P L D 1991 Peshawar 101 (PLP)

(4) Whether the present Civil Court has got no jurisdiction to adjudicate the disputed matter? (5) Whether Mst.Sanawar Jan defendant No.l. is the legally wedded wife of Niaz Mohammad Khan deceased, if so, its effect? (6) On proof of issue No.5, whether the Nikahnama (copy on file) is fraudulent, collusive and forged one, if so its effect. (7) Whether the plaintiff is entitled to the decree prayed for? (8) Whether the written statement is not in accordance with Law Reforms Ordinance, 1972, if so, its effect? (9) Relief.

3. After recording such evidence as was produced by the parties in support of their respective pleadings, the learned trial Court decreed the suit vide its judgment dated 28‑4‑1982.

4. Aggrieved therefrom, the petitioner preferred an appeal before the learned Additional District Judge, Peshawar, which too met the same fate vide his judgment dated 24‑;5‑1983. Hence the instant revision petition.

5. I have heard Z. Mahfooz Khan, Advocate, learned counsel for the petitioner and Mr.Abdul Bari Khan, Advocate, learned counsel for the respondent at length and also perused the record of the case with considerable degree of care.

6. It is contended on behalf of the petitioner that while the findings of the learned trial Court on issue Nu.4, pertaining to the jurisdiction of the Civil Court, are misconceived, the learned Appellate Court did not advert to it at all and on this score alone the impugned judgments and decrees of both the learned Courts below are liable to be set aside. In this connection he has relied on section 5 of the West Pakistan Family Courts Act, 1964 under which a suit involving the question of jactitation when read with the Schedule, lies within the exclusive jurisdiction of the Family Court. It was further contended that in deciding issues 5 and 6, both the learned lowed Courts have misdirected themselves in that firstly, the presumption of truth attached to Nikahnama, Ex.PW.2/X‑A, has been completely ignored. It was thus urged that the impugned judgments and decrees of the learned Courts below are not founded on sound reasonings in law as well as on facts and thus cannot be sustained in law.

7. On the other hand, the learned counsel for the respondent maintained that on point of jurisdiction, since the question before the learned trial Court was not jactitation simpliciter and in fact it was the inheritance of the deceased Niaz Mohammad Khan which was in issue, the Civil Courts had got the jurisdiction to try the suit and the findings arrived at by the learned lower Courts in this regard are well‑founded. On merits, the learned counsel conceded that initial burden of proving the alleged marriage of the petitioner with the above‑named deceased although was on the respondent, yet it shifted to the petitioner to prove that she was so married and her failure in this regard was validly construed by the learned Courts below in disentitling her to inherit the property of the deceased and as such to declare the impugned mutation as null and void. He finally urged that in this regard both the learned lower Courts have concurrently given a finding of fact against the petitioner and as such the impugned judgments and decrees cannot be interfered with in exercise of its revisional jurisdiction.

8. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.

9. The controversy is thus narrowed down to firstly, with regard to the jurisdiction of the Civil Court in a matter where principle of jactitation is pressed into service and secondly, the burden of proof whether was rightly placed on the petitioner to prove her marriage with the deceased Niaz Mohammad Khan and his consequent claim of inheritance in the property left behind by him.

10. On the point of jurisdiction a reference to section 5 of the West Pakistan Family Courts Act, 1904, seems necessary which reads:‑ "

5. Jurisdiction.‑‑Subject to the provisions of the Muslim Family Laws Ordinance, 1961 and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in the Schedule." The aforequoted provision when read with item (7) of the Schedule annexed thereto leaves hardly any room for doubt, and it will not detain me for a moment, to hold, that in a matter pertaining to the jactitation simpliciter, Family, Court alone is exclusively vested with jurisdiction to decide. And rightly too as it is a Court of special jurisdiction created as such to exclusively adjudicate matrimonial disputes. It is, however, the principle of jactitation pressed into service in a matter other than pure and simple jactitations; as is the instant case, which needs to be dilated upon with reference to its proper forum which, under the law, is competent to adjudicate upon.

11. Jactitation is defined in Black's Law Dictionary as "boasting of something which is challenged by another". Similarly jactitation in Mozley and Whiteley's Law Dictionary means "boasting of something which is challenged by another specially with reference to the suit of jactitation of marriage where one of the two parties has falsely boasted or given out that he or she was married to the other, whereby a common reputation of their matrimony might ensue, and the other sues for an order enjoining perpetual silence on that head". 12., These plain dictionary meanings of the word jactitation would indicate that it arises in the circumstances when one person wants to silence the other in respect of boasting of the existence of marital relations between the two. Accordingly, in my view, a denial of or challenge to the existence of such relations, when made by one against the other party is the essence of the word jactitation. Thus the dispute must be between the two directly affected persons involved to the existence or non‑existence of matrimony‑: that the question of jactitation shall emerge. In other words, when a third person steps in and agitates jactitation before a Court of law in connection with a matter ancillary or axillary g thereto, the dispute shall not be construed such jactitation as is made exclusively triable by a Family Court under section 5 of the West Pakistan Family Courts Act, 1964, inasmuch as such a situation cannot be intended to the third person for the reason that such boasting is not to affect a claimant in so far as the existence or non‑existence of matrimonial relations between the two persons, inter sc, are concerned. I am, therefore, clear in my mind that when a third person calls matrimonial relations of two persons in question, such act of his would not fall within the purview: of jactitation in stricto senso and the Civil Courts shall be competent to decide a dispute arising out of such a controversy.

13. Viewed in the perspective of the foregoing. I am of the opinion that the point in issue in the instant case, namely, the inheritance of Niaz Mohammad Khan deceased and the questioned inheritance mutation in favour of the petitioner on the ground of non‑existence of matrimonial relations between her and the above‑named deceased cannot be held, with an amount of certainty, as C the one which were out of the pale of the jurisdiction of the Civil Court. I have, therefore, no hesitation in holding that the Civil Court had the jurisdiction to entertain and decide the instant suit, the question of jactitation, if any, involved notwithstanding and the findings of the trial Court do not call for any interference therewith on this score.

14. Next is the point in relation to the onus of proof on the petitioner qua issues 5 and

6. It needs hardly to state that, according to the rule of onus probandi, if no evidence at all is adduced, the one who asserts a proposition is to fail, for, burden of proof lay heavily on the person who asserts a proposition. It is in the wake of this settled principle of law of evidence that the plaintiff had to stand on his own legs and cannot be benefited due to weakness, if any, the case of the defendant might be suffering from.

15. This necessitated a reference to the evidence led by the plaintiff a perusal whereof reveals that the plaintiff‑respondent, besides himself, produced two witnesses who orally synchronized with the plaintiff in denouncing the Nikah having been performed between the petitioner and the deceased but there is not a shred of evidence forthcoming to denounce the Nikahnama which the plaintiff himself placed on the file and rather with an affirmative exposition in regard thereto is apparent in the statement of the plaintiff when during his cross examination he deposed as follows:‑‑ Besides, the deposition of the two witnesses of the plaintiff, namely, Ajmal Khan (P.W:3) and Jumma Khan (P.W.4) whereas, prima facie, are bald statements, the former from his age appears to have been a lad when the Nikah was performed while the latter appears to have laid more stress on the tuberclosis, the late Niaz Mohammad Khan was allegedly suffering from. Both the statements, strangely enough do not make any reference whatsoever, to the alleged dubious nature of Nikahnama.

16. The question that arises thus is as to whether the evidence so adduced by the plaintiff can, qualitatively as well as quantitatively, in the absence of defendant's evidence, be considered as sufficient to dislodge the Nikahnama. I am afraid, the answer shall be in negative. For, it was the primary responsibility of the plaintiff to have called in evidence all those persons, including public functionaries, who were one way or the other associated with the execution of the Nikahnama in question and positively proved its discredence and refuted its validity.

17. Additionally the factum that the learned counsel for the respondent conceded about the initial burden being that of the respondent to prove the non‑existence of matrimonial relations of the petitioner with the deceased Niaz Mohammad Khan is not without significance, particularly when he gave no reasons whatsoever, as to how and under what circumstances, the burden deemed to have been shifted to the petitioner to prove such relationship. 18 Such being the case, both the learned lower Courts seem to have misdirected themselves and instead of sifting the evidence produced by the respondent in proving the latter's assertion relating to invalidity of the Nikahnama, they have been finding faults in the evidence of the petitioner and in so doing, they have certainly violated the principles of onus probandi as discussed above as also the rule that the plaintiff is to stand on his own footing rather than to benefit from the weaknesses of the defence.

19. I have, therefore, arrived at an inescapable conclusion that not only the onus of proving these two issues (5 and 6) has been manifestly misplaced on the petitioner but also the reasons weighed with both the learned lower Courts to hold the Nikahnama as collusive, fraudulent and baseless are founded on grounds that cannot be held as valid and I hold it accordingly.

20. Resultantly, while I accept this revision petition, set aside the judgments and decrees of both the learned lower Courts and consequently the suit of the plaintiff‑respondent stands dismissed with no order as to costs. AA./1206/P Revision accepted.