2001 PLP 2064 (YLR)

(5) Whether the plaintiffs have come with clean hands and as such not entitled to any relief? OPD.

6. Whether the plaintiffs have no cause of action? (6‑A) Whether the suit is within time? OPP. (6‑B) Whether the plaintiffs are estopped to file the suit? OPD. (6‑C) Whether the Mutation Nos. 565, 523, 618 are illegal void against facts and law as such of no effect on the rights of the plaintiffs? OPP (6‑D) Whether the suit is time‑barred in view of preliminary Objection No.1 of the written statement, dated 8‑2‑1984? OPD. (6‑E) Whether this Court lacks territorial jurisdiction as regards the property situated in Jhang and Faisalabad Districts? OPD. (6‑F) Whether plaintiffs Nos. 1 to 5 are legal heirs of Ghazi Shah deceased and as such are entitled to inherit the property in accordance with their respective shares? OPP. (7) Relief.

3. The learned trial Court vide judgment and decree, dated 1‑2‑1986 held that the respondents/plaintiffs were the legal heirs of Noor Mustafa Shah and decreed their suit vide judgment and decree, dated 1‑2‑1986. Ghazi Shah etc. filed an appeal against the said judgment and decree which was dismissed on 5‑11‑1986 thus upholding the decree of the trial Court in favour of the respondents/plaintiffs.

4. The evidence of the respondents comprised of P.W.1 Bashir Ahmed Clerk Pilot Secondary School, Rahimyar Khan who produced school leaving certificate of Ijaz Hussain Shah Exh. P. 1. which describes his parentage as Noor Mustafa. P.W.2 Abdul Ghafoor, Secretary Union Council, Rasoolpur Sadiquabad produced Exh.P.2 which is the register of births. P.W.3 is the statement of Allah Wadhaya who is a very important witness as it was this Allah Wadhaya who had been earlier married to Mst. Ghulam Fatima the original plaintiff No.6. P.W.3 stated that he had two wives namely Mst. Mithun and Mst. Fatima and that from Mst. Mithun he had four sons and one daughter while from Mst. Ghulam Fatima he had only two sons Piran Dina deceased and Muhammad Hussain. He further stated that Ghulam Fatima was divorced by him about 30 years age after which she contracted marriage with Noor Mustafa Shah. He further stated that Ijaz Hussain Shah and the other plaintiffs were the sons and daughters of Noor Mustafa through Mst. Ghulam Fatima. Nothing has been brought out against this statement in the cross‑examination, P.W.4 Faiz Abbas Shah is a cousin of Noor Mustafa. He deposed that Noor Mustafa also had two wives one was Mst. Bilqees Mai while the other was Mst. Ghulam Fatima plaintiff No.6 and that from the marriage with Ghulam Fatima the said Noor Mustafa had Ijaz Hussain, Shafaqat Hussain, Zohra Mai, Shabbir Mai, Kubra (Zarafat) as sons and daughters. He further stated that Ijaz Hussain was married to his niece. Thus, P.W.4 posed as a family member. P.W.5 Muhammad Abdullah Incharge, Middle School Basti Pir Bakhsh stated that Ijaz Hussain was his student and was son of Noor Mustafa. He also stated that admission was trade upon the application of Noor Mustafa. He produced Exh.P.3, Exh.P.4. and Exh.P.4/A (application of Noor Mustafa) in evidence. P.W.6 Mukhtiar Ahmed is the real brother of Mst. Ghulam Fatima who also stated that Mst. Ghulam Fatima was earlier married to Allah Wadhaya and after divorce from his she married Noor Mustafa and that other plaintiffs were sons and daughters of Noor Mustafa through Mst. Ghulam Fatima. P.W.7 was Record Keeper of the Health Department who brought the vaccination record which also showed the relationship between Noor Mustafa and the plaintiffs. P.W.8 Clerk, Government Colony High School, Rahim Yar Khan produced Exh.P.6 extract from the school register showing the name of Noor Mustafa as father of Ijaz Hussain. Ijaz Hussain Shah himself appeared as P.W.9 and stated in grate detail about the entire family circumstances. His evidence is strong, consistent and unshakable. Nikah Nama Exhs.P.13, 14 and Exh.P.15 were exhibited while copy of "Intikhabi Fehrist" was produced as Exh.P.12 and voters list as Exh.P.16. As against this the evidence produced by the defendants comprised of D.W.1 Sabir Ali who sought to produce the extract from register of Government High School Basti Pir Bakhsh but in the place where the parentage of Ijaz Hussain Shah was entered there appears to be overwriting. D.W.2 also produced the register of Middle School. Even in this register there was admitted tampering of the record. The statements of D.W.3 Abdul Aziz and D.W.4 Siraj Ahmad are the statement of witnesses who claimed to be servants of Noor Mustafa Shah, D.W.5 is the attorney of Muhammad Hussain Shah who simply denied that the plaintiffs were not the legal heirs of Noor Mustafa Shah. The learned Civil Court in view of this oral and documentary evidence found Issues Nos. 1, 2, 6‑C and 6‑F in favour of respondents/plaintiffs and held they respondents/plaintiffs were the legal heirs of Noor Mustafa Shah. The findings of the learned trial Court on Issues Nos.3, 4, 6‑A and 6‑D went in favour of the plaintiffs while Issues Nos.5, 6, 6‑B and 6‑E were also decided against the defendants.

5. The appeal which was filed by the present petitioners was dismissed by the First Appellate Court vide judgment and decree, dated 5‑11‑1986 and while doing so the entire evidence was re‑appraised by the First Appellate Court.

6. The main contention raised by' the learned counsel for the petitioners is that there were some pivotal questions which were necessary for a proper determination of the present civil revision. He contended that once it was admitted that Mst. Ghulam Fatima respondent/plaintiff No.6 was earlier married to Allah Wadhya, it was incumbent upon the respondents/plaintiffs to have proved divorce between Allah Wadhaya and Mst. Ghulam Fatima by very strong evidence including documentary evidence. He further submitted that subsequent Nikah of Mst. Ghulam Fatima with Noor Mustafa Shah should have been proved by strong oral and documentary evidence and that the evidence produced by the plaintiffs both oral and documentary did not fulfil the standard of proof required in such cases. It was also contended that Mst. Ghulam Fatima did not appear herself and that this would amount to withholding of best evidence creating presumption against the plaintiffs. The learned counsel for the petitioners next submitted that according to the principle of Mohammadan Law Para. 342, there should be an acknowledgement by the father of paternity and this acknowledgement should be specifically regarding the legitimacy of the son or daughter. The learned counsel for the petitioner relied upon the case of Fazal Dad and others v. Jhandad and others (1991 CLC 1783) to contend that withholding of best evidence would raise presumption against the plaintiff. The learned counsel for the petitioner concluded that the evidence produced before lower Court was not sufficient to prove the paternity of the plaintiffs.

7. On the other hand, Mr. M.M. Bhatti, Advocate, the learned counsel for the respondents referred to the statements of P.W.1, P.W.2, P.W.3, P.W.4, P.W.5, P.W.6, P.W.7, P.W.8 and P.W.9 to show that the statements of all these witnesses were most consistent and cogent. He stated that amongst the witness the most important witness was P.W.3 Allah Wadhaya the first husband of Mst. Ghulam Fatima whose unshaken statement proved that though Mst. Ghulam Fatima was married to him she was divorced about 30 years ago after which she married Noor Mustafa Shah. He also clearly stated he had two sons from Ghulam Fatima namely Prian Ditta deceased and Muhammad Hussain and that the other plaintiffs namely Ijaz Hussain Shah etc. and were the sons and daughters of Noor Mustafa Shah from Mst. Ghulam Fatima. The statements of P.W.4 Faiz Abbas and P.W.6 real brother of Ghulam Fatima, Mukhtar Ahmed were the witnesses who would qualify to be members of the family under section 50 of the "Evidence Act" and their statements should be treated as trust worthy and credible. Documents such as school leaving certificates, vaccination record and voters list etc. also conclusively prove that the respondents/plaintiffs were the legal heirs of Noor Mustafa Shah. The entire record of the case has been examined once again with the assistance of the learned counsel for the parties.

8. The evidence on the record particularly the statements of P.W.3, Allah Wadhaya, P.W.4 Faiz Abbass, P.W.6 Mukhtar Ahmed and P.W.9 the plaintiff himself conclusively proved the factum of the earlier marriage of Mst. Ghulam Fatima with Allah Wadhaya to Ghulam Fatima 30 years before the date of recording of evidence. Similarly, the same witnesses have unequivocally asserted the marriage of Mst. Ghulam Fatima with Noor Mustafa Shah after divorce from her first husband and tire fact that the other plaintiffs are the sons and daughters of Noor Mustafa through Mst. Ghulam Fatima. In view of the statements of P.W.3, P.W.4, P.W.5 and P.W.9 the non -appearance of Mst. Ghulam Fatima in the witness‑box is not of any significance and no adverse presumption can be drawn from this fact.

9. It is also noticed that acknowledgement of legitimacy and‑ paternity arises more strongly from attending circumstances then through any other means. For decades together Mst. Ghulam Fatima and the other plaintiff namely Ijaz Hussain Shah and others openly lived as the wife and sons and daughters of Noor Mustafa Shah. Noor Mustafa Shah in his lifetime always acknowledged them as such. The locality where they lived and .the persons who came into contact with them over such a long period always regarded them to be the legal heirs of Noor Mustafa Shah. Islamic Law heavily leans in favour of the presumption of legitimacy and not otherwise. If one is to accept the contentions of the petitioners, which in any case is most unsound, it would lead to social catastrophe and ostracization of the respondents/plaintiffs which is totally uncalled for either in law or on facts of the case.

10. A comparison of the oral and documentary evidence produced by the plaintiffs vis‑a‑vis the evidence produced by the petitioners/defendants would lead to an inescapable conclusion, that the evidence has been properly read and appreciated by the two lower fora. No misreading or non‑reading of evidence has been pointed out. No illegality or material irregularity he also emerged from the record of the two Courts below. No case indeed is made out for interference in the concurrent findings now challenged in this civil revision.

11. No ground for interference in the concurrent judgments of two Courts below' is made out, the civil revision is dismissed. H.B.T./G‑111/L Revision dismissed.