1980 PLP 1724 (CLC)

13. This Reference was received by the learned Custodian, Evacuee property on 18th June 1963 who sent the same to the additional Custodian Evacuee Property for necessary enquiry. Ultimately the learned Deputy Custodian Evacuee Property became seized of the matter who submitted a report on 10th August 1972. The matter was then palced before the learned Custodian who answered the reference by his order dated 29th June 1974. Answers to the five points of reference are as under :--.- Point Nos. 1 and 3: It was held that Jai Gopal formed a joint Hindu family along with his two sons and that he had no grandsons. On Point No, 3, it was held that Jai Gopal alias Budhan Sain was entitled to 1/3rd share in the property and the remaining 2/3rd share was owned by his. Hindu sons Hari Kishan and Jai Kishan. Point Nos. 2 and 4: On point No. 2, it was held that Jai Gopal alias Budhan Sain was a Muslim in, 1927. Under Point No. 4, it was held that 2/3rd of the property is evacuee, while the remaining l/3rd owned by Jai Gopal alias Budhan Sain is non- evacuee. Point No. 5; On this point, it was held that if Mst. Sardar Begum was found to be the legitimate laughter of Jai Gopal alias Budhan Sain by the Court then she would be entitled to inherit from 1/3rd share of the property to question which was owned by Budhan Sain in accordance with law.

14. Before dealing with the contentions raised on behalf of the parties, it nay also be observed that on the death of the appellant the District Judge, Lahore through Manager of the testate made an appli cation in this appeal for permission to continue the same. This appli cation was allowed by order dated 19th March 1963 and the appeal was directed to be heard along with F. A. O. No. 35/1962 already referred to above.

15. The learned counsel for respondent No. 1 at the very outset raised a preliminary objection that as no plea had been taken in the grounds of appeal about misreading or non-reading of evidence the appellant could not be permitted to raise any contention regarding the findings of fact now. He referred to the provisions of law contained in a Order XLI, rule 2 of Code of Civil Procedure to submit that no ground having been set forth in the memorandum of appeal about misreading or non-reading of evidence on record the appellant could not be permitted to urge in respect of a ground not set forth in the memorandum of appeal. In support of his above contention the learned counsel placed reliance Muhammad Amin v. Ahmad Bakhsh (P L D 1976 Lah. 1302).

16. In answer to this preliminary objection, Malik Muhammad Akbar submitted that though the ground had not been set forth in the memorandum of appeal it was for the Court also to examine on its own the evidence brought on record to see if the findings of the Courts below suffered from any infirmity. He relied on Mst. Bibi Jar, v. Habib Khan (P L D 1975 S C 295) and Jumma Khan v. Allah Diwaya (P L D 1961 B J 3) in support of his above contention.

17. Having considered the contentions of both the learned counsel, I am of the view that the preliminary objection raised on behalf of res pondent No. 1 has considerable force. Order XLI, rule 2, C. P. C. reads as under :- "The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of object on not set forth in the memorandum of appeal ; but the Appellate Court in decid ing the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the Court under this rule."

18. In view of the provisions of Order XLII, rule 1, C. P. C. the provisions of Order XL1, rule 2, C. P. C. are applicable to the hearing of this appeal as well.

19. A plain reading of Order XLI, Rule 2 of the Code of Civil Procedure shows that no ground can be urged at the hearing of the appeal which had not been set forth in the memorandum of appeal. On a true construction of this provision it emerges that a memorandum of appeal is meant to be a concise statement of the grounds on which the appellant proposes to support the appeal. It is a notice to the Court that such and such specific grounds are proposed to be urged on behalf of the appellant and also serves as a notice to the respondent that he should be ready to meet those specific grounds. Not setting up of a ground of appeal apart, I would go even to the extent of saying that a party should not be allowed to urge a point which is only a bald ground. The reason for this being that it causes a serious disadvantage to the parties to litigation and the Court which is to hear the appeal. Such a situation leaves a door wide open for all kinds of submissions, thus, tending to take the time of the Court and taking the respondents by surprise. This also leads to and if I may say so, such situations are responsible for the inordinate delays that occur in the disposal of cases. Such practice must therefore be dis continued and deserves to be deprecated for it would in turn bring the benefit of having more specific and efficient drawing up of the grounds of appeal. Whilst on the point it would not be out of place to mention here that if the learned counsel for the parties to a litigation concentrate on the essential and important features of a case and eliminate superfluous redundancies etc. the arguments become more helpful to the Court in focusing its attention on the all important aspects of the case and elimi nate the waste of time on less important, superfluous and unnecessary points.

20. The admitted position which is also apparent from the record is that in the memorandum of appeal no specific ground as to non-reading or misreading of evidence on record has been set forth. That being so, it has been rightly contended by the learned counsel for respondent No. 1 that the appellant cannot now be allowed to urge anything regarding find ings of act. The objection assumes greater significance as the appellant has not even sought permission of this Court to urge this ground and on the? contrary it has been argued that the Court shall itself go into this matter. The High Court in second appeal cannot call in question the concurrent findings of fact given by the Courts below unless any misreading or non reading is brought out. The authorities cited on behalf of the appellant also do not have any relevance to the objection raised on behalf of respon dent No.

1. There authorities only lay down the scope of interference of the High Court in a second appeal where it finds misreading or non reading of the record by the Courts below with which perhaps there is neither any cajole nor is that related to the objection raised here.

21. Notwithstanding the position that the appeal is liable to be dis missed on account of the preliminary objection I allowed the learned counsel for the appellant to make submissions on the merits of the case in view of the appeal having been admitted and its pendency for a long time.

22. The learned counsel for the appellant contended, firstly, that all oral evidence relied upon by the Courts below was merely hearsay. He in this regard referred to the evidence of P. W. 3 ; secondly, that the documents which have been made the basis of find ing on the issue in question were not admissible in evidence ; and lastly, that the birth of respondent No. I during the wedlock of her mother with Jai Gopal alias Budhan Sain was not established.

23. On the other hand, the learned counsel for respondent No. 1 submitted that the issue in question pertains to a fact on which both the Courts below have given a concurrent finding to the effect that respondent No. 1 plaintiff is the only child (legitimate daughter of the appellant. defendant No. 1) after the latter's conversion to Islam. This finding he submitted, is therefore not open to challenge in a second appeal Reliance was placed by the learned counsel in support of his above con tention on Abdul Majid etc. v. Khalil Ahmed (P L D 1955 F C 38) and Mir Abdullah v. Muhammad Ali etc. (1979 S C M R 280).

24. The learned counsel for respondent No. I also argued that even if it be assumed though not conceded that the finding of the Courts below was erroneous and arrived at by misappreciation of evidence, the High Court cannot substitute its own finding while deciding a second appeal.

25. The second contention raised by the learned counsel for respon dent No. 1 was that no specific instance of misreading or non-reading has been pointed out on behalf of the appellant.- As to the evidence of P. W. 3. it was submitted that it was a direct evidence pertaining to the issue involved and can neither be dubbed as hearsay nor it suffered from any other infirmity.

26. On the admissibility of documents in evidence it was submitted by the learner'. counsel for respondent No. l that no pointed reference has been made by the learned counsel for the appellant as to which docu ment was inadmissible and hew. He urged that the only two relevant documents, i.e. the power-of-attorney Exh. P. 1 and extract from the General Register Exh. P. 2 were duly admitted in evidence and could not be objected to on any ground. He relied upon Shafiq Ahmad etc. v. Abdul Latif Khan etc. (P L D 1961 Lah. 439_) to support his above contention. Lastly, the learned counsel contended that there was presumption of legitimacy attached to respondent No. 1 as observed in Syed Ameer Ali's Mohammadan Law, 1965 Edition, page 172 and Mahomedan Law by D. F. Mulla, 1977 Edition, para. 342.

27. In reply, the learned counsel for the appellant submitted that the findings of the Courts below that Mst. Iqbal Begum was the wife of tae appellant and that Mst. Sardaar Begum was his daughter from the former were based on assumptions only and thus liable to be set aside.

28. The contentions raised by the learned counsel for the appellant have apparently no force. In so far as the first contention is concerned, the whole of the evidence has been gone into with the assistance of the learned counsel. He was unable to point out any defect in the evidence which could make it hearsay. The evidence of P. W. 3, late Syed Muhammad Amin Andrabi Advocate was read in extenso. The reading of the evidence clearly shows that it is the most direct evidence on the point and can by no stretch of imagination be dubbed as hearsay. The witness categorically stated that he knew Jai Gopal and his father Lakhey Shah, that in a case under section 353 of the Pakistan Penal Code the appellant Jai Gopal, Mst. Iqbal Begum and one of the appellant's servants were accused, that in the said case he was the counsel for the accused, that during the conduct of that case the appellant had told him that Mst. Iqbal Begam was his wife, that Jai Gopal had also told the witness that Mst. Iqbal Begum way, pregnant and request should be made to the Court for her exemption from appearance, that on one occasion the Court had directed Mst. Iqbal Begum to unveil which she refused on which Jai Gopal also got infuriated and attacked the court with a club upon which another case, was registered against him, that in that case also the witness had appeared as a witness before the then Deputy Commissioner, that the witness was also his tenant and the appellant used to receive rent from him, and that he had told the witness that he had married a Muslim lady" Mst. Iqbal Begum, from whom he had a daughter and, further, that when the witness was conducting the case Jai Gopal was a Muslim and was called by the name of Budhan Sain. In the cross-examination, the, witness refused the suggestion that Jai Gopal became a Muslim in 1938 and that he was a Hindu in 1927. It was asserted by the witness that according to Jai Gopal's own saying he was Muslim in 1927. The witness also denied the suggestion that apart from Mst. Iqbal Begum he had any other Muslim wife. The evidence of other prosecution witnesses, namely Ehsan Ali, Warris Ali, Jalal Din, Malik Shah Din, Malik Taj Din and Barkat Ali, is also direct evidence and - can in no manner be dubbed as hearsay. The first contention, therefore, fails.

29. Adverting, now, to the second contention, it may be observed that the learned counsel for respondent No. 1 has rightly pointed out that neither the learned counsel for the appellant referred to any specific document which had been illegally admitted in evidence nor advanced any reasons therefor except a vague reference to Exh. P. 1 and Exh. P. 2.

30. Exh. P. 1 is the power-of-attorney tendered in evidence. It was executed by the appellant appointing Mst. Iqbal Begum the mother of; respondent No. 1 as his attorney for filing an appeal. It has been got proved through P. W. 1 Mr. Ehsan Ali Advocate' who had accepted the brief of appeal of Budhan Sain. He affirmed that the writing above his signature which, inter alia, includes the signature of Budhan Sain existed before he signed. No objection was raised to the admissibility of thiws document in evidence at the relevant time. The other document regarding the admissibility of which objection has now been raised is Exh. P.

2. This is an extract from the General Register for the years 1926 to 1931. The record pertaining to this extract had been destroyed as provided by rules. This document therefore was evidently admissible in evidence as provided by section 35 of the Evidence Act, 1872. The second contention of the learned counsel in view of the above discussion also therefore fails.

31. As to the third contention, suffice it to say that apart altogether from the fact that this is a finding of fact concurrently arrived at by the two Courts below and that nothing has been pointed out to show any mis reading or non-reading of record in arriving at this finding and therefore the same would he immune from attack in a second appeal, it may also be observed that the finding is based on proper appreciation of the evidence brought on record. To prove the fact that respondent No. 1 was the legitimate daughter of the appellant the respondent produced a number of witnesses. The 'testimony of all of them in this respect is direct. The evidence of P. W. 3 has already been discussed above which does tend to show that respondent No. 1 was the daughter of the appellant as per his own admission before the witness. Similarly P. W. 4 has also categorically stated that the appellant was married to the mother of respondent No. 1 and that Mst. Sardar Begum respondent No. 1 was the daughter of the appellant from Mst. Iqbal Begum. He has deposed to the above effect on his own personal knowledge as he was the postman of the area and knew the above-mentioned persons. In cross-examin ation, nothing could be elicited from him which could discredit his above statement. The evidence of P. W. 5, P. W. 6 and P. W. 7 is also direct and establishes the marriage between Jai Gopal appellant and Mst. Iqbal Begum the mother of respondent No. 1 and that respondent No. I Mst. Sardar Begum is his daughter.

32. The only evidence adduced by the appellant in rebuttal on this point is that of D. W. 3 Sher Muhammad which was disbelieved by the Courts below. The learned civil Court did not give credence to the testimony of this witness as in his cross-examination he gave evasive replies. There appears to be no valid exception available nor has any been raised as to the finding of the learned civil Court that the evidence of this D. W. was not creditable. The foregoing discussion thus leads to the only conclusion that it has been fully established by respondent No. 1-plaintiff that she is the daughter of the appellant and that she was born during the wedlock of her mother with the deceased Jai Gopal.

33. It may also be pointed out that the evidence for the purpose of establishing the relationsnip of a person with another person is governed by section 32 (5), Evidence Act read with section 112 ibid. The evidence' of P. W. 3, P. W. 4 and P. W. 7 clearly falls within the ambit and scope of the aforementioned provisions and is legally admissible for determining the controversy about respondent No. 1 being the daughter of the appel lant. Nothing has been urged on behalf of the appellant to show that the evidence led does not conform to the requirements of the above provisions.

34. Before parting with the case, it may be observed that although not urged at the time of hearing of the appeal, there is a ground taken in the memorandum of appeal about the appellant being insane since 1920. Though I am not obliged to deal with this ground a it was not urged at the time of hearing and shall be deemed to have been abandoned, never theless, I thought it desirable to examine the case as regards this con troversy as well. I am of the opinion that this ground is also of no avail to the appellant. The evidence brought on record by the appellant himself shows that he was discharged from the Punjab Mental Hospital in 1921 as per statement of D. W. Z Muhammad Yousuf clerk of the Hospital. It therefore follows that after his discharge from the Hospital the appellant was sane till insanity reverted some time in 1932 or there about as alleged in the plaint. In any case the appellant, at the relevant time viz. 1927 when he statedly married Mst. Iqbal Begum and when respondent No. 1 Mst. Sardar Begum was born, was sane. Had he not been sane during the year 1927 he could not have been convicted in the criminal cases registered against him as provided by section 84 of the Pakistan Penal Code. The ground of insanity of the appellant in the year 1927 also therefore has no substance.

35. Yet another fact which I would like to point out before conclud ing is that the learned counsel for respondents Nos. 2 and 3 attempted to argue the matter to submit that the decree of the civil Court passed against the said respondents is liable to be set aside, I did not permit the learned counsel to argue the matter as not only the said respondents did not challenge the decree passed against them by the civil Court before the learned lower Appellate Court but they also neither cared to file an against the judgment and decree of the learned Additional District Judge nor did they file cross-objection when they received notices of this appeal. In the context of this position to allow respondents Nos. 2 and 3 to argue against the judgments and decrees passed against them by the courts below would tatamount to allowing a premium to the neglect of the respondents which is neither the intention of the law nor can be allowed in equity. Appeal dismissed,