MIAN SAQIB NISAR, J.--- The suit of the respondent challenging the mutation of inheritance in his favour as also in favour of the petitioners bearing No. 663, dated 28.4.1986, as illegal and erroneous, was dismissed by the learned Civil Judge, vide judgment and decree dated 14.10.1998; however, on appeal of the respondent, which was accepted, the judgment and decree has been set aside and the suit stands allowed.
2. Briefly stated the facts of the case are that Nabi Khan, died in the year 1985; the mutation of his Inheritance No. 663, dated 28.4.1986, was attested in favour of Nawaz Khan, Abdul Ghafoor and Shabrati (respondent) as the sons and Mst. Chandri, as daughter of the deceased. According to the mutation and also the Rapt Roznamcha of the Patwari, the said mutation was based upon the statement of the respondent Shabrati, as to who are the legal heirs of Nabi Khan. Anyhow, Shabrati on 16.3.1987 brought a suit for the declaration, challenging the said mutation and claiming that only he and Abdul Ghafoor (defendant/respondent) are the sons of Nabi Khan, whereas Nawaz Khan and Mst. Chandri are not his children, rather his the matter was contested by the petitioners, who claimed that they all are the sons and daughter respectively of Nabi Khan, resultantly, issues were framed. Shabrati himself appeared as PW-1, and examined PW-2 Naik Muhammad. Besides, he brought on the record Ex.P-1 and Ex.P-2, the jamabandis both for the year 1984-85; Ex.P3, the Mutation No. 646, dated 9.2.1986, through which, Nabi Khan, had gifted 10 marlas of his land, in favour of Abdul Ghafoor; Ex.P-4 the Mutation No. 643 of even date through which 10 marlas of land, was given to Shabrati; Ex.P-5 the disputed mutation; Ex.P-5/1, the affidavit of Abdul Ghafoor dated 16.2.1991, according to which, he deposed that only he and Shabrati were the legal heirs of Nabi Khan and not Nawaz Khan and Mst. Chandri and also Ex.P-6 a copy of the suit earlier filed by Shabrati, perhaps regarding the same property, in which, the present petitioners as also Shabrati's sons Muhammad Aslam and Muhammad Ashraf, were impleaded as the parties and Abdul Ghafoor, Nawaz and Mst. Chandri are stated to be the sons of daughter of Nabi Khan. As against this, the petitioners examined DW-1 Borey Khan, who is the member of the family of Nabi Khan and stated to have participated in his marriage; he knows about the family and has stated that the petitioners Nawaz and Mst. Chandri are the son and the daughter of the deceased. DW-2, Bhaley Kham, is also related to Nabi Khan and has deposed to the same effect; DW-3 is Nawaz Khan, whereas DW-4 is Abdul Ghafoor, who admittedly is the son of Nabi Khan and has stated that Nawaz and Mst. Chandri, are also the children of Nabi Khan; he has refuted his affidavit Ex.P-5/1 and has explained as to how Shabrati could have got his signature thereupon. The petitioners also tendered in the evidence, Ex.D-1, copy of rapt dated 14.4.1986, which as per record, was entered on the statement of Shabrati and it is on that basis, the disputed mutation Ex.D-2 was attested; besides, they also produced the copy of the plaint Ex.D-3, this is a case, which was filed by Shabrati against the petitioners, regarding the estate of Maley Khan; in this suit, again Nawaz, Abdul Ghafoor and Mst. Chandri have been shown as the sons and daughter of Nabi Khan and in the cross- examination, Shabrati has admitted the filing of the suit; he also admitted that rapt was entered in the roznamcha on his statement, but denied if he stated that Nawaz and Chandri are also the children of Nabi Khan; Ex.D-4, is the copy of the identity card of Nawaz Khan, which is dated 15.9.1976 and his father's name mentioned there is Nabi Khan; Ex.D-5 is the voter list, in which Abdul Ghafoor, Nawaz Khan, Shabrati are shown to be the sons of Nabi Khan.
3. Learned counsel for the petitioners on the basis of overwhelming documentary evidence argued that this was proved by the petitioners that they are the sons and daughter of the deceased Nabi Khan and learned Appellate Court, has misread the evidence on the record especially Ex.P-6 and Ex.D-3, the important documents, which are in the nature of admission by Shabrati, about the parentage of Nawaz and Mst. Chandri, and have not been considered in their true perspective.
Moreover, the learned Appellate Court has drawn erroneous inference, for example, it is stated in the judgment that if Nawaz and Mst. Chandri were the son and daughter of Nabi Khan, he would have also gifted some property to them, as was done in the case of Abdul Ghafoor and Shabrati; furthermore, the statement of Naik Muhammad has been construed, if he was related to the parties, whereas this is factually incorrect; he had no relations with Nabi Khan, rather is related to Shabrati from his wife side and also Shabrati's son is married to his daughter. It is also submitted that the learned Appellate Court, has discarded the roznamcha waqiati that this rapt is not shown to have been accurately recorded on the statement of Shabrati.
4. I have heard learned counsel for the parties and find that the Trial Court has duly considered the evidence on the record and has come to the factual findings, which are based upon cogent reasoning. As against the above, the reasonings of learned Appellate Court are absolutely based upon erroneous inference; are indiscernible and the result of misreading and non-reading of the documents; the most important documentary evidence in the case is the two suits, filed by Shabrati against Nawaz Khan, Abdul Ghafoor and Mst. Chandri, etc.; though he subsequently withdrew the suits to correct some formal defect with the permission of the Court, but the fact remains that he never filed any fresh suits after the withdrawal thereof, and in these two suits, as originally filed, the father's name of Nawaz and Mst. Chandari is stated as Nabi Khan. This admission by Shabrati in his plaints, cannot be taken lightly and the oral evidence could be given preference upon the documentary evidence and particularly Ex.P-6, which was brought on the record by Shabrati himself; besides, the Court of appeal has also discarded the voter list on flimsy and unconvincing ground/reasoning that the ages of Nabi Khan and Shabrati given therein, are not, accurately mentioned. But has failed to consider that as against the above, Shabrati has not brought on record any documentary evidence to establish that Nawaz and Mst. Chandri were the /children of some other person; Naik Muhammad's statement has been totally misconstrued; he is not related to Nabi Khan but to the wife of Shabrati and his daughter is married to one of the son of Shabrati, therefore, his statement does not qualify the test of Article 64 of the Qanun-e-Shahadat Order, 1984. Moreover, there is no convincing evidence on behalf of Shabrati to disprove the fact that Nawaz Khan and Shabrati are not the sons and daughter, which onus, they have positively discharged not only through the oral evidence but also on account of the rapt roznamcha, which habrati admitted in his cross-examination to have been registered on his statement and failed to prove that his statement was incorrectly recorded by the patwari and also on account of the two suits, Ex.P-6 and Ex.D-3, in which he himself has acknowledged the relationship. This documentary evidence has not only been overlooked by the Appellate Court but has also been misinterpreted, therefore, such judgment and decree cannot sustain.
In the light of above, by allowing this petition, the impugned judgment and decree of the Appellate Court is set aside, and that of the learned Trial Court is upheld with the result that the suit filed by Shabrati stands dismissed.