1988 PLP 1245 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑‑Naz Ali, respondent No.1 filed a suit for possession of 3/4 share of suit land claiming to be heir of Banda deceased who died in 1958 on the ground that Banda was the son of his real uncle Naza. The other nephews of Naza did not join him in the suit and some of them were impleaded by Naz Ali as pro forma defendants. The suit land was inherited by Banda from his mother Mst. Moran and she had inherited it from her own father. The present petitioner is the son of real brother of Mst. Moran. The petitioner's case was that Banda was not the son of Naza, uncle of Naz Ali respondent No.1. The trial Court decreed the suit per judgment and decree dated 12‑2‑1976. Appeal filed by the petitioner was dismissed vide the judgment and decree dated 5‑11‑1977. Thereafter, the petitioner filed Regular Second Appeal in the High Court which was dismissed with costs vide the impugned judgment dated 25‑11‑1984.

2. Learned counsel for the petitioner contended that admission of Naza in Ex.D/2 (Tamleek Nama) to the effect that he had no male issue, clinched the matter regarding the paternity of Banda and there remained no doubt that Banda was not the son of Naza and thus the respondents were not entitled to any land left by Banda, they being heirs of the brother of Naza. In the presence of this admission of Naza himself, the learned Courts below could not derive any presumption that Banda was son of Naza and the finding of the learned High Court Judge that Banda would be taken to be the son of Naza, proved to have been born during the subsistence of marriage of Mst. Moran (mother of Banda) with Naza is equally ill‑founded, without any basis and conjectural. The admission of Naza proves, it was submitted by the learned counsel, that Banda was not born during the subsistence of marriage of Mst. Moran with Naza. He also argued that the entries of pedigree table Ex. D‑10 and those recorded in mutations Ex.D/4, Ex.D/5 and Ex.D/6 placed on record have been misread, misconstrued, misinterpreted and kept out of consideration without any fair reason. On the contrary, paternity of Banda, given in Birth Certificate Ex.P‑9 and Death Certificate Ex.P‑1 has wrongly been given undue weight on the basis of presumptions. Such entries have no legal presumptions being hearsay evidence and the persons who got those entries made were not produced in Court, casts further doubt on the veracity of these documents. The learned counsel also challenged the question of limitation which, according to him, has been decided contrary to the law laid down by this Court. According to the learned counsel there was complete ouster of the respondents for statutory period. Even Mst. Zaino was not enjoying any joint possession or receiving any share of produce and no credible evidence to this effect has been brought on record; that even otherwise the respondents could not take advantage of joint possession of Mst. Zaino because there was complete ouster of the respondents and Mst. Zaino was not party to the proceedings either as plaintiff or defendant.

3. We have examined the contentions raised by the learned counsel before us and find that there is substantial force in his arguments. The Tamleek Nama Ex. D‑2 contains a recital to the effect that the land in dispute is in the possession of Naza which he has transferred to Bakhshoo son of Muhammad Yar, caste Dhodi, resident of village Lundi, Tehsil Bhakkar by Tamleek as Naza had no male issue and Bakhshoo is his real nephew i.e. son of his brother. We grant leave to consider inter alia the points raised by the learned counsel. Security Rs.2,500/‑. To be heard on the present record, with liberty to the parties to file additional documents, if desired. Status quo shall be maintained. M.Y.H./G‑95/S??????????????????????????????????????????????????????????????????????? Leave to appeal granted.