P L D 1969 Peshawar 85 (PLP)

(4) Whether the plaintiff is estopped by his conduct from bringing the present suit ? (5) Whether the plaint is vague not containing a correct description of the property in suit and is liable to rejection on that account? (6) Is plaintiff the son of Dost Muhammad Khan and has legal right to the inheritance of Khawaja Muhammad Khan (son of Dost Muhammad), which is the subject‑matter of dispute in the present suit to the exclusion of defendants lto3? (7) Whether the whole of village Shakhot comprising 11 Mits and two Mits? After the parties produced their evidence and argued their respective cases, the trial Court, as already stated, dismissed the suit of the appellant. His First Appeal also having been dismissed, the appellant has come up in this Second Appeal.

8. Mr. Peer Bakhsh Khan, the learned counsel for the appellants stated that he would confine his arguments only to Issue No. 6, as reference to other issues was not relevant for the purpose of this appeal. In his attack upon the findings of the Courts below on this issue, the learned counsel argued that the said findings were wholly erroneous inasmuch as they had been arrived at in disregard of the material evidence or by misreading the same in material respects. He further argued that in view of the admissions of respondents 4 and 5, which were made in their written statements, the appellant was at least entitled to a decree against them, but the Courts below wholly misconceived the legal position and thereby fell in error by dismissing the entire suit of the appellant. In support of that contention the learned counsel relied upon the provisions of Order XV, rule 2, Civil Procedure Code.

9. In order to appreciate the contention of Mr. Peer Bakhsh Khan, reference may be made to the evidence on record to find out as to upon what reasons the Courts below dismissed the suit of the appellant. Apart from appearing as his own witness, the appellant examined Lal Khan Girdawar P. W. 1, Qazi Mirdad Naib‑Tehsildar P. W. 4, Muhammad Hamayun, Patwari P. W. 5, Muhammad Ayub Khan P. W. 7, Ghulam Sarwar Patwari P. W., and Abdur Rashid, Sadar 0anungo P. W. He also relied upon documentary evidence such as Exhs. P. 3/1, P. 4/l, P/A, P/B, P. 5/1, P. 6/1, P. 6/2, P/X, P/Y and P/X.

10. As against this Muhammad Yousuf Khan, respondent appeared as his own witness as well as witness for respondents 2 and

3. These respondents also examined other witnesses, namely. Muhammad Maroof Khan, Muhammad Hussain Khan, Syed Ajab, record keeper and Nawab Farid Khan of Darband. The documentary evidence upon which reliance was placed by these respondents was brought on record as Exhs. D/l, D/2, D/3 and D/4.

11. This being the entire evidence on record, which the Courts below have properly scrutinised before coming to the impugned conclusion, normally the same could not be reviewed by this Court in Second Appeal, but for the fact that in so for as the said conclusions were based upon the interpretation of docu mentary evidence, they could still be reviewed as the proper A legal effect of a document or a proved fact is always a question of law. For this conclusion reference may be made to only one judgment of the Supreme Court of Pakistan reported in Muhammad Hayat Khan v. Yar Muhammad Khan (P L D 1966 S C 612).

12. However, before considering the documentary evidence reference may first be made to the evidence of the appellant himself and his witnesses which would help in appreciating the overall conclusions of the Courts below including their findings in regard to the documentary evidence. In his statement before the trial Court the appellant corroborated the contents of the plaint, but for the sake of brevity his examination‑in‑chief may not be reproduced. In cross‑examination he admitted that long before the settlement scheme was introduced in Phulra State a dispute had arisen between Kbawaja Muhammad Khan and Khani Zaman, the sons of Dost Muhammad Khan, in regard to the partition of their father's property and that the said dispute was settled by Khan Bahadar Atta Muhammad Khan, who was then the Nawab of Phulra. This decision, which is dated 25th June 1934, is Exh. D/1 on record. He further stated that after the death of Khan Atta Muhammad Khan, Khawaja Muhammad Khan again approached his son Abdul Latif Khan for the same purpose who, however, referred the case for decision to Lala Permanand, Civil Judge, Phulra, but he was not aware as to what decision was given on that reference. The defendants have produced a copy of the judgment of the said learned Judge which is Exh. D/2 on record. He went on to state that the rent regarding five crops had been exclusively recovered by the respondents, but the rent of two crops was still lying with the Deputy Commissioner.

13. Muhammad Ayub P. W., who was produced by the appellant, stated in his evidence before the trial Court that he knew both parties, who were his distant relations. He further stated that he did not know the name of the grandfather of the appellant as he did not know the names of his own sons including his eldest son whose name he could not recall. He, however, stated that the appellant was the brother of Khani Zaman and Khawaja Muhammad Khan from another mother.

14. This being the entire oral evidence produced by the appellant (all other witnesses are all Government servants having produced record) could it really be said that he succeeded to prove to be the brother of late Khawaja Muhammad Khan? According to his own admission the entire property of Dost Muhammad Khan had been the subject‑matter of dispute between Khani Zaman and Khawaja Muhammad Khan in 1934, and the said dispute was decided by Khan Bahadar Atta Muhammad Khan, who was then the Nawab of Phulra. He further admitted that after Atta Muhammad Khan died, Khawaja Muhammad Khan again tried to reagitate the same dispute before his son Abdul Latif Khan who, however, referred the matter to Lala Permanand, the then Civil Judge of Phulra State for decision. In this view of the matter it is inconceivable that if the appellant was really the son of late Dost Muhammad Khan he would have simply kept quiet and taken no objection as to why he was being excluded from those proceedings which related to the partition of the property of his father. Strangely enough even in his evidence before the trial Court the appellant did not give any explanation for his said conduct which in the result must give rise to strong presumption that his claim to the property of late Khawaja Muhammad Khan was wholly baseless.

18. It will have been noted that apart from these letters .the entire claim of the appellant arose sometime from 1952, when for the first time the revenue laws of the Government were extended to Phulra State and in consequence of the settlement of a lands in that area revenue record and pedigree‑tables were pre‑ ‑pared. Admittedly the claim of the appellant was grounded on Exhs, P. 3/1 and P. 4/1 upon the basis of which his name was j entered in the revenue record and in the family pedigree‑table of late Dost Muhammad Khan. Therefore the entire claim of the appellant depended upon these documents and in case it was held that they were shorn of any legal authority then there would be no escape from the conclusion that his claim was baseless. Let us therefore, examine these documents to see if they really provided a sound foundation for the entry of the appellant's name in the revenue record and family pedigree‑table of late Dost Muhammad Khan.

19. To begin with it might be mentioned that a rebuttable presumption of truth attaches to mutation entries in revenue record and the said presumption would continue to operate unless it was dislodged by more convincing evidence. In this respect reference may first be made to Exh. P. 3/1 according to which respondents 1 to 3 had admitted the appellant to be their uncle but strangely their statements were neither produced before the trial Court nor was any explanation given for that c mission. When confronted with Exh. P. 3/1, Muhammad Yousuf respondent denied its genuineness and said that he had given no statement to P. W. Girdawar Lal Khan. It is noteworthy that when Lal Khan was examined in the trial Court he did not mention that he either knew Muhammad Yousuf respondent or that he was the same person whose statement he had recorded which formed the basis of his report Exh. P. 3/1. In this view of the matter a clear doubt arises as to the genuineness of Exhs. P. 3/1 and P. 4/1 which in the result must necessarily recall upon the authenticity of the entry of the appellant's name in the revenue record and the pedigree‑table of the family of late Dost Muhammad Khan.

20. According to the appellant himself, who was examined in the trial Court on 19th December 1960, Khawaja Muhammad Khan had died 4‑5 years ago which would mean that when Lal Khan Girdawar is alleged to have recorded the statements of respondents 1 to 3 in 1952, Khawaja Muhammad Khan was still alive. Consequently the question arises as to why Khawaja Muhammad Khan himself was not examined particularly when he had no son and after his death his inheritance would be the subject -matter of claim by his collateral. This circumstance further gives rise to the presumption that had he been examined in his lifetime he would not have supported the claim of the appellant.

21. In this context reference may once again be made to the admissions of the appellant that as long ago as 1934, the entire property of late Dost Muhammad Khan was the subject‑matter of dispute between his two sons, namely Khani Zaman and Khawaja Muhammad Khan and the said dispute was decided by Khan Bahadar Atta Muhammad Khan, the then Nawab of Phulra. He further admitted, that after the death of Atta Muhammad Khan, Khawaja Muhammad Khan again raised the same dispute before Abdul Latif Khan who, however, referred the matter to Lala Permanand, the Civil Judge of Phulra State for decision. These admissions appear to be fatal to the claim of the appellant for the simple reason that having known of these proceedings he kept quiet and raised no objection although he claimed to be a son of late Dost Muhammad Khan. Surely he could not have conducted himself in that manner unless he knew that he was in no way related to the family and consequently could not claim any share in the property.

22. The last piece of documentary evidence in the series was comprising three letters (Exhs. P/Y, P/X and P/Z) which as already stated were written by Muhammad Yousuf respondent to Sher Muhammad Khan the son of the appellant. In these letters Sher Muhammad Khan was addressed as brother from which it was sought to be proved that the appellant was really a son of Dost Muhammad Khan. The Courts below rejected the contention of the appellant holding that these letters were couched in a language as if they were addressed to a servant. I entirely agree with these conclusions for the simple reason that just because in the title of a letter a person is addressed as brother that would not necessarily mean that the parties were related in that category. For all these reasons there was no doubt that Exhs. P. 3/1, P. 4/1, P/A and P/B were doubtful and consequently they could not sustain the claim of the appellant.

23. Mr. Peer Bakhsh Khan, the learned counsel for the appellant strenuously argued that in their written statements respondents 4 and 5, who were respectively the widow and daughter of late Khawaja Muhammad Khan, admitted that the appellant was their uncle and consequently he was at least entitled to a decree against that part of the inheritance which fell to the share of these ladies. In support of that contention the learned counsel relied upon the provisions of Order XV, rule 2, C. P. C., but I am afraid there is no force in that contention. As already stated the case of the appellant was necessarily dependent upon four documents Exhs. P. 3/1, P. 4/1, P/A and P/B, but since I have already come to the conclusion that these documents were doubtful, reliance upon the admissions of respondents 4 and 5 would be wholly fallacious. Even otherwise, out of the said two respondents, only respondent No. 4 was examined, who in her evidence completely repudiated her admission made in the written statement. The learned counsel admitted that she was not confronted with those admissions and consequently they could not be relied upon by the appellant.

24. As against this the respondents produced three witnesses, namely Muhammad Maroof, Muhammad Hussain Khan and Nawab Farid Khan of Darband all of whom are related to the family of late Dost Muhammad Khan. Each one of these witnesses have repudiated the claim of the appellant that he was in any way related to late Dost Muhammad Khan, and no reason was shown as to why their testimony should be disbelieved. In any case it was inconceivable that they would have perjured themselves for no apparent reason if the appellant was really the son of Dost Muhammad Khan as normally no person would be interested to deny the paternity of any one if his claim was otherwise genuine. The Courts below hake accepted the evidence of these witnesses and I have not been able to persuade myself to disagree with their conclusions apart, from the fact that the said conclusion could not be interfered with in these proceedings.

25. As to the documentary evidence produced by the respondents Exh. D/1 is the judgment dated 25th June 1934, which late Khan Bahadar Atta Muhammad Khan had delivered in regard to the dispute of Khawaja Muhammad Khan and Khani Zaman in regard to the partition of property of their father Dost Muhammad Khan, and Exh. D/2 is the judgment of Lala Permanand, Civil Judge, Phulra, whereby he dismissed the application of Khawaja Muhammad Khan relating to the same property. Mr. Peer Bakhsh Khan, the learned counsel for the appellant admitted that both these judgments had judicial force, as in those days the Khan of Phulra enjoyed judicial powers and was also competent to appoint Civil Judge within his State. For their conclusions the Courts below had relied upon these judg ments to which Mr. Peer Bakhsh Khan, the learned counsel for the appellant, took strong exception. According to him the appellant was not a party to the proceedings in which those judgments were delivered, and consequently the Courts below could not have relied upon them against the appellant. I am afraid there is no force in this contention. Admittedly the judgments in question indicate the expression of opinion by conduct of the close relatives of late Dost Muhammad Khan vis‑a‑vis his relationship with the appellant and consequently they were relevant under section 50 of toe Evidence Act which reads: "

50. When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject is a relevant fact." The following passage appearing at page 369 of the Law of Evidence by Munir (Volume I, IV Edition)is instructive:‑ Instances of conduct held relevant‑Distribution and devo lution of family property is very valuable evidence of family conduct . Where the fact to be proved vas an adoption alleged to have taken place about 40 years before the suit, evidence of enjoyment of the properties of the adoptive father by the alleged adopted son and evidence of acquiescence of such enjoyment by persons who, but for the adoption, could have been entitled to possession of such properties was held admissible under this section. It would be seen that in order to determine the relationship of one person to another the learned author has laid great emphasis on the distribution and devolution of family property which, according to him was very valuable evidence of "family conduct".; Seen in this context the fact that the entire property of late Dost Muhammad Khan was the subject‑matter of dispute between his two sons, namely, Khawaja Muhammad Khan and Khani Zaman in the year 1934, was undoubtedly a strong piece of evidence by expression of opinion by conduct of these two brothers against the claim of the appellant that he was also a son of late Dost Muhammad Khan. This circumstance assumes further significance when it is recalled that inspite of having the knowledge of these proceedings, the appellant did not raise any objection and let those proceedings go by not on one but two occasions first before Khan Bahadar Atta Muhammad Khan of Phulra and then before Lala Permanand, the Civil Judge of that State. Assuming for a moment that these two judgments could not have been relied upon by the Courts below even then the conduct of the appellant and his admissions were sufficient to disprove his claim. Surely he could not have remained a silent spectator when he was being deprived of his share, if any, the property of late Dost Muhammad Khan, but the fact that he raised no objection must lead to the only conclusion that his claim was wholly baseless.

26. Mr. Peer Bakhsh Khan, the learned counsel next argued that in his life time Dost Muhammad Khan had given certain property to the appellant in Mauza Garhwal which by itself was enough to show that the claim of the appellant was well founded. There is no force in this contention either. Admittedly Khawaja Muhammad Khan and Khani Zaman were also the sons of late Dost Muhammad Khan and yet they had received no property from their father in his life time. The fact that the appellant had been treated differently would rather go to prove that for some consideration late Dost Muhammad Khan desired to reward him in his life time as after his death he might not have received any share in his property. This circumstances rather lends support to the contention of the respondents that the appellant had been treated in that manner only because he was an old servant as otherwise he would have been entitled to share the property of late Dost Muhammad Khan in any case if he was really one of his sons. For all these reasons I am satisfied that the claim of the appellant was wholly spurious as he failed to substantiate it by any evidence on record.

27. Before parting with this judgment it may be pointed out that the very suit of the appellant appears to have been miscon ceived and wholly incompetent. It is an admitted position that respondents 1 to 3 had laid challenge to his claim that he was the son of late Dost Muhammad Khan which necessarily amounted to casting doubt on his paternity. In this view of the matter the appellant should have rather first filed a declaratory suit in an effort to establish his claim that he was the son of late Dost Muhammad Khan and thereafter pursued the present remedy. Strangely, however, he rushed to the Civil Court, staking the very question of his paternity, upon certain doubtful entries in the revenue record from which course he should have been well advised to desist.

28. It appears that the Courts below did not advert to this aspect of the case nor to the implications of a decree which might have been passed in favour of the appellant. Assuming for a moment that if he had succeeded to obtain a decree, from Court, by implication he would have been declared to be the son of late Dost Muhammad Khan and thereby connected to the family of Khans of Phulra State through lineal descent. Surely no such thing could be done by any Court unless a proper opportunity was given to all these Khans to contest the claim of the appellant if they so desired. After all it is a well known principle of law that once a decree of this nature is passed by a competent Court it operates in rem i. e. to say against the world at large and in order to be valid it must be shown that the notice of the proceedings had been given to all persons who might have been interested to deny the claim of the decree holder. Admittedly, the appellant did not implead the other Khans of Phulra and, therefore, his suit, the substantial object of which was to secure a declaration that he was the son of late Dost Muhammad Khan, must be held as incompetent.

29. In view of these conclusions I entirely agree with the Courts below and consequently dismiss this appeal with costs. A. E. Appeal dismissed.