P L D 1959 (W (PLP)

YAQUB ALI J.--‑This is an appeal by Muhammad Shall and Rahim Bakhsh, sons of Faiz Bakhsh, Sardara son of Imam Bakhsh and Allah Ditta son of Fateh Din of Lahore from the judgment and decree of Mr. Hamid Ullah Civil Judge, 1st Class, Gujranwala, dated the 18th of August, 1952, dismissing their suit for possession of 3/4th share of the suit land measuring 697 kanals and 8 marlas, situate in village Madhrianwala.

2. The plaintiffs' claim in the suit was based on their alleged relationship with Ghulam Muhammad the last male‑owner of the suit land. 'Ghulam Muhammad died in 1948 leaving his widows, Mst. Zainab Bibi and Mst. Sahib, defendants. In the course of mutation proceedings which followed the death of Ghulam Muhammad the plaintiffs claimed 3/4th share in his estate on the plea that they were the residuaries of the deceased and in support of it propounded the following pedigree table:‑ KHUDA BAKHSH _________________________|________________________ | | | Muhammad Yar Allah Dad Jawahar | | | Faiz Bakhsh | Pir Bakhsh | | | | | Ghulam Muhammad | | | ________|___________ | | | | Fateh Din Imam Bakhsh | | | | Allah Ditta Sardara | Plaintiff No. 4 Plaintiff No. 3 | | _________________ _________________|___________________ | | Rahim Bakhsh Muhammad Shafi Plaintiff No. 2 Plaintiff No. I The claim was contested by the defendants and the mutation sanctioned in their names to the exclusion of' the plaintiffs. Aggrieved by it the plaintiffs instituted the suit out of which the prexnt appeal has arisen and the only question which arose for determination in the case was whether the plaintiffs were the descendants of Khuda Bakhsh the great grandfather of Ghulam Muhammad deceased. In support of their claim the plaintiffs relied upon copy of mutation (Exh. P. 1) in which Ghularn Muhammad deceased had made a statement admitting the plaintiffs' relationship with him as indicated in the above pedigree‑table: Reliance was also placed on pedigree‑tables (Exhs. P. 3 to P. 5). Exh. P. 3 is extract from the pedigree‑table of the proprietors of village Madhrianwala prepared in the year 1924‑25 and it shows that plaintiffs Nos.. I and 2 were the sons of Faiz Baklish who was son of Muhammad Yar and that plaintiff No. 3 was son of Imam Bakhsh who was son of Allah Dad. The pedigree‑table (Exh. P. 4) is another extract from the same pedigree‑table showing that Ghulam Muhammad deceased was the great grandson of Khuda Bakhsh. Exh. P. 5 is an extract from pedigree‑table of 1891‑92 and shows that Pir Bakhsh, father of Ghulam Muhammad deceased was the son of Jawahar. These pedigree‑tables thus fell short of connecting Jawahar, Allah Dad and Muhammad Yar as the sons of Khuda Bakhsh and this gap was sought to be filled in by oral evidence as well as the admission of Ghulam Muhammad incorporated in mutation (Exh. P. 1) referred to above. The admission was made in the following circumstances. Ghulam. Muhammad deceased had sold some land to Jumma and Noor vide mutation No.

424. Later on the transferees sold the same land to one Husain son of Langar who again in his turn sold it to Faiz Bakhsh father of plaintiffs Nos. 1 and 2 and Imam Bakhsh father of plaintiff No.

3. As Faiz Bakhsh and Imam Bakhsh were residents of Lahore and did not own any land in village Madhrianwala, a question arose whether they were agriculturists of District Gujranwala for the purposes of acquiring land in that District. During the course of mutation proceedings Ghulam Muhammad appeared as a witness and stated that Faiz Bakhsh and Imam Bakhsh vendees were related to him as follows:‑ KHUDA BAKHSH __________________|___________________ | | | Muhammad Yar Allah Dad Jawahar | | | Faiz Bakhsh Imam Bakhsh Pir Bakhsh Vendee Vendee | Ghulam Muhammad Vendor On the basis of the statement mutation was sanctioned in favour of Faiz Bakhsh and Imam Bakhsh as they were found to be the reversioners of the original vendor and had taken up the residence in the village.

3. The oral evidence led by the plaintiffs consisted of the testimony of three of the plaintiffs, namely, Muhammad Shafi, Sardar and Allah Ditta (P. Ws. 1 to 3) and Hayat Muhammad (P. W. 4) and Sardar (P. W. 5) both residents of Madhrianwala. The last‑mentioned P. Ws. stated that they had seen the plaintiffs visiting Ghulam Muhammad deceased and the latter had acknow ledged them to be his relatives. The learned trial Judge has not attached much importance to the oral testimony of the witnesses and the admission of Ghulam Muhammad in Exh. P. 1 has been held to be inadmissible under section 32 (5) of the Evidence Act. In rebuttal Mst. Zainab Bibi alone appeared in the witness box and denied the plaintiffs' claim adding that her deceased husband was a spendthrift and drunkard who could be always persuaded to make any statement against his own interest. She also pro duced pedigreetable (Exh. D. 1) for the year 1904‑05 of village Kot Mubarik where part of the suit land is situated, according to which the plaintiffs were not connected with Khuda Bakhsh the great grandfather of her deceased husband.

4. When this appeal first came for hearing before us on the 14th of February 1957, we found it not possible to give a satisfactory judgment in this case unless additional evidence was examined. The plaintiffs pleaded that they had not been able to produce entries from the revenue record connecting Muhammad Yar and Allah Dad with Jawahar, grandfather of Ghulam Muhammad deceased, because the revenue record of District Gujranwala upto 1 18 had been burnt. They, however, relied on entries from the record of the Corporation of the City of Lahore according to which Muhammad Yar and Allah Dad grandfathers of plaintiffs Nos. 1 and 2 and plaintiff No. 3, respectively, were sons of Khuda Bakhsh. It was further explained that while Jawahar had continued to reside in village Madhrianwala his brother had migrated to Lahore and by means of private partition the‑ urban property belonging to the family of Jawahar was allotted to them and the entire agricultural land was allotted to Khuda Bakhsh. We accordingly directed the parties to produce such documentary evidence both extracts from the revenue record and the record of the Corporation of the City of Lahore which could throw light on the alleged relation ship of the plaintiffs with Ghulam Muhammad deceased. The evidence produced by the plaintiffs consists of pedigree‑table (Exh. C‑1) of village Madhrianwala for the year 1891‑92 It shows that Khuda Bakhsh had six sons, namely, Muhammad Yar, Allah Dad, Abdur Rahman, Sattar, Lai and Jawahar, out of whom Sattar and Lai had died childless. Exh. C. W. 2/2 is a certified copy from Khasra Register of Lahore Municipality for the year 1890. The last entry in it relates to houses Nos 463 and 464 belonging to one Muhammad Yar son of Khuda Bakhsh, caste Jat Dalgar. Exh.‑ C. W. 2/1 is copy of aks shajra of Mohallah Dogran prepared in the same year. It shows that houses Nos. 463 and 464 were adjacent to each other and are situated to the extreme south of the lane. A well is also demarcated in house No.

464. Exh. C. W. 2/4 is extract from the Register of Khasra prepared by the Lahore Municipality in the year 1907‑

08. The last entry shows that house No. 463 of which the number had changed to 9062 was owned by Faiz and Chiragh sons of Muhammad Yar. Exh. C. W. 2/3 is a copy of portion of the Survey Register of the City of Lahore prepared during the same year. House No. 9062 is indicated towards the south and corresponds to the situation of house No. 464 in Shajra (Exh. C. W. 2/1). Syed Nazir Husain, Naib Sadar Qanungo, Record Keeper, Revenue Record Room, Gujranwala, appeared as C. W, 1 and deposed that according to the entries in the original pedigree‑table of the Settlement of 1892‑93, which he had brought with him, Dargahi, caste Jat Hinjra, was shown as the father of Khuda Bakhsh. Jawahar, Lai, Sattar, Abdur Rahman, Allah Dad and Muhammad Yar were sons of Khuda Bakhsh. Jawahar had only one son Pir Bakhsh and there was a note below that entry (Urdu Writing) i.e., Pir Bakhsh did not own any ancestral land in the village and was in possession of 1/2 share of the land belonging to the sons of one Barkhurdar at Chah Qutbe Wala. Below the names of the other sons of Khuda Bakhah there is a note (Urdu Writing) i.e., none of them owned any land in the village and their names were not entered in any revenue record. This lends support to the plaintiffs' case that Allah Dad and Muhammad Yar had migrated to Lahore while Jawahar alone had continued to reside in village Madhrianwala. Muhammad Salah‑ud‑Din Patwari (C. W. 2) has proved the correctness of the aforementioned extracts from the record of the Corporation of the City of Lahore. In rebuttal the defen dants did not choose to lead any evidence. The factual position which emerges out from the evidence on the record thus is that contrary to the contents of the pedigree‑table (Exh. D‑1) Khuda Bakhsh son of Dargahi, great grandfather of Ghulam Muhammad deceased, had five sons, namely, Jawahar, Sattar, Abdur Rahman, Allah Dad and Muhammad Yar. Faiz Bakhsh, father of Rahim Bakhsh and Muhammad Shafi, plaintiffs Nos. 1 and 2, is the son of Muhammad Yar and Sardara plaintiff No. 3 is the son of Imam Bakhsh son of Allah Dad. In short, the missing link in the evidence produced in the Court below, viz., that Muhammad Yar and Allah Dad were the brothers of Jawahar, has now been provided. The learned trial Judge has excluded the statement of Ghulam Muhammad incorporated in mutation Exh. P. 1 from consideration on the ground that it could not be presumed that Ghulam Muhammad heard of the relationship from his deceased ancestors and in the absence of evidence to show that Ghulam Muhammad had special means of knowledge of relationship stated by him, the requirements of section 32 (5) of the Evidence Act remained unfulfilled. We are unable to agree with this view because regard being had to the common course of natural events and human conduct, it is very likely that Ghulam Muhammad had heard of the relationship of Faiz Bakhsh and Imam Din vendees from his ancestors and that he' had special means of knowledge on which his statement way based. In this respect it is also to be borne in mind that interest admission made by Ghulam Muhammad was against his interest and unless he had special knowledge of the relationship he would not have made the statement in question. The requirements of section 32 (5) of the Evidence Act were thus fulfilled and the statement was properly before the Court for consideration.

5. The statement of Ghulam Muhammad corroborated as it is by the documentary evidence discussed above leaves no doubt in our mind that the plaintiffs are descendants of Khuda Bakhsh, the great grandfather of Ghulam Muhammad deceased, whose estate is in dispute and as residuaries they are entitled to 3/4th share in it. This appeal is accordingly allowed and the plaintiffs' suit decreed to the above extent. In the circumstances of the case we, however, leave the parties to bear their own costs throughout. K. M. A. Appeal accepted.