1985 PLP 2737 (CLC)

The controversy in this appeal directed against the appellate decree of the learned Additional District Judge, Mianwali, dated the 5th November, 1977, which affirmed the decree for possession of the land in dispute, situate in the area of village Lundi Nasheb, Tehsil and District Bhakkar, passed by the learned Civil Judge, Bhakkar, on the 12th February, 1976, in favour of the respondents and against the appellant, relates to the inheritance of land in question left by Banda deceased. The crucial point which the learned Courts below were called upon to determine and which awaits decision before this Court is whether Banda was the son of Naza.

2. To help in understanding the dispute it may be advantageous to have in view the inter se relationship of the parties. Ghulam Sadiq, appellant, is the brother's son of Banda's mother, Mst. Moran. Respondents 1 to 6 claim themselves to be the children of Banda's father's brothers. Admittedly Mst. Moran was married to Naza. According to the appellant Naza divorced Mst. Moran though the respondents insist that she had not been divorced and that the marriage continued to subsist. The appellant alleges that Mst. Moran gave birth to Banda a number of years after she had been divorced and that Banda was illegitimate child. The respondents assert that he was legitimate son of Naza having been born during the wedlock. Naz9 had four brothers Allah Yar, Muhammad Yar, Hakim, and Makhan. Respondents 1 and 6are the sons and respondent 7 is the son of the pre-deceased son of Allah Yar. Respondents 3 to 5 are the children and respondent 2 is the son of Muhammad Yar.

3. The suit land was inherited by Mst. Moran from her father, Ghulam Muhammad. After her jeath the land was mutated in the name of her son, Banda, vide mutation No. 2790 (copy Exh. P. 8), which was attested on the 5th April, 1951. When Banda died issueless on the 21st April, 1958, dispute touching inheritance of his property errupted. The Assistant Collector decided the issue on the oath of the appellant who said that Banda was illegitimate. Mutations Nos. 3482 (copy Exh. p. 3) and 3483 (copy Exh. P. 2) regarding Milkiat and tenancy lands in suit were sanctioned on the 23rd October, 1974. One-fourth share of the land was given to Mst. Zaino (P.W. 1), widow of Banda deceased, and three-fourth share went to the appellant. Allah Bakhsh, father of respondent 2, agitated the matter without success in appeal before the Collector.

4. On the 30th January, 1973, Naz Ali, respondent 1, instituted suit claiming possession of the land in dispute, which had been mutated in the name of the appellant, for himself as well as for respondents 2 to 7 on the basis of their being descendants of the father's brothers of Banda. The land which had fallen to the share of Mst. Zaino was not touched. The appellant maintained that Banda was illegitimate son of Mst. Moran and not son of Naza. He asserted his entitlement to inherit the property to the exclusion of the respondents. He also pleaded the bar of limitation.

5. The learned trial and the appellate Courts below recorded concurrent finding that Banda was the son of Naza. In view of the admitted joint possession of Mst. Zaino (who was taken to be the co-sharer of the respondents) over the suit land, the suit was held to be within time and was decreed. Having failed in appeal before the learned District Court the appellant has approached this Court in further appeal.

6. Mst. Zaino, widow of Banda. P.W. 1, deposed in the witness-box that Banda was the son of Naza. She bore out the respondent relationship with Banda and Naza. She added that the appellant was not related to Banda. Allah Dad, P.W. 2 a resident of village Lundi Nasheb, where the parties lived, and who was 60/70 years of age when he was examined in the witnesses-box, confirmed what Mst. Zaino said. As P.W. 3, plaintiff-respondent 1, supported his case. None of these witnesses was put any question regarding divorce of Banda's mother by Nnia.

7. Sheikh Ghulam Yasin, U.W. 1, Haqdad Khan, D.W. 2, Wadhu, D.W. 3, and the appellant as U.W. 4, bore testimony to the fact that Banda was illegitimate. Sheikh (lhulam Yntiin and Wadhu did not talk oI' Naza's marriage with Mst. Moran or her divorce. Though Ilagdad Khan, D.W. 2, and Ghulam Sadiq, D.W. 4, stated that Naza had divorced Mst. Moran yet they failed to tell as to when divorce had taken place. Normally continuity of marriage is presumed. The appellant ought to have produced cogent evidence to establish that Naza had divorced Mst. Moran as also as to when the divorce had become effective. In the absence of cross-examination of the witnesses produced by respondent 1 on the important point of divorce of Mst. Moran it would be rather different to accept the bare words of mouth of Haqdad Khan, D.W. 2, and the appellant for concluding that Banda had been be gotten long after his mother had been divorced expecially when the appellant's pleadings are completely silent on the point of divorce ofl Mst. Moran. 8.???????? The learned counsel for the appellant tried to reap benefit of Naza's admission occurring in the Tamleeknama (copy Exh. D-2) which he executed on the 2nd September, 1918, conveying his landed property to his brother's son, Bakhsha, respondent 4, that he had no male issue. He also referred to the entries of the copy of the Shajra Nasab for the year 1956-57, Exh. D-10, wherein respondent 4 was shown to be Mutbana of Nazi) but Banda watt not mentioned as son of Nazi), Banda was entered as son of Mst. Moran. His argument that failure on the part of Banda and his mother to object to the mutation of inheritance to Naza's estate in favour of respondent 4 on the basis of Tamleek as also Banda's default in raising objection to the mutation of inheritance to the estate of Hakim and Makhna pointed towards the absence of Banda's relation with Naza does not appear to have any legal force behind it. Naza had given away his property during his lifetime to respondent 4 and, therefore, it might not have been possible for Banda to enforce his claim: Allah Yar and Muhammad Yar were alive when Hakim and Makhna died. In the presence of their brothers Banda could not succeed to get any share out of the estates of Hakim and Makhna.

9. The respondents relied upon the entries pertaining to birth and death of Banda in the registers of births and deaths, Exhs. P. 1 and P. 9, as also the entries of Mutation No. 2790 (copy Exh. P 8) regarding inheritance of the estate left by Mst. Moran, attested on the 5th April, 1951. In Exh. P. 9 Banda is recorded as having born on the 30th October, 1901. He is entered as son of Naza. In Exh. P. 1 his date of death is shown as the 21st April, 1958, and his father's name is given as Naza. In Exh. P 8 he is described as son of Naza. These entries had been made long before the dispute between the parties arose. They indicate that at the time of his birth and death as well as at the time of death of his mother he was known, accepted and entered in the official papers as the son of Naza. In these circumstances it is legitimate to presume that in the Tamleeknama, copy Exh. D-2, Naza described himself as being without male issue simply because he wanted to transfer his landed property to his brother's son, Bakhsha, respondent

4. Therefore, much importance cannot be attached to the statement that he was without a male issue.

10. In view of what has been said above Banda is proved to have been born during the subsistence of marriage of Moran with Naza and, therefore, would be taken to be the son of Naza. The finding of learned Courts below on the point cannot but be affirmed.

11. The learned Courts verdict that the suit was within time because Mst. Zaino, the respondents co-sharer, was in joint possession of the land in dispute is unexceptionable and needs no interference. The appeal is consequently dismissed with costs. H.B.T.????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.