P L D 1969 Peshawar 118 (PLP)

6. The sole question for determination in this Second Appeal is whether Mst. Zar Jan is the daughter of the prepositus 'from his first wife Mst. Said Marjan. The question involved is .essentially one of fact and cannot be interfered with in second appeal unless the ingredients of section 100, C. P. C., are fulfilled. It is pertinent to mention that the learned Courts below have relied on the following as the basis for giving a verdict against Mst. Zar Jan :‑ (a) That there was no specific pleading in the application which was filed by Mst. Zar Jan on 17‑4‑1962, for being impleaded as a party in this case that she was a daughter from the first wife of Amir Said. The omission to disclose this relationship was held fatal for her; (b) that Mst. Zar Jan did not appear in the witness‑box herself; for which a presumption under section 114 of the Evidence Act was drawn against her; (c) that there was a previous suit between the parties, the judgment of which is Exh. DA/l. The number of the suit is 666/1 and it was decided on 25‑7‑1960. The suit was instituted by Nur Wahid (present defendant No. 3) against (1) Anwar Khan; (2) Dilawar Khan (present respondents Nos. 6 and 7); E3) Ghulam Rasul; (4) Ghulam Khan present defendants Nos. 1 and 2 ; (5) Shams‑ur‑Rahman (6) Mst. Qasim Jan (member of the present plaintiff); (7) Mst. Najam‑un‑Nisa (the present plaintiff); (8) Mst. Zar Jan (present defendant No. 9); (9) Abdul Ghani (present defendant No. 4) and (10) Mst. Sharifa (present defendant No. 5). The said suit had been instituted to challenge the gifts which had been made by defendants Nos. 6 and 7 therein to defendants ‑Nos. 1 to 5 in the previous suit and a declaration was claimed that the said gifts shall not affect the reversionary rights of the then plaintiff. The decree was granted in favour of the then plaintiff as well as the then defendants Nos. 8 to

10. It may be reiterated that Mst. Zar Jan was one of the persons in whose favour also the decree was granted. It has 'been held by the Courts below that the judgment in the previous suit was not res judicata and of no assistance as such to establish the parentage of Mst. Zar Jan, though on certain other points it was res judicata. (d) that there was produced a pedigree‑table for the year 4946‑47 in the form of Exh. P. D., in which the name of Mst. Zar Jan duly appeared as daughter of Amir Said. This ‑document was, however, rejected on the ground that it was tot clear regarding lineage and did not appear to be a genuine one inasmuch as the plaintiff had no knowledge about its preparation and that a possibility could not in the circumstances be excluded that Mst. Zarjan might be a daughter of Mst. Said Marjan (the first wife of Amir Said), from her same previous husband.

7. As regards the ground at (a) above, it is no doubt correct that Mst. Zarjan did not specifically plead in her application dated 17‑4‑1962, as to how she was the daughter of Amir Said. But if the said application is read alongwith the reply which was filed by the plaintiff, no doubt is left that she was claiming parentage of Amir Said and this parentages was not denied by the plaintiff: The Courts below, therefore, were not justified in making the point mentioned at (a) above as a ground for giving a verdict against Mst. Zar Jan. If pleadings of the parties were to be referred to, then the whole of the said pleadings should have been taken into consideration and merely referring to only apart of them was not justified. Looked at from a further point of view, it becomes crystal clear that the parentage of Mst. Zar Jan was not denied by the plaintiff and the plaintiff never pleaded as to who Mst. Zar Jan was and who was her father. The application reproduced above in extenso shows that Mst. Zar Jan specifically pleaded that Amir Said was her father and that she was also a co‑owner in the said property. No specific denial of these averments was made and all that was agitated in reply was that the suit was to restrain those who were interfering with the hissadari possession of the plaintiff and since Mst. Zar Jan was not so interfering, therefore, .she had not been made a defendant by the plaintiff. In this reply it was not pleaded that she was not a daughter of Amir Said. Mst. Zar Jan had also made mention of a judgment of a previous suit to show that therein she was also held as a co‑owner. This averment too was not denied. The pleading on the whole, therefore, helped Mst. Zar Jan instead of going against her in any manner. The Courts below have misread the said pleadings or failed to read and correctly appreciate the whole of them, due to which their judgments stand vitiated and are liable to, be ignored.

8. As regards the point at (h) above, this again was not fatal in the circumstances of the present case. It may be mentioned that in the instant case, Mst. Zar Jan was pursuing the litigation through her Mukhtar Muhammad Hanif who duly appeared as a witness in the case and deposed on oath that Mst. Zar Jan was the daughter of Amir Said from his first wife Mst. Said Marjan. Another witness produced on the same point was Nur Wahid defendant No.

3. It is significant to note that none of these witnesses was cross‑examined at all. It is well settled that the failure to cross‑examine a witness tantamounts to admitting his statement. See Syed Iqbal Hussain v. Mst. Sarwari Begum (P L D 1967 Lah. 1138 at page 1158) and Qasim and others v. The State (P L D 1967 Kar. 233 at p. 237.). In these circumstances, it is obvious that it was not neces sary for Mst. Zar Jan to herself appear as a witness. The view taken by me can constitute a reply to the point mentioned at (a above as well, in that when the relationship of Mst. Zar Jan with Amir Said, as deposed to by the witnesses hereinbefore mentioned, was not being disputed, the mere fact that so detailed particulars were not contained in her application, dated‑ 17‑4‑1962, is neither here nor there. If the plaintiff was interested in obtaining more particulars in this respect, she could have applied to the Court for this purpose. But as she was in no doubt on this point, no such course was adopted by her. In this view of the matter, Mst. Zar Jan could not be disentitled for not giving any such detailed particulars which the learned Courts below considered should have been given by her in her pleadings. The learned Courts below did not apply correct law in view of the over all circumstances of the case and also omitted to notice that the depositions of Muhammad Hanif and Nur Wahid had not been challenged in cross- examination.

9. As regards the point at (c), above, it may be mentioned that even though the previous suit may not strictly constitute as res judicata between the parties but definitely it constituted a relevant piece of evidence for the purpose of showing that in the previous litigation a declaratory decree was given in favour of Mst. Zar Jan as well and this, obviously, could not be unless she was connected with the prepositus in some manner. This circumstance, therefore, gives a support to the case of the appellant Mst. Zar Jan and the learned Courts below acted with material illegality in not so considering it. The failure of the Courts below in ignoring the said provision of evidence renders their judgments as illegal. It may be mentioned that is that suit it was held that the widow and the other daughter had succeeded to the land of Amir Said as a limited estate with no power to alienate the same.

10. As regards the point mentioned at (d), it may be mentioned that in the pedigree‑table (Exh. P. D.) the name of Mst. Zar Jan duly appears in the form of the daughter of Amir Said and it reads as follows: Qudrat Shah | | Jamal Shah ____________________|_________________________ | | First Wife

Ameer Syed

Second Wife Qutab Shah Mst. Qasim Jan Mst. Zar Jan | | | | | Mst. Najam-un-Nisa Amir Jamal | | | __________________________________________ | | | | Muhammad Ghani Abdul Ghani Noor Wahid | Mst. Sharifa Walda Ash bawaja warasat kabiz hai To say that the lineage of Mst. Zar Jan is not shown in that document is, to say with respect to the Courts below, based on misreading of the same. It shows Mst. Zar Jan as a daughter of Amir Said from a separate wife in the same shape as it shows Mst. Najam‑un‑Nisa plaintiff as a daughter from another wife. To read this document, in the form that it shows lineage of Mst. Najam‑un‑Nisa but not of Mst. Zar Jan is not correct. Again the ingenuous assumption that Mst. Najam‑un‑Nisa was not consulted at the time of the preparation of the pedigree table, is quite out of place. Pedigree‑table is a part of the, "Record‑of‑Rights" as contemplated in the Land Revenue Act u and it carried a statutory presumption of truth under section 44 thereof, which should be more so; because this document was prepared in 1945‑46, much before the present litigation between the parties, started. See Chuni Lal v. Nanda and others (174 P R 1888); Ishar and others v. Dolip Singh and others (18 I C 218) and Karmun and others v. Harikishan and others (A I R 1935 Lah. 87 at page 90.). The Courts below acted with material illegality and irregularity in not C attaching the aforesaid statutory presumption to this document. They brushed it aside by simply observing that Mst. Zar Jan may be daughter of Mst. Said Marjan from her previous husband. It is pertinent to mention that it was nobody's case either in the pleadings or in the form of any other material on the record that Mst. Said Marian had some previous husband and as to who he was. In this behalf, the finding of the learned Courts below is based on conjectures and must, therefore, be ignored.

11. Apart from what has been stated above, there is the joint written‑statement of Anwar Khan and Dilawar Khan (respondents Nos. 6 and 7 herein) and also of the plaintiff Mst. Najam‑un‑Nisa and her mother Mst. Qasim Jan, which they filed in the previous Suit No. 666/1 in the form of Exh. D. A/3, which may be read along with previous plaint Exh. D. A/2 (particularly para. 2 thereof). Then there is a certified copy of the statement of Mst. Qasim Jan deceased (Exh. D. A/4), which is admissible under section 32(5) of the Evidence Act. When all these documents and statements are read together, it becomes clear that Mst. Zar Jan is the daughter of Amir Said. There is however a sentence occurring in the previous deposition of Mst. Qasim Jan which is to the following effect In this statement, Mst. Qasim Jan admits that Zar Jan was her "not real" (consanguine) daughter. This statement has been interpreted by the Courts below as to mean that Mst. Zar Jan might be the "pichhlag" daughter of her mother Mst. Said Marian. , If that were so, then Mst. Qasim Jan would not call her as "her" daughter, whether real or unreal. She could be "her" unreal daughter only if she was from the same husband; because only then could she be called her daughter in any capacity. The word meri in the sentence reproduced above is very significant. The Courts below have misread the deposition of Mst. Qasim Jan and also the other attending documents hereinbefore mentioned and their finding for this reason as well will have to be set aside. It may be mentioned that no objection to the aforesaid documents was taken when they were exhibited in the trial Court which means that the plaintiff had no dispute about the correctness of these statements as also about the identity of the person whose statement they purported to be and probably it was for the reason that the plaintiff herself was a party in the previous case; certified copies from which were filed herein and she had thus no doubt or objection regarding the same. Even before me, no objection of any kind was raised about these exhibits.

12. When confronted with all what has been written above, learned counsel for the plaintiff‑respondent argued that there was a mutation Exh. P. W. 2/1, which was entered on 29‑5‑1937 and was attested ' on 30‑7‑1937, in which, a short pedigree‑table was made; wherein only Mst. Qasim Jan (widow) and her daughter Mst. Najam‑un‑Nisa were shown as eligible to succeed to Amir Said. From this, learned counsel wanted to argue that had Mst. Zar Jan been the daughter of Amir Said, then she also would have been shown in the pedigree‑table. Apart from the fact that pedigree table made in the mutation proceedings do not possess much evidentiary value, the short answer to the aforesaid matter can be that Mst. Zar Jan had married long before and, therefore, being a married daughter, was excluded under custom from inheritance as against Mst. Najam‑un‑Nisa who at that time was an unmarried daughter. The pedigree‑table made in the said mutation, therefore, is of no significance. Again, parentage of persons mentioned in the pedigree‑table may carry some pre sumption of truth but it can throw no light regarding parentage of those whose names are not mentioned in the mutation at all. Another thing to be noticed is that it is this very mutation which later on provided the bone of contention for the parties and the question herein involved is to examine the correctness thereof and not to decide the case again with reference to the same mutation. Apart from the aforesaid mutation, learned counsel for the plaintiff relied on no other evidence in support of the case of Mst. Najam‑un‑Nisa nor raised any other point of fact or law before me. It is thus obvious that Mst. Najam -un‑Nisa has, in the circumstances, hereinbefore mentioned, no case at all when she was trying to deprive Mst. Zar Jan from her legal share in the inheritance of her father.

13. The upshot of the above discussion is that Mst. Zar Jan being the daughter of Amir Said would be entitled to get 1/3rd share in the land left by her said father. Since Mst. Najam un‑Nisa got married and thereafter her mother Mst. Qasim Jan also died, succession is to be regulated under Shariat Act from Amir Said. In actually working the shares of the parties will thus be as follows :‑ (1) Mst. Najam‑un‑Nisa (plaintiff)=19/48 share. (2) Ghulam Rasul and Ghulam Jan (defdts. No. 1 and 2)=3/48th share collectively. (3) Nur Wahid and Abdul Ghani and Mst. Sharifa (Defts. Nos. 3 to 5) =10/48 share collectively. (4) Mst. Zar Jan (Deft. No. 9)=16/48 share. Anwar Khan and Dilawar Khan defendants Nos. 6 and 7 have no independent share but they are the donees from the plaintiff or from the share of the plaintiff subject to incidents of the previous decree hereinbefore mentioned which it may be reiterated stated that the gifts wilt not be binding on others. Defendant No. 8 has no share at all. The contesting parties, therefore, being co‑owners are entitled to retain the land in that capacity. It is not disputed by the learned counsel for the parties that if Mst. Zar Jan is held to be daughter of Amir Said, then the shares of the parties will be as reproduced above. As a matter of fact, these shares were worked out by them on separate sheets of paper, which are duly signed by them and which have been placed on file. The appeal is accepted and judgments and decrees of the Courts below are set aside.

14. In view of what has been said above, the decree which is to be passed in this case shall be to the effect that the plaintiff and other persons mentioned in para. 13 of the judgment herein (including defendant No. 9 Mst. Zar Jan) are the co‑owners of the suit land to the extent of the shares shown against their names. The plaintiff had claimed possession of one‑half share of the total suit land, but now her title being only to the extent of 19/48th share, no decree for possession can re passed in her favour as, according to her own showing she is in possession of more than this. The prayer for possession, therefore, is. rejected. To remove doubts, however, it is made clear for both sides that this judgment and decree will not be a bar in the way of other co‑sharers to claim mesne profits or their shares etc., from the plaintiff or such other relief in the form, of partition or otherwise which may be available to them under law. The relief of injunction claimed against respondents. Nos. 3 to 5 is also rejected because they themselves are co‑owners to be considered in joint possession alongwith others, especially, when in the previous suit and in the instant suit as well, it has already been held that the possession of Mst. Najam‑un‑Nisa is not adverse to any co‑owner and this finding was not challenged before me. Defendant No. 8 Nur Wali son of Gul Akbar is, according to excerpt of Khasra Girdawari filed by the plaintiff herself, merely a tenant under Nur Wahid defendant No. 3 etc., who is a co‑owner himself, therefore, no injunction can be issued against him either. The appellant will get her costs throughout from Mst. Najam‑un‑Nisa plaintiff who has, been responsible for this futile litigation. A. E. Appeal accepted.