan with the brother of Mst. Pathani

6. The pedigree-table (Exh.P12): was not relied upon both by the High Court as also by the trial Court. The High Court recorded cogent reasons that there was nothing on record to show the basis of its preparation. The respondents were not given any opportunity of cross examination. They had not received any share of inheritance of Muhammad Nawaz. Rather Exh. D-2 was to the contrary. The other document Exh.P-19 (Nikahnama of Ahmed Nawaz respondent) was also considered by the trial Court and findings were justifiably recorded by disbelieving the contents thereof. The respondents had also produced a Nikahnama of Ahmad Nawaz respondent No. 1 as against Exh.P.19.

7. The High Court recorded findings of fact after thorough scrutiny: of evidence of the parties. The view taken by the High Court was such as could be taken in the facts and circumstances of the case. The impugned judgment is well-reasoned and unexceptionable. This is not a fit case for grant of leave to appeal.

8. We do not find any merit in this petition and the same is dismissed accordingly. M. H./A-259/S Petition dismissed.