1984 PLP 575 (MLD)

The District Judge on the other hand discarded the evidence of Abdul Karim on the ground that the Shijra was not properly maintained and that important entries like that of the son of Muhammad Khan had not been made in that Shijra for 30 years. He relied upon the evidence of Haji Khair Muhammad. He was of the opinion that the deposition of persons like Jeno Dai could be procured by anyone. He also relied upon the Revenue record produced on behalf of the respondent and noted that respondent Muhammad Khan had appeared before the Assistant Commissioner and in his written statement as .well as during the hearing before the Assistant Commissioner respondent Muhammad Khan had admitted that Mst. Shafiat was daughter of Esmail. The District Judge however, noted that the written statement of Muhammad Khan before the Revenue Authorities had not been tendered in evidence but relying upon P L D 1969 S C 136, where it was held that a previous inter parties judgment is admissible to prove a statement, admission or acknowledgment made by a party in his pleadings in his previous litigation as well as the allegation made by it in the pleadings on that occasion, he considered that it was a complete answer to the contention that written statement before Revenue Authorities bad not been proved. Mr. A.Q. Halepota and Mr. Abdul Mateen have submitted that the learned District Judge was not justified in relying upon the Revenue Record because the admission made, if any; by the present appellant before the revenue authorities had not been proved. In respect of this submission I find that the plaint in this suit shows that the document produced with the plaint is the order of the Deputy Commissioner. The documents relied upon are the revenue records and City Survey record. The first witness summoned by the plaintiff was P.W. 1 Karam Chand who had produced the appeal of Mst. Shafiat before the Revenue Authorities, dated 1-1-1970 and the statements of Haji Khair Muhammad and Mst. Shafiat recorded by the Assistant Commissioner Mukhtiarkar as well as the report of the Mukhtiarkar, dated 25-1-1972 where it had been clearly mentioned that the parties were called on 8-1-1972 and heard. It was also mentioned that the parties had nothing to add to their written statement already filed before the Mukhtiarkar, Mirpurkhas. The Assistant Commissioner had also mentioned that the parties were given advice that they could amicably settle the matter. The Assistant Commissioner had submitted a 28 pages report to the Deputy Commis sioner, Tharparkar in that respect has also observed that parties were uncle and niece. The same P.W.1 had also produced the order of the Deputy Commissioner, dated 18-9-1972 in the matter of Mst. Shafiat Begum v. Muhammad Khan and Mst. Jamal Khatoon in the appeal filed by Shafiat Begum in respect of mutation of record of rights made by Mukhtiarkar. The Deputy Commissioner had noted that the respondent had remained absent though served. He had made the following order:

"The deceased Gangu had died on 15-9-1961 i.e. after the promulgation of Muslim Family Laws Ordinance. The appellant was, therefore, entitled to get her legal share from the property of her grandfather, but according to Shariat Law the appellant is absolutely not entitled to get any share from the property of her grandfather when her father (Muhammad Esmail) has expired during the lifetime of her grandfather Gangu. I being a Musalman, consider the Shariat Law Supreme authority accordingly I reject the appeal of the appellant." I have quoted extensively from the report of Assistant Commis sioner, Mirpurkhas as well as the order of the Deputy Commissioner, Tharparkar, dated 18-9-1972, in order to appreciate whether the inference drawn by the learned District Judge, Tharparkar about the admission of relationship by Muhammad Khan before Revenue Authorities was correct or not. It is quite clear from the reading of this record that at that time Muhammad Khan had not challenged the status of the present respondent as the grand daughter of Gangu and had merely relied upon a legal stand that she was not entitled to inherit because her father Esmail had died during the lifetime of his father Gangu. These Revenue Records had been the first documents produced in this case on behalf of the plaintiff /respondent but the appellant had not made any mention to any of those records in his statement and he had thus not challenged their authenticity or authority. Mr. A.Q. Halepota had submitted that the appellant had not made any admission and that the revenue proceedings were completely ex parte and without notice to appellant and hence not binding upon the appellant. I am sorry I cannot accept this submission of the learned counsel in view of the, fact that there is no basis on record for such submission. If the applicant in his deposition had made any such statement to the effect which is now being sought to be argued by the learned counsel for the applicant, 'then there could be some justification for such argument. However, the applicant Muhammad Khan has completely remained silent' on this aspect of the case and has not explained the proceedings or the results which could be drawn from those proceedings. Therefore, these proceedings remained completely As to the submission of lack of notice to appellant in Revenue Case I have to draw presumption under section 14 of the Evidence Act that the official acts have been performed regularly. Therefore, when the Assistant Commissioner has submitted in his report, dated 25-1-1972 that he had called the parties and had heard them and they had nothing to add to their written statement, I have to believe such position to be correct. And, therefore, it is obvious that applicant Muhammad Khan had notice of those proceedings and had appeared before the Assistant Commissioner, Mirpurkhas but he had not made his appearance before the Deputy Commissioner. And hence this suggestion that the proceedings before the Revenue Authorities were not binding upon Muhammad Khan is not correct. In fact Muhammad Khan had never alleged that he had no notice of such proceedings. Both learned counsel thereafter submitted that the inference draw by the District Judge from those proceedings is not correct. I am unable to agree with these submissions as I find that the Assistant Commissioner Mirpurkhas has referred to the parties as uncle, neice and had noted that the nature of decision that would take place would be in regard to legal points. That legal point is clearly explained in the order of the Deputy Commissioner, Tharparkar, dated 18-9-1972 where he has clearly referred to Mst. Shafiat as the grand-daughter of Gangu and has also held that she would have been entitled to get her legal share from the property of her grandfather according to Muslim Family Laws Ordinance but according to Shariat Law was not entitled to get any share as her father Muhammad Esmail had expired during the lifetime of her grandfather Gangu. It is, therefore, obvious that the Deputy Commissioner has viewed Mst. Shafiat as the undisputed grand-daughter of Gangu and the daughter of Esmail but the legal point on which he has decided against Mst. Shafiat is that the pure Muslim Shariat Law does not help her because her father had died during the life of her grandfather and hence she was not entitled, according to Shariat Law to claim inheritance from Gangu even though the Muslim Family Laws Ordinance gave her the right of getting the legal share from the property of her grandfather in place of her predeceased father. In these circumstances the inference drawn from this proceedings by the learned District Judge, the status of Shafiat as grand-daughter of Gangu was admitted by Muhammad Khan, was completely justified. It was held in P L D 1969 S C 136 as under:

"But where the judgment is inter partes, even recitals in such a judgment are admissible. A previous judgment is admissible also to prove a statement or admission or an acknowledgment made by a party or the predecessor in interest of a party, in his pleadings in a previous litigation. "Similarly a judgment narrating the substance of the pleadings of the parties to a litigation is admissible to establish the allegations made by them on that occasion." In P L D 1978 Quetta 45 it was observed as under:

"Inter partes judgments, though not conclusive evidence for or against parties, on any point dealt within, but can be relied to prove statement or admission made in earlier case as well as to discover nature of pleadings in previous litigation. In P L D 1968 Lah. 954 the revenue judgments between' ancestors of parties were relied upon in the circumstances of that case as binding between those parties although it was clearly observed that they were not res judicata. It is, therefore, obvious that the District Judge had not committed any error of law or otherwise in relying upon the revenue proceedings I inter partes and drawing the inference from the nature of pleadings in those proceedings and the order of the Deputy Commissioner. The learned counsels for the applicant then contended that the evidence of Khair Muhammad should not have been relied upon the District Judge because in view of section 50 of the Evidence Act a witness who is giving an opinion as to the relationship of one person to another should depose about the conduct of the society towards that person as a member of the family or otherwise, if he has special knowledge on the subject. They relied upon P L D 1976 S C 767 (778) where it was held that in the matter of relationship it is the conduct of family, on which opinion about relationship is based, which should be established. However, in the present case I find that Khair Muhammad has not only based his opinion upon the conduct of the relations of the family but has made a statement on the basis of his own information and that information has not been seriously challenged in the cross-examination. Mr. A.Q. Halepota had however, contended that since Khair Muhammad was a Khas Kheli, therefore, he could not know the family matters of Teli's to which family, Gangu deceased, belonged, I however, find that Khair Muhammad made clear statement that Gangu used to visit the house of Mubarak who was the husband of plaintiff /respondent and that Khair Muhammad knew Gangu for his whole life. In these circumstances Khair Muhammad was in a position to make a statement on the basis of his personal knowledge and his statement was an opinion based on the conduct of the members of the family or society. Even otherwise the visit of Gangu to the house of appellant and her husband was a clear indication of the relationship existing between them. In any case I find that the appellate Court has simply taken a different view of the evidence produced by the parties, than the view taken by the original Court. The appellate Court has the right in law of disagreeing with the view of the original Court in respect of the same evidence, and unless and until it was shown that the view of the appellate Court was completely unfounded or fallacious or not at all warranted by the record, the view of the appellate Judge should not be interfered with by the High Court in revision. In these circumstances I do not find any force in this Revision Application and the same is hereby dismissed with costs. M . Y . H . Application dismissed.