' JAWWAD S. KHAWAJA, J.--- Muhammad Ali, petitioner/plaintiff impugns the concurrent decrees of the learned trial Court dated 8-12-2004 and of the learned Appellate Court dated 20-2-2006, whereby a declaratory suit filed by him has been dismissed.
2. The dispute between the petitioner and Ahmad Yar respondent/defendant relates to a residential Ihata. The Ihata, admittedly, was owned by Allah Bukhsh, father of the petitioner. The defence, set up by the respondent/defendant, was that Allah Bukhsh had two wives, one Mst. Zohra, who was the mother of the petitioner, and the other was Mst. Lalan, who the respondent claimed to be his Phuphi. The petitioner acknowledged that Lalan was married to Allah Bukhsh, but asserted that, vide talacinama dated 29-7-1965, Lalan had been divorced and, therefore, she had no right in the disputed Ihata. The respondent's claimed is that Lalan was a widow of Allah Bukhsh and was entitled to 1/16th share in the disputed Ihata, which devolved on him as the sole legal heir of Mst.
Lalan.
3. Originally, the suit of the petitioner was dismissed on 12-12-2002. However, on appeal, the learned appellate Court framed two additional issues Nos.3-A and 3-B and remanded the case to the trial Court. These issues were framed in the following terms:-- "3-A. Whether Allah Bakhsh father of the plaintiff had divorced Lalan Bibi in the year 1965. Hence she was not entitled to get share as widow of the deceased Allah Bakhsh father of the plaintiff? OPP.
3-B Whether the Mutation No,467 dated 16-2-1998 which was attested in favour of Mst. Lalan Bibi as legal heir (widow of the deceased Allah Bakhsh) father of the plaintiff is result of fraud? OPP."
4. The parties led evidence on the above issues. The petitioner appeared as his sole witness. He, however, brought on record a photo copy of the Talaqnama (Exh.P.1), acknowledgement due receipt (Exh.P.2) as' proof of the fact that the talaqnama was sent to the Chairman, Union Council and a copy of the decision of the Arbitration Council (Exh.P.3) certified by the Secretary of the Union Council. This document records that the reconciliation proceedings between Allah Bakhsh and Mst.
Lalan Bibi had failed.
5. The respondent appeared as his own witness and also produced one Niamat Ali as D.W.2. They deposed that Lalan. Bibi remained the wife of Allah Bakhsh until his death in 1994. He also relied on Mutation No,467 (Exh.P.5) sanctioned on 16-2-1998 in respect of the inheritance of Allah Bakhsh showing Mst. Lalan Bibi his widow.
6. Learned counsel contends that the documents (Exhs.P.1, P.2 and P.3) establish the fact that Lalan Bibi had been divorced by Allah Bakhsh. The learned trial Court has disregarded Exh.P.1 on the score that it is a copy and the original, without explanation, has not been produced on record. As to Exh.P.2, it is argued the learned trial Court 4.As misread the document. The learned trial Court has observed that this document relates to some correspondence addressed by the Chairman of the Union Council to Mst. Lalan Bibi. I note that this is not the case. Exh.P.2 is an acknowledgment due receipt relating to correspondence addressed by Allah Bakhsh to the Chairman, Union Council. On the document itself, there is a noting to the effect that it relates to a talaqnama to Mst. Lalan Bibi.
The name of the sender is clearly noted as Allah Bakhsh. The document also bears the signatures of Nazir Ahmad dated 6-8-1965 as the recipient of the registered letter. It does appear that the learned trial Court has misread Exh.P.2.
7. As to Exh.P.3, the learned trial Court has not relied on the same because the Secretary of the Union Council, namely, Munawar Hussain, who purportedly prepared and issued the said document, was not produced as a witness.
8. Learned counsel contends that even if Exhs.P.1 and P.3 are disregarded, the document (Exh.P.2) was sufficient to prove that Mst. Lalan had been divorced by Allah Bakhsh.
9. Learned counsel for the respondent was unable to controvert the above arguments advanced on behalf of the petitioner. He defended the observations of the learned trial Court that Exh.P.2 related to correspondence addressed by the Chairman of the Union Council to Mst. Lalan Bibi. This, however, is not the case as discussed in paragraph 6 above.
10. The evidence led by the two parties has to be weighed in order to determine the party which must succeed on the basis of preponderance of evidence. On this measure, the petitioner must succeed because Exh.p.2 clearly shows that a talaqnama in relation to Mst. Lalan was sent to the Chairman Union, Council through registered cover acknowledgment due and the same had been received by the Chairman, Nazir Ahmad whose signatures appear on the A.D. Receipt (Exh.P.2).
11. On the above basis, I am clear that the learned Courts below have fallen in error on account of misreading of Exh.P.2. The impugned decrees are, therefore, not legally sustainable and are set aside. As a result, the suit filed by the petitioner/ plaintiff is decreed as prayed for.