MAULVI ANWARUL HAQ, J. On 11.4.1987 Amir, predecessor-in-interest of the petitioners filed a suit against the respondent. In the plaint it was stated that Amir plaintiff had a brother namely Mudi and a sister namely Mst. Khatoon. On the death of father, Ali the suit land devolved upon Ameer, Mudi and Mst. Khatoon. Mudi died 2 years ago and his estate was mutated in favour of Amir plaintiff vide inheritance mutation No 399 dated 16.3.1987. Mst. Khatoon had died on 13.2.1987 and her inheritance mutation. No. 398 was also taken up on the same date. Mst. Khatoon had not married and had died as such. However, the respondent managed to get her estate mutated in his favour representing himself to be her son while Mst. Khatoon was shown to be widow of Baqir Ali, father of the respondent. A declaration was accordingly sought that the petitioners are the owners of the suit land and the said mutation is void. The respondent in his written statement took the plea that Mst. Khatoon was his mother and as such he was the sole heir. Issue were framed on 21.7.1987.
Evidence of the parties was recorded. The learned Trial Court dismissed the suit on 8.2.1990. A first appeal filed by the petitioner was dismissed on 2.2.1995. Civil Revision No 483-1995 filed by the petitioner was allowed by this Court and the matter was remanded to' the learned Trial Court. After the remand issues were amended and following issue No. 3 was framed `Whether the defendant is the real son of Mst. Khatoon Bibi? OPD"
On 25.11.2000, the learned Trial Court noted.That onus of the material issue is upon the respOndent and he called upon him to lead his evidence first. On 19.5.2001 it was stated on behalf of the respondent that he relied upon the evidence already recorded. Vide judgment and decree dated 27.11 2001, the learned Trial Court decreed the suit. A first appeal filed by the respondent was allowed by the learned Additional District Judge, Okara on 26.3.2002 who dismissed the suit of the petitioner.
2. Learned counsel for the petitioner contends that apart from the fact that no evidence within the meaning /. R. of Article 64 of the Qanoon-e-Shahadat Order, 1984 is available on record, the evidence led by the respondent was discrepant and was rightly not relied upon by the learned Trial Court. The learned Additional District Judge, on the other hand, has proceeded to set aside the judgment and decree on the grounds, which are neither here nor there.
3. Learned counsel for the respondent, on the other hand, while conceding that the evidence contemplated by the said Article 64 is not available has however, vehemently contended that Amir the deceased-plaintiff was the best witness available in the circumstances of.The case. But he avoided to enter the witness-box and instead put his son as his attorney to deny the relationship.
According to the learned counsel this circumstances is enough to raise an adverse inference against the plaintiff party.
4. I have gone through the records. Now in the first instance an omnibus issue was framed on 21.7.1987 as follows:- Whether the plaintiff is owner in possession of the.Suit property and mutation No. 399 dated 11.3.1987 regarding succession of the deceased Khatoon in favour of the defendant is illegal, void and ineffective upon the rights of the plaintiff ? OPP.
The plaintiff was accordingly called . Upon to begin. He produced Muhammad Saeed as PW.1, Bashir Ahmad as PW.2 residents of Chak No. 50/3-R who stated that the respondent is not the son of Khatoon who died unmarried. Bahsir Ahmad appeared as PW.3 and produced special power of attorney as Ex.P.1 of his father, plaintiff. He also stated that his uncle Mudi and aunt Khatoon died unmarried. Khatoon died in the house of his father, who is in possession of the suit land. The respondent claimed his share, when they came to know about the mutation, which was attested without their knowledge. In cross-examination he denied that Khatoon was married to Baqir Ali and the respondent is the result of the said wedlock.
5. The respondent produced DW.2 Noor Hussain aged 78 years resident of Chak No. 368/GB who stated that he knows the parties and that respondent is the son of Baqir and Khatoon. That he had gone in the Barat when, Khatoon was married to Baqir: In his cross examination he stated that Ghulam Ali was born in Chak No. 368 GB and Baqir Ali also used to live there. Respondent was born after 1 % years or 2 years of the marriage. He stated that Baqir had enmity with the parental relations of Khatoon and during the first eight or ten years Khatoon used to live with Baqir Ali only one or two months and then she went away. She died three years ago. Respondent resides in Chak No. 24/GR since the last abut 8/10 years. Pehlawan aged 66 years resident of Chak No. 368/GB appeared as DW.3. Now he stated that Baqir and Khatoon used to live as husband and wife in their village and respondent was born as a result of wedlock. That respondent was born 3 or 4 years after and that he was born in Chak No 368/GB. Nikah was performed 50/55 years. Baqir died 10 years ago in Chak No. 368/GB while Khatoon died in Chak No. 50/R-3. Ghulam Ali respondent appeared as DW.1 to state that Baqir is his father and Khatoon is his mother and Amir plaintiff is his maternal uncle and that he has been living with his mother in his paternal home. Now he says that his father died 10 years ago in village Rehana, Tehsil Sumandari, District Faisalabad. He says that he was born 3 years after the marriage of his parents in his paternal house in Chak No. 50/3-R. Now the said issue No. 3 was framed on 11.11.2000 and the respondent was called upon to lead the evidence but he stated that he would not lead any other evidence. To my mind in the said circumstances of the case, when the onus was upon the respondent, and by that time Amir had died, the fact that at the first instance he did not enter in the witness-box would be of no relevance.
6. Now in he case of Ghulam Muhammad and another v Allah Yar and others (PLD 1965 Lahore 482)
Section 50 of the evidence Act, 1872 (Article 64 is a reproduction of the Act, provision) came up for interpretation.
It was held that it is the opinion expressed by conduct of any person who has special means of knowledge about the relationship, which is relevant under the said provision of law. The opinion of a competent witness must be "expressed by conduct" and in case it is not so relevant based on conduct it would be irrelevant. It was then observed by his Lordship that it is, therefore, all the more necessary that in order to lay the foundation for admission of evidence of this kind all the necessary ingredients of this section must be brought out positively. His Lordship then referred to the case of Lakshmi Reddi v. Venkata Reddi (AIR 1987 PC 201) and quoted the following observation in the said judgment with . Approval.
"It cannot rightly be left to time or chance or cross examination to disclose whether a statement has any basis which could give it value or admissibility."
The observation was made after a note that the witness relied upon by the learned trial Judge in the said case had not at all stated the source of their information which was the basis of their knowledge of the relationship of the parties in the said case.
7. Now the caste of Ghulam All is Pawli. Noor Hassan, DW.2 stated himself to be a Baloch and so is the case of PahWalan, DW.3. Pahwalan DW.3 is not even aware of the caste of the plaintiff and the said lady who was admittedly the sister of the plaintiff.
8. Apart from the said inherent defect in the evidence led by the respondent, the learned Trial Court very correctly read the evidence of the said witnesses and discarded the same. Now Noor Hassan DW.2 and Pahwalan DW. 3 stated that Ghulam Ali was born in Chak No. 368/GB. Now Ghulam Ali says that he was born in the paternal house of his mother, which is in Chak No. 50/3-R. One wonders as to which is the person regarding whom DWs. 2 and 3 have made the said statements.
Similarly regarding Baqir Ali, the father of the respondent, it has been stated that he died in Chak No. 368 (DW 3) while Ghulam Ali states that the person who is his father died in village Rehana, Tehsil -Sumandari, District. Faisalabad. The said Chak No. 36 is in Tehsil Jaranwala of the said District.
9. Now coming to the judgment of the learned Additional District Judge. A reading of paras. 4 and 5 of the judgment would clearly show. That the learned Additional District Judge h:.s worked under the impression that the onus to prove the negative was upon the petitioner. Be that as it may, he has stated in para NO. 5 at page No. 5 of his judgment that DW.1 Ghulam Ali clearly stated that Mudi was his uncle and Khatoon. Was his mother and his father died-10 years back in mauza Rehana, Tehsil Sumandari, District Faisalabad. He then states that DW.2 Pahlawan supported the statement of DW.1. I wonder as to whether the learned Additional District Judge read the statements of .DW. 2 and DW.3 because had he read the same, he would have found that according to these witnesses the father of the person regarding whom they had made statements had died in. Chak No. 368/GB in Tehsil Jaranwala, District Faisalabad. The learned Additional District Judge had also failed to read that according to DW:1 he was born in Chak No. 50/R-3 whereas according to DWs. 2 and 3 the said person was born in Chak W. 368 GB. It is indeed regrettable that the learned Additional District Judge proceeded to rely on the very mutation, which was challenged by the deceased plaintiff to hold that the respondent is the son of Khatoon, who was the widow of Baqir Ali.
10. Having thus exarriined the records and the two judgments in the light of the P. Pplicable law, I do find that the learned Additional District Judge had acted with material irregularity in the exercise of his jurisdiction while failing to read the evidence on record and also failed to take note of the applicable law. The civil revision is accordingly, allowed. The judgment and decree dated 26.3.2002 of learned Additional District Judge, Okara is set aside and the one passed by learned Trial Court on 27 11.2001 is restored with costs throughout.
Civil Revision .