P L D 1993 Lahore 815 (PLP)

This regular second appeal arises out of a suit. for declaration and perpetual injunction filed by Ghulam Yasin petitioner and Mst. Began predecessor-in-interest of Ghulam Rasool and Mst. Rabia Bibi respondents on 28-8-1953 in the Court of Civil Judge Mandi Bahauddin. The petitioner had claimed that he was the husband of Mst. Rabia deceased and was entitled to inherit the entire property left by her. The suit was decreed vide judgment and decree dated 24-6-1955. However, on appeal filed by respondent - No.1 the learned Additional District Judge, Gujrat reversed the judgment and decree of the trial Court vide his judgment and decree dated 29-&1966. Hence this appeal.

2. The sole controversy involved in this appeal is whether Mst. Rabia Bibi was wife of Ghulam Yasin, appellant or that of Muhammad Azam, respondent No.l. The decision of the other question as to who is entitled to get inheritance of Mst. Rabia and her deceased son Ghulam Sarwar depends upon the decision of the first question regarding her marriage. 3. 1 have heard the learned counsel for the parties at considerable length and perused the evidence on the record carefully.

4. The trial Court had framed the following issues on the pleadings of the parties:

(1) Whether the occupancy rights were acquired by Rasul Bibi d/o Allah (2) If issue No.1 is not proved whether the occupancy rights were acquired by Mst. Rabia and with what effect? OPD Bakhsh and with what effect? OPP (3) Whether Rabia deceased was wife of Yasin plaintiff., OPP (4) If issue No.3 is not proved whether Rabia was wife of Muhammad Azam? OPD (5) Whether the plaintiffs are estopped to bring this suit by their previous Conduct? OPD (6) What are the shares of the plaintiffs respectively in the suit land? OPP On Issues Nos.1 and 2 the trial Court held that Mst. Rasool Bibi grandmother of Mst. Rabia had acquired occupancy rights in the land which devolved on Mst. Rabia Bibi on 15-6-1937 as unmarried daughter of Ali Muhammad (son of Mst. Rasool Bibi). Mst. Rabia had two other sisters namely Mst. Baigan (predecessor-in-interest of respondents 4- and 5) and Mst. Fatima, who were excluded because, the Plwere married. Therefore, only Mst. Rabia acquired occupancy rights in the suit land in her capacity as unmarried daughter of Ali Muahmmad, deceased. Issues 3 to 6 were also decided in favour of the appellant.

5. Before the appellate Court findings on cases No.1 and 2. were not challenged. The learned Additional District Judge mentioned in para 2 of the judgment that only Issues Nos3 and 4 were argued before him. That being so, the appellant can definitely take advantage of the findings of the trial Court on Issues Nos.1 and

2. As mentioned above the trial Court held that on 15-&1937 Mst. Rabia had acquired rights in the suit-land in her capacity as unmarried daughter of Ali Muhammad deceased. The other two sisters of Mst. Rabia did not inherit occupancy rights because they were already married. The claim of Muhammad Azam respondent No.1 that he had contracted marriage with Mst. Rabia on 16-4-1940 when she was about 5/6 years of age is not believable. It may be mentioned that Mst. Rabia died on 13-11-1948 and in the death certificate Exh. DX her age was shown as 20 years. Meaning thereby that was born somewhere in the year 1928. Had she been married at the age of _1/~6 years with Muhammad Azam, respondent, there would have been no question of granting occupancy rights to her as unmarried daughter of Ali Muhammad, deceased. In his plaint the plaintiff/appellant had stated in para. 3 that Mst.. Began and Mst. Fatima sisters of Mst. Rabia had contracted marriage and for that reason the occupancy rights devolved on Mst. Rabia being the unmarried daughter of Ali Muhammad deceased. This assertion was replied by Muhammad Azam, respondent No.1 in the following words:- The part of this reply regarding Rabia's status as wife of Muhammad Azam appears to be incorrect and stands belied by the contents of Mutation No.104 sanctioned on 15-6-1937 (Exh. PD). Mst. Rabia was never shown as wife, Of Muhammad Amin in the mutation, rather she was noted as being virgin- Her other two sisters were excluded on the sole ground that they were married. Therefore, in the context, the entry that Mst. Rabia was virgin clearly implies that she was unmarried. So far as the documents Exhs. DW 3/1 and DW 5/1 are concerned, these were rightly excluded by the trial Court because the appellant was not party to the documents. Moreover, the executant (Muhammad Din father of the appellant), who was then alive was never called as witness to prove the documents. Similarly the decree dated 15-7-1947 (Exh.DP) was passed in the absence of the appellant as he was never impleaded as a party to the same. Therefore, the trial Court had rightly discarded the, above documents and the first appellate Court erroneously relied upon the same. It may be mentioned that Mst. Fatima, sister of Mst. Rabia was married to Khuda Bakhsh father of Muhammad Azam. respondent No.l. He was working as a Patwari (as admitted by Ghulam, Nabi D.W. 4) and appears to have created some, evidence to grab the property of Mst. Rabia. No doubt, in the death entries of Mst. Rabia Exh. DX she was shown to be wife of Muhammad Azam and similarly in the death entry of Ghulam Sarwar Exh. DY he was shown to be son of Muhammad Azam but the said entries cannot be relied upon because the very factum of Rabia's marriage with Muhammad Azam, respondent No.1 stand belied by other reliable, documents on the record. Mst. Rabia!s Nikah with the appellant was performed by Mian Ahmad Din who appeared as P.W3 and proved the entry from the Nikah Register Exh. PW4/1. The Nikah was shown to have been performed on 16-4-1940. This appears to be believable because at least up to 1937 Mst. Rabia was unmarried. For the foregoing discussion I accept this appeal reverse the findings of the appellate Court on issues Nos.3 and 4 and restore those of the trial Court. Resultantly, the judgment and decree dated 29-6-1966 passed by the learned Additional District Judge is reversed and that restored, leaving the parties to bear their own costs. A.A./ G-160/L APPEAL ACCEPTED