1972 PLP 646 (SCMR)

SALAHUDDIN ARMED. J.‑This appeal, by special leave, is from the judgment and order of the then High Court of West Pakistan, Peshawar Bench, dated the 8th June 1964, in a second appeal. It has been contended before us that the impugned order of the High Court is not based on evidence. The appeal arises out of a suit filed by respondents Haji Ghawar Khan and his son Dilawar Khan as representatives of Mst. Zaujan, wife of Haji Ghawar Khan, for the share which she had in the estate of her father Mahmood The defendants in the suit were a widow, two other daughters of Mahmood and descen dants of Mst. Rehana the sister of Mahmood. In the Suit (No. 156/1), the plaintiffs asked for possession of 2/9th share of the entire estate of Mahmood. The suit was, however, decreed in respect of the estate of Mahmood minus 40 kanals of land, which had been given by Mahmood to his sister Mst. Rehana by way of gift. The learned Additional District Judge allowed the appeal of the defendant‑appellant and dismissed the, suit. On second appeal, the High Court accepted the appeal of the plaintiffs‑res pondents Haji Ghawar Khan and Dilawar Khan. It appears that the parties proceeded to trial, inter alia, on the following two issues;

(4) Whether Mst. Zaujan was"the daughter of Mahmood? (5) If issue No. 4 is proved whether the, plaintiffs are the successors‑in‑interest of Mst. Zaujan ? Both these issues were found in favour of the plaintiffs by the trial Court. The trial Court held that Mst. Zaujan was the daughter of Mahmood by his wife Mst. Hanifa and that Mst. Zaujan died after the death of her father. In her appeal before the Additional District Judge, the appel lant never mentioned in her grounds of appeal the plea that Mst. Zaujan had pre‑deceased her father Mahmood. The only plea she raised in the ground of appeal was that Mst. Zaujan was not the daughter of Mahmood and that her mother Mst. Hanifa was not the wife of the said Mahmood. Nevertheless, the learned Additional District Judge made out a new case for the defendant-appellant appellant whether Mst. Zaujan had pre‑deceased her father Mahmood oblivious of the fact that no Issue having been framed on this question the plaintiffs were not required to lead evidence on this question. The learned District judge having concurred with the findings of the trial Court that Zaujan was the daughter of Mahmood by his wife Mst. Hanifa was not required to proceed further and determine a question that was not raised by the parties themselves. In any event, if the learned Additional District Judge had considered that the further question whether Mst. Zaujan had pre‑deceased her father required determination, he should have framed an issue on the point and taken additional evidence on it and then decided it or should have remanded the case to the trial Court to try the issue. His judgment shows that he 'incidentally' raised the question himself and then decided it In the absence of any notice to the plaintiffs that they were required to prove this question raised for the first time by the learned Judge himself and that too 'incidentally'. Furthermore, the learned Additional District Judge has erroneously stated in his judgment that this question was covered by Issues Nos. 4, 5 and

8. Issues Nos. 4 and 5 have already been reproduced elsewhere. Issue No. 8 is as follows (8) To what share in the inheritance of Mahmood are the plaintiffs entitled? It is, thus, evident that this question was not covered by Issues Nos. 4, 5 and

8. There is, therefore, no doubt that the plaintiffs‑respondents were taken by surprise and they were seriously prejudiced, as observed by the learned Judges of the High Court. Nevertheless, the learned Judges of the High Court‑proceeded to determine the question upon such materials as were available on the record, and found that Mst. Zaujan survived her father Mahmood. This finding has been based on the admission of defendant Badana, another daughter of Mahmood, in her written statement as well as in her evidence in Court and on the admis sion of her husband and attorney D. W 3 Baz Gul in his evidence. These evidence have gone unchallenged evidently for the reason that the parties had gone to trial on the issue whether Mst. Zaujan was the daughter of Mahmood or not. Their evidence lend support to P. W. Dilawar on this point. The trial Court did not rely on the evidence of Pir Snahzada, Shahbaz and Syed Ahmad because they were interested witnesses and were unreli able. The Additional District Judge, however, relied on the evidence of Dilawar, S\ed Ahmad and Abdur Rahman and found that Mst. Zaujan had been; ceased her mother Hanifa. The learned Judges of the High Court have observed that although Syed Ahmad stated in his evidence that Mst. Zaujan had pre deceased her father, he, in hid written statement filed along with Mst. Zaujan, had admitted Mst Zaujan's claim to her father's property. The learned Judges have observed that the learned counsel appearing for the defendant Syed Ahmad and Zaujan made a statement at the Bar that he had instructions from his clients to adheres to the admission made in the written statement by Syed Ahmad and Mst. Zaujan jointly and rot to rely on the testimony of Syed Ahmad given in Court. Mr. Abdul Rahman, learned counsel for defendant Maw'. Khaparai said that he had infractions to categorically concede the claim of Mst. Zaujan. Respondents Khan and his brother Shahbaz, who were both present in the High also told the that they support ed the claim of Mst. Zaujan and her successor‑in‑interest. De fendants Mst. Shahzad Gul and Khanzad Gai, too, did not oppose the plaintiffs' claim. On a consideration of the evidence on record the learned Judges finally concurred with the finding of the trial Court that Mst. Zaujan survived her father, and the plaintiffs were, therefore, entitled to succeed them and the High Court, accordingly, restored the order of the trial Court and decreed the plaintiffs' suit. The findings of the High Court are thus, based on evidence and are supported by good reasons. We, accordingly, dismiss the appeal with costs. Appeal dismissed.