2011 SCMR 1059 (PLP)

JAWWAD S. KHAWAJA, J.

The appellants impugn the judgment of the High Court dated 28-6-2002 whereby Revision Petition No.508-D of 2000 filed by the appellants-plaintiffs was, dismissed and as a result the concurrent decrees of the learned trial and appellate Courts were affirmed. Leave to appeal was granted vide order 11-2-2002 in the following terms:-- "This petition for leave to appeal is directed against the judgment and decree dated 28-6-2000 passed by a learned Judge in Chambers of the Lahore High Court, Multan Bench in Civil Revision No.508-D of 2000. The petitioners had filed a suit on 3-11-1991 for a declaration to the effect that being son and daughter of Hassan Khan they were owners of the suit land measuring 96 kanals, which had been given to their father under Grow More Food Scheme, and inheritance mutation No.113 dated 7-11-1991 being against law and facts was ineffective on their rights. The suit was resisted by the respondents on the ground that Hassan Khan was grandfather of respondents Nos.2 to 4 and the petitioners being son and daughter of his wife Mst. Ayesha from a previous husband were not his legal heirs. The suit was dismissed by the learned trial Court on 23-6-1998 and the appeal and revision petition filed by the petitioners also met the same fate on 3-6-2000 and 28-6-2000 respectively. It was contended by the learned counsel for the petitioners that the claim of the petitioners was fully supported by oral and documentary evidence but all the courts had overlooked the same particularly the will deed of Hassan Khan dated 9-6-1984. The learned counsel for the caveator supported the impugned judgment. Leave is granted to consider, inter alia, the following questions:- (i) Whether the documents marked Exh.P-1 and Exh.P2 are a substantial proof of the petitioners' relationship with Hassan Khan and the same have not been considered by the two Courts below as well as the High Court. (ii) Whether the petitioners are entitled to get 1/3 share out of the suit land on the strength of the will (Exh.P.1) of Hassan Khan, if it is held that they are not his legal heirs".

2. We have heard learned counsel for the parties at great length and have also examined Exhs.P-1, P-2 and the other documents placed on record including the alleged will whereby Hassan Khan purported to gift the property to appellant No.1. The first issue which needs to be resolved is as to whether the two appellants were respectively the son and daughter of Hassan Khan or were the children of Ghulam Muhammad, the previous husband of Mst. Ayesha, who subsequently contracted second marriage with the said Hassan Khan. Having gone through the evidence on record, we find that the learned Courts below were fully justified in concluding that the two appellants were `pichlag' being the children of Mst. Ayesha from her marriage with Ghulam Muhammad. In this respect there is uncontrovertible documentary evidence in the form of school certificate of Mst. Ghulam Jannat (appellant No.2) and Nikahnama between Mst. Ayesha and Hassan Khan. Although the school certificate was not initially submitted by the 4ppellants and exhibited in evidence, learned counsel for the appellants had contended that it is a document which should have been considered. We have seen the said certificate and find that the date of birth of Mst. Ghulam Jannat mentioned therein is 3-8-1938. The Nikahnama between Mst. Ayesha and Hassan Khan took place 12 years later in 1950. These circumstances coupled with the testimony of D.W.5 (bhanja of Hassan Khan), D.W.6 (bhateeja of Ghulam Muhammad) and D.W.7, it is obvious that the two appellants were not the children of Hassan Khan.

3. It was then contended on behalf of appellants that the will (Exh.P-1) dated 9-6-1984 should be given effect and as a consequence at least to the extent of 1/3rd of the disputed property the beneficiary of the will namely Mehmood-ul-Hassan (appellant No.1) should be declared owner. This contention is wholly misconceived. Firstly because the will itself appears not to be genuine. Furthermore, neither the scribe of the will nor the stamp vendor have been produced as witnesses. Moreover, it is of relevance that in the will and in the plaint filed by the appellants, the respondents who were the children of Muhammad Nawaz son of Hassan Khan, were not acknowledged as such. In fact the appellants had denied that the respondents were related in any way with Hassan Khan. This aspect of the plea taken by the appellant has to be taken into consideration because it shows the appellants to be untruthful. The credibility of their testimony is thus undermined.

4. Learned counsel for the appellants then contended that the appellate Court and the High Court in revisional jurisdiction had not taken the evidence into account and, therefore, the appellate and revisional judgments were not legally sustainable. To support this contention, he referred to the case titled Mst. Hussain Bibi and others v. Barkat Ali and others (2004 SCMR 1391). We have gone through the impugned judgments as well as the cited precedent. Furthermore, we have also gone through the evidence and are not left in any doubt that the conclusions concurrently arrived at by the three Courts below are fully supported by the available evidence.

5. Learned counsel for the appellants also referred to a number of other documents including the electrol roll etc. to contend that these documents were sufficient to prove that the appellants were the son and daughter respectively of Hassan Khan. We have seen the documentary evidence adverted to by learned counsel for the appellants and have also considered the credible and unshaken testimony of both D.W.5 (Jeven Khan) and D.W.6 (Muhammad Manzoor) which has established that the plea taken by the appellants in their plaint was false.

6. In the foregoing circumstances, we find no justification for interference in the impugned judgments. This appeal, as a consequence, is dismissed with costs throughout. S.A.K./M-23/SC Appeal dismissed.