2002 PLP 3375 (YLR)

Evidence of the parties was recorded. The learned trial Court vide decree dated 21‑11‑1987 dismissed the suit. A first appeal filed by the said plaintiffs was heard by a learned Additional District Judge, Daska who allowed the same on 15‑1‑1995 and decreed their suit.

3. Against the said judgment and decree dated 15‑1‑1995 of the learned Additional District Judge, Daska Civil Revision No. 125 of 1995 has been filed by the petitioners who are heirs of Irshad Ahmad son of said Mst. Tajan while Civil Revision No.149 of 1995 has been filed by the said vendees.

4. Syed Zafar Ali, learned counsel for the petitioners argues that in the impugned judgment and decree of the learned Additional District Judge, has opted to proceed on the, basis of conjectures which is violative of the law of evidence governing the proceedings. Learned counsel for the plaintiffs/respondents has tried to support the impugned judgment and decree.

5. I have gone through the copies of the records placed on the files of both the civil revisions, with the assistance of the learned counsel for the parties. I have already referred to the respective pleadings of the parties above in some detail. In the plaint it has not been explained as to how the plaintiffs are related to the said Muhammad Siddique. It has, however, been claimed that they are entitled to the residue i.e. 3/8th share in the suit‑land which, according to them, is the estate of said Muhammad Siddique. The burden of the said issue No.3 obviously was upon the said claimants. Now Mashooq Ali plaintiff appeared as P.W.1 and proceeded to state that Muhammad Siddique was son of Rahim Bakhsh who was son of Lashkari son of Majlis. Regarding himself he stated that his father was Muhammad Shafi son of Karim Bakhsh son Panah and that Panah and Majlis were brothers. The statement of this witness was recorded on 28‑1‑1986 when he stated his age to be 50/55 years. He stated that he was 8/10 years of age when Muhammad Siddique died and by that time his father had died. He admitted that he had not seen Rahim Bakhsh or Lashkari. Regarding the source of knowledge he stated that he had heard about the pedigree: Now regarding Abdul Latif son of Bholu who is co‑plaintiff. He stated that he is not his collateral and is not related to Muhammad Siddique. He does not know the name of his grandfather.

6. The other witness is Abdul Majid, P.W.4. He is aged 75 years. His statement was recorded on 14‑11‑1987. He also stated that Muhammad Siddique was son of Rahim Bakhsh son of Lashkari son of Majlis while Mashooq Ali etc. are sons of Shafi Muhammad son of Karim Bakhsh son Panah and that Majlis and Panah were brothers. In cross‑examination when asked to state his own pedigree‑table, he could not remember the same beyond his great grandfather. He had not seen Rahim Bakhsh or Karim Bakhsh. Regarding his source of knowledge he states as follows:‑‑ When called upon to name the said persons he states that he does not know their names.

7. A plain reading of the statements made by the said witnesses i.e. one of the plaintiffs and the said P.W. 4 would show that apart from the fact that the said statements do not at all prove the relationship between Muhammad Siddique and the plaintiffs, they are wholly, inadmissible. Both the witnesses have stated without demur that their evidence is hearsay. Learned counsel for the petitioners is very right in complaining that the learned Additional District Judge has thrown the Rules of evidence applicable to the case, to the winds while relying upon the statement of the said witness to hold that Muhammad Siddique was related to the plaintiffs in a manner to enable them to inherit his estate. Article 64 of Qanun‑e -Shahdat Order, 1984 (section 50 of Evidence Act, 1872) laid down in absolutely unambiguous terms the parameters for the admissibility of the evidence of relationship. Under the said provision of law it is the opinion, expressed by conduct, as to the existence of such relationship of any person who is a member of family or otherwise as special means of knowledge on the subject, which is relevant. Such an opinion of witness, if so competent, must be expressed by conduct. In the present case the plaintiff as well as his witnesses have not even claimed any special means of knowledge with reference to the membership of the family or otherwise. Both of them have stated without any demur that they have heard from others about the said relationship. There is thus no question of any expression by conduct, so as to make the said statements relevant.

8. It will also be noted that in the entire evidence there is no mention at all as to who was the father of Pariah and Majlis who were stated to be the brothers. I called upon the learned counsel for the plaintiffs/respondents as to whether he is in possession to disclose the said information. He is unable to do so.

9. Coming to the pedigree‑table Exh.P.3, nothing turns on the same for the reason that the document does not disclose as to how Majlis and Panah are connected. Needless to state that by now it is well‑settled that a pedigree‑table by itself is not the evidence of relationship and has to be corroborated by a party or his witnesses to make the same relevant.

10. It is in the said state of evidence on record that the learned Additional District Judge has proceeded to observe as follows in para. 18 of the impugned judgment: "

18. So far as the paternity of Majlis and Panah is concerned, I am of the view that the said persons have been shown in one and the same pedigree table and on account of some mistake of Revenue Department of India and Pakistan, their paternity has not been shown in it and it should not be allowed to discard the oral evidence of the plaintiffs. Consequently, I rely upon the statements of P.W.1 and P.W.4 and I hold that the appellants and the pro forma respondents are legal heirs/collaterals of Muhammad Siddique. " In the light of evidence on record the said observations, to say the least, are perverse.

11. The findings of the learned Additional District Judge as to the nature of the estate being held by Mst. Tajan are also not supported by the evidence on record. The basis for the allegation that Mst. Tajan held a limited estate vis‑a‑vis. The land transferred to her, was the fact stated in the plaint that on the death of Muhammad Siddique land had been mutated in favour of Mst. Tajan under custom. Before proceeding further I may state here that there is no evidence on record regarding the ownership of land in India vis‑a‑vis. Muhammad Siddique or the said lady. Be that as it may, it was for the plaintiffs to prove their case as pleaded by them in the plaint. Now Mashooq Ali plaintiff (P.W.1) has stated that the parties were governed by Islamic Law even in India and so is the statement of Abdul Majid, P.W.4. Despite the said facts coming from the horses mouth the learned Additional District Judge insists that the parties were governed by custom. Learned. Additional District Judge has thus acted without lawful authority in reversing the findings of the learned trial Court on issue No.2.

12. For all that has been discussed, above, the impugned judgment and decree of the learned Additional District Judge squarely falls within the mischief of section 115, C.P.C. and cannot be sustained. Both the civil revisions are accordingly allowed. The judgment and decree dated 15‑1‑1995 of learned Additional District Judge, Daska is set aside while the one passed by the learned trial Court on 21‑11‑1987 dismissing the suit of the plaintiffs/respondents is restored with costs throughout. H.B.T./Z‑97/L Revision allowed.