P L D 1961 (W (PLP)

WAHIDUDDIN AHMAD, J.‑--This is a first appeal against the judgment of Mr. Abdul Wali Makhdoom, First Class Sub‑Judge, Mirpurkhas in First Class Suit No. 67 of 1958, dated 30th January 1960. One Ali Muhammad son of Lal Muhammad Chandio of village Talhi, Taluka Umerkot, died somewhere in 1953 and left 278 acres of agricultural land situated in Deh Khuda Bux, Taluka Umerkot, and about 8 survey numbers of Barani land in Taluka Mithi. The property in dispute was claimed by appellants Nos. 1 and 2 before the Revenue Authorities as the legal heirs of the deceased. Respondent Muhammad Bux also claimed the property in dispute as sole heir of the deceased on the allegation that he was the only surviving male descendant of the deceased. Respondents Nos. 3 and 4 are admittedly the widows of the deceased and their share in the property in dispute was not disputed by any of the contesting parties. After pro longed inquiry the Assistant Collector. Naravalley, Mirpurkhas, by an order dated 30th March 1955, accepted the claim of the appellants and mutated the lands in dispute in their favour in the Record of Rights. Thereupon respondent Muhammad Bux brought a suit on the regular civil side in the Court of the First Class Sub‑Judge, Mirpurkhas, and claimed 12 annas share in the property in dispute on the ground that he was the nearest relative of the deceased being his nearest cousin in third degree and claimed possession of the property in dispute from the contesting defendants‑appellants. His case before the Revenue Authorities and the learned Subordinate Court was that his father Ghulam Ali was the son of Shadman Khan who was the son of Dhingano Khan. He alleged that Dhingano Khan left two sons: Shadman Khan and Sawand Khan. Shadman Khan had two sons Ahmed and Ghulam Ali Khan, and from the branch of Shadman Khan he is the only surviving male descendant. As regards the branch of Sawand Khan, the admitted position is that he left three daughters and two sons Lal Muhammad and Dhingano. Dhingano died issueless and Lal Muhammad left Ali Muhammad deceased and Mst. Rajbai wife of Sono. The appellants claimed to be the sons of Rajbai, who pre‑deceased Ali Muhammad her brother. The pedigree table on which respondent Muhammad Bux relied is Exh. A‑17 at page 26 and is as under: AHMED KHAN ________________________|___________________________ | | | Allah Bachayo Sahib Khan Dhingano Khan | ___________________|_____ | | Shadman Khan Sawand Khan _____________|___________ | | | | Ahmed Ghulamali Khan | | | Muhammad Bux | (Plaintiff) | | ________________________________________________| | | | | | Bhudi Bhati Rajbai Lal Dhingano Muhammad | ___________________|______________ | | Ali Muhammad (deceased) Rajbai wife of Sono | | W______________|__________W _________|_____ | | | | Juma Saidan Muhammad Amin Dhanibux (Defendant No. 3) (Defendant No. 4) (Defendant (Defendant No. 1) No. 2) The appellants resisted the suit mainly on two grounds viz. that the pedigree table is wrong and that respondent Muhammad Bux's grandfather Shadman was not the son of Dhingano Khan as claimed. According to them Shadman was the son of Ahmad A whose wife re‑married Dhingano from which she had no issue and they claimed that as they are the sons of the sister of deceased Ali Muhammad, they are entitled to inherit exclusively in the absence of any other sharers or distant kindred. The ‑learned Subordinate Judge accepted the respondents' case and held that respondent Muhammad Bux was the nearest cousin in third degree of. Ali Muhammad deceased and was entitled to 12 annas share in the property in despute. Both the defendants- appellants Amin Muhammad and Dhanibux have challenged the finding of the learned Subordinate Judge and have strongly urged in appeal that respondent Muhammad Bux's grandfather Shadman Khan was not the son of Dhingano Khan but of one Ahmed whose wife re‑married Dhingano and from whom she had no issue. Mr. Muhammadali Sayeed, the learned counsel for the appellants, has taken us through the entire record in this case and has attacked the judgment of the learned Subordinate Judge inter alia on the ground that the onus of the issue whether respondent Muhammad Bux was the legal heir of deceased Ali Muhammad was on him and that he failed to discharge this onus. He also contended that the learned Subordinate Judge instead of considering the case of the contesting respondents has first considered the case of the respondents and after demolishing it has considered the relationship of Muhammad Bux with deceased Ali Muhammad. After hearing the learned counsel for the parties we are satisfied that the view taken by the learned Subordinate Judge that Shadman Khan was the son of Dhingano Khan and not of Ahmed as alleged by the respondents is abso lutely correct and warranted by the evidence on the record. The parties in support of their contentions examined both oral and documentary evidence in the case. Respondent Muhammad Bux examined eight witnesses in support of his case. It may be noticed at this stage that the two widows of deceased Ali Muhammad viz. Mst. Juma and Mst. Saidan have supported one of the contesting parties' case. Mst. Juma, who is living with the appellants, has supported the appellants' case and Mst. Saidan, who is living with respondent Muhammad Bux, has supported his case. Respondent examined P. W. 2 Mst. Saidan, P. W. 3 Dharamdas, P. W. 4 Ali Muhammad P. W. 5 Kadir Bux, P. W. 6 Revachand, P. W: `7 Hyder and P. W. 8 Ahmed besides himself as P. W. 1 in support of his case. Out of the above‑mentioned witnesses, P. W. 3 Dharamdas and P. W. 6 Revachand have not stated anything on the merits of the case but had produced certain Revenue records and other documents proved in the case on behalf of respondent Muhammad Buy. So their evidence on the merits of the case is not of any impor tance. P. W. 2 Mst. Saidan stated that Muhammad Bux is a distant cousin of Ali Muhammad. He used to live jointly with them during her husband's lifetime. Deceased Ali Muhammad got him married and he used to look after his land. On the deceased's death, Muhammad Bux spent on ceremonies and paid up debts and the deceased used to claim Muhammad Bux as one of his legal heirs. P. W. 4 Ali Muhammad (Exh. 22) is a Zamindar paying Rs. 17,000 as land assessment. He took the land in dispute from deceased Ali Muhammad in the year 1943 by a registered deed (Exh. 23) dated 16th November 1943. He stated that the deceased gave the land in dispute in the year 1944‑45 for seven years on his own behalf and on behalf of Muhammad Bux as well as his mother as the plaintiff at that time was a minor. He further stated that deceased Ali Muhammad represented to him that Muhammad Bux was his cousin and was putting up with him. P. W 5 Kadir Bux (Exh. 24) is a caste -fellow of Ali Muhammad deceased. He lives at a distance of about 11 mile from the village of the deceased. He stated that the land in dispute is about two or three blocks away from his own land. He also stated that Muhammad Bux is a distant cousin of Ali Muhammad. He further stated that Ali Muhammad was the son of Lal Muhammad who again was the son of Sawand, who was the son of Dhingano. According to him another son of Dhingano was Shadman. Muhammad Bux respondent is son of, Ghulam Ali who is son of Shadman brother of Sawand. Dhingano was son of Ahmad Khan. Muhammad Bux and Ali Muhammad are Ahmadani Chandios. P. W. 7 Hyder at the time of the evidence in Court was about 72 years of age. He is also a caste‑fellow of the parties. He stated as under:‑ "I know them since ancestors and we are on visiting terms. Ali Muhammad died 5‑6 years ago. He left surviving distant cousin Muhammad Bux and 2 widows, and Amin Muhammad, and Dhani Bux are sisters sons of deceased Ali Muhammad. Rajbai was their mother and she predeceased Ali Muhammad Amin Muhammad and Dhani Bux are not connected with us within 5‑6 generations. They are known as Buxani and Ali Muhammad others are known as Ahmadani. Muhammad Bux too is known as Ahmadani. Ali Muhammad was son of Lal Muhammad, who was son of Sanwan who was son of Dhingano who was son of Ahmad. Muhammad Bux is son of Ghulamally who again is son of Shadman who is son of Dhingano. It is not a fact that Shadman is son of Ahmad whose wife remarried Dhingano but he is real son of Dhingano. Hisab had never been brother of Dhingano. It is not a fact that Dhingano was son of Lal Muhammad." The last witness examined on behalf of the respondent is P. W. 8 Ahmad. He is also a Zamindar paying Rs. 8,000 as annual land assessment. He is not related to the parties but was a neighbour of the deceased and used to live one block away from his house. He also stated that Muhammad Bux was son of Ghulamally who was son of Shadman who was son of Dhingano who was son of Ahmad. They were known as Ahmadani. He also denied that Muhammad Bux was the son of Ahmed and not that of Shadman. He made a categorical statement that Ahmad's wife did not re‑marry Dhingano. As regards the appellants, he stated that they were the sons of Rajbai sister of .Ali Muhammad deceased and were called Budhani. This is all the evidence on behalf of the respondents in support of their case. The appellants examined D. W.

1. Dhani Bux (Exh. 33), D. W. 2 Sain Bux (Exh, 37), D. W. 3 Hashim (Exh. 40) and 1], W. 4 Mst. Juma (Exh. 41). Muhammad Amin, appellant No. 1, was not examined as a witness in the case at all. Dhani Bux stated that Muhammad Bux was the son of Ghulamally son of Shadman who was again son of Ahmed who was son of Umedally. According to him Mst. Haso was mother of Shadman and wife of Ahmed. Ahmed died and on his death Mst. Haso married Dhingano from whom she got no issue. Similarly, D. W. Sain Bux a caste‑fellow of the parties, supported the case of the appellants and stated that he knew the deceased Ali Muhammad since the age of discretion. He had joint Khata with Ali Muhammad. He knew Muhammad Bux respondent since his age of discretion. He knew their father Ghulamally whose father was Shadman. Shadman was son of Ahmed. Haso is mother of Shadman. She had re‑married Dhingano and she had no son from Dhingano. D. W. Hashim alleged that he used to have batai of Ali Muhammad's land for very long. He also stated that Shadman is not son of Dhingano. Ahmed's wife Haso remarried Dhingano and at that time Shadman was 8‑10 years old. He had attended that marriage. During the lifetime of Ali Muhammad defendants used to cultivate his lands while watching was done by him. Muhammad Bux did not live with Ali Muhammad D. W. 4 Mst. Juma also supported the case of the appellants. She also stated that Shadman was not the son of Dhingano. According to her he was the son of one Ahmed. She stated that D, W. Hashim was the Kamdar of Ali Muhammad and was present at the time of Ali Muhammad's death. She stated that Muhammad Bux never lived with them before Ali Muhammad's death. She also stated that Muhammad Bux is known as Dhingano Chandio, that Haso is wife of Ahmed, that she re‑married Dhingano and that she had one son Shadman through Ahmed and none through Dhingano. She was present at the time of Haso's marriage with Dhingano. She is aged about 65 years. This is all the evidence produced on behalf of the appellants. It will thus be observed that the parties have produced no important documentary evidence in support of their case and the learned Subordinate Judge had to decide the dispute about the relationship of Shadman with Dhingano on the oral testimony of the witnesses produced before him. It appears to us that in a case inquiries that generally involve remote facts of family history are known to few persons, and are rarely proved by direct evidence. It was therefore not expected that any direct evidence will be forthcoming about the birth of Shadman. But there are certain circumstances favourable to the respondent, which has considerably lightened his burden to discharge the onus. The maternity of Shadman is not disputed. It is admitted that his mother was the wife of Dhingano. It is also not denied that deceased Ali Muhammad acted as the guardian and caretaker of respondent and his mother's property. As already discussed the plaintiff‑respondent in support of his case, besides himself, examined P. W, 2 Mst. Saidan. P. W. 4 Ali Muhammad, P. W. 5 Kadir Bux, P. W. 7 Hyder and P. W. 8 Ahmed as witnesses to prove that Shadman was the son of Dhingano. Out of them, P. W. 7 Hyder is an old man of 72 years and being a caste‑fallow was expected to know about the relationship of Shadman with Dhingano the ancestor of the parties. This witness has stated in unequivocal terms that Shadman was the son of Dhingano and not of Ahmed as alleged by the respondent. His evidence was not shaken in cross‑examination and is not in any way blemished. Coupled with this, the statement of P. W. 4 Ali Muhammad that deceased Ali Muhammad from whom be got the land in dispute under a registered lease deed (Exh. 23) dated 16th November 1943, repre sented to him that respondent was his cousin and he was entitled as guardian to lease out his share in the property in dispute goes a long way to support the respondent's case. The registered lease deed clearly shows that deceased had acted as the guardian of the property of Muhammad Bux, respondent. In our opinion the statement of these two witnesses was sufficient to discharge the initial burden which lay on the plaintiff‑respondent to prove that Shadman was the son of Dhingano. Apart from this, the position taken up by the appellants‑defendants about the name of the mother of Shadman is most intriguing and not consistent. At one stage before the Revenue Authorities they gave the name of Shadman's mother as Bharai through their witness Tamachi (Exh. 19) who is dead, and during the cross‑examination of Shadman suggested that her name was Mst. Rajbai. Then in the cross‑examination of P. W. 7 they suggested her name as Hasso and maintained this position throughout their evidence. This clearly shows that the case of the appellants that Shadman's mother re‑married Dhingano, from whom she bad no issue, is not bona fide. It further shows that the appellants had no personal knowledge about the name of Shadman's mother and throughout were jumping in darkness to throw dust and cloud on his paternity. The very fact that they were unable to suggest Hasso's name as the mother of Shadman in the cross-examination of respondent Muhammad Bux throws lot of doubt in the plea taken up by them. Mr. Muhammad ali Sayeed, the learned counsel for the appellants, referred us to the statement of D. W. 3 Hashim and D. W. 4 Mst. Juman who stated that they had participated in the marriage of Mst. Hasso with deceased Dhingano and that Shadman was the son of Ahmed from Hasso. Mst. Juman admittedly is living with the appellants and her evidence cannot be given much credence. D. W. 3 Hashim is alleged to be a Kamdar of Ali Muhammad deceased, but his statement also does not inspire confidence. He was unable to give the name of Shadman's wife. He even denied that deceased Ali Muhammad used to look after the land of Muhammad Bux. Thus he denied certain facts which are admittedly correct. Having regard to the fact that the appellants admitted that Shadman was the son of the wife of Dhingano, it was the clear duty of the defendants‑appellants to produce reliable evidence in support of their plea that Shadman's mother was Hasso, who first married Ahmad from whom he was born. The non‑production of respon dent Amin Muhammad, who. conducted the proceedings before the Revenue .authorities as a, witness, is another factor) which goes against the appellants. At any rate the onus in appeal to dislodge the finding of the trial Judge was on the appellants and in this they have miserably failed. The respondent's witnesses created very good impression on the learned Subordinate Judge and we see no ground to differ from his view. Before parting with this case we would like to draw the attention of the learned Subordinate Judge that the approach that he made to the points at issue in this case is not warranted by well settled rule of procedure. He failed to appreciate that in the first instance it is for the plaintiff to prove his case and if h is able to prove it prima facie, then it is the duty of the defendant to establish that the case set up by the plaintiff is not true. In the present case the learned Subordinate Judge adopted a very peculiar method to arrive at the conclusion on which he reached. At first he considered the case set up by the defendants and after demolishing it and being influenced by its weakness considered the evidence produced by' the plaintiff. This cannot meet our approval. We hope in future the learned Subordinate Judge will bear in mind that the weakness of the defendants' case does not prove the case of the plaintiff. Besides the learned Subordinate Judge took certain statements before the Revenue Authorities into consideration, which could not be considered as legal evidence These statements were not put to the appellants] witnesses for contradiction and being not in the nature of admission could not be availed of as substantive evidence in the case. The grievance of Mr. Muhammadali Sayeed in this respect is well‑founded, but it does not in the least advance the case of the appellants. On the whole we are satisfied that the finding of the learned Subordinate Judge that respondent's grandfather Shadman was the son of Dhingano common ancestor of the parties is fully borne out by reliable evidence on the record. Accordingly res pondent being the only male collateral of the deceased is entitled to 0‑12‑0 share in the property in dispute. No other point was urged before us. As a result the appeal is dismissed with costs. A. H. Appeal dismissed.