' MIAN SAQIB NISAR, J.---The dispute between the parties relates to the legal heirship of one Rajada; the petitioners filed a suit for the declaration; challenging that Liaqat Ali alias Fayyaz and Javed Ahmed since dead, whose LRs, have been impleaded as defendants Nos.2 to 4, were not the sons of Rajada, thus not entitled to inherit his estate; anyhow, during the pendency of the suit, the mutation of inheritance of Rajada was attested inter alia in the name of above mentioned two as well, therefore, an amendment in the plaint was sought, challenging the said mutation as well. The suit was contested by the defendants; issues were framed; parties were put to trial and the learned Civil Judge, vide judgment and decree dated 21-10-1992, has dismissed the suit, holding that Fayyaz and Javed, were the sons of Rajada and therefore, are entitled to inherit his estate and the mutation in question, was rightly sanctioned; the appeal of the petitioners has failed on 28-4-1994.
2. With some more details the facts of the case are, that one Raja son of Bahadar Ali died on 21-6- 1988; at the time of his death, admittedly Mst. Walayat Bibi and Mst. Hakam Bibi, his two widows were alive; besides, he was survived by Riaz Ali, Muhammad Nawaz, Ijaz (sons), Mst. Nazrah Parveen and Rukhsana Bibi, the daughters, born out of his wedlock with Mst. Wallayat Bibi. Liaqat Ali alias Fayyaz and the legal heirs of Muhammad Javed, claimed that they are also the sons of Rajada.
Confronted with the above, the petitioners filed the present suit, when the mutation as mentioned above, was sanctioned inter alia, in favour of Liaqat Ali alias Fayyaz and Javed; this was thus further impugned by the plaintiff after seeking the amendment in their plaint. The respondents set out the defence that the two above named are the sons of Rajada, from his marriage with one Mst. Anayat Bibi, the real sister of Mst. Walayat Bibi. On account of the pleadings of the parties, the learned trial Court was pleased to frame the following important issues:--
7. Whether the plaintiffs are only legal heirs of deceased and the defendants have no right to interfere in the property left by Rajada deceased? OPP 7-A Whether the name of Fayyaz Ahmed has been incorrectly written in the plaint as Liaqat Ali, if so its effect? OPD 7-B Whether Mutation No,1171 dated 31-12-1990 is illegal, void, without authority, against Shariat and based on mala fide intention, if so, its effect? OPP ' After considering the evidence on the record, the learned trial Court on Issue No,7, which is the main proposition of the case, has come to the conclusion that Fayyaz and Javed, are proved to be the sons of Rajada from Mst. Anayat Bibi; this finding has been affirmed by the learned appellate Court. Hence this petition.
3. Syed Muhammad Kaleem Ahmed Khurshid, learned counsel for the petitioners, has argued that both the Courts below have misread the evidence on record, in reaching to the conclusion that Fayyaz and Javed, are the sons of Rajada, whereas, on account of not only oral evidence but also substantial documentary evidence, it stood proved that they were the sons of Fateh Muhammad from Mst. Anayat Bibi and not Rajada. It is also submitted that in their suit, the petitioners categorically have mentioned that the Anayat Bibi, was never married to Rajada and it was the duty of the respondents to prove this fact by some positive evidence but they have miserably failed in this behalf. Both the Courts below have relied upon Exh.D.1, Iqrarnama, in which Fayyaz and Javed are allegedly acknowledged by Rajada as his sons, but this document has not been proved in accordance with law; not only that the scribe of the document has not been examined, but also the other marginal witness was not produced and the statement of Noor Muhammad is not enough to establish that the document was so executed by Rajada. Moreover, there was no occasion for Rajada to have executed this document. He has also highlighted from other oral as also documentary evidence to show that the above two named gentlemen are not the sons of Rajada.
4. On the other hand, learned counsel for the respondents has argued that from the evidence of the respondents, particularly Iqrarnama Exh.D.1 and also Nikahnamas of Fayyaz and Javed, in which, they were shown to be the sons of Rajada, it is established that he was their father.
5. I have heard learned counsel for the parties and would like to state the fundamentals, which must be kept in view for the purpose of determining the relationship of one man to another, if it is in dispute. Article 64 of the Qanun-eShahadat Order, in this behalf is the relevant provision, which provides that "When the Court has to form an opinion, as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship of any person who, as to member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact". In the instant case, P.W.1 Fazal Elahi admittedly is the brother of Mst. Wallayat Bibi, (one of the plaintiffs) and Mst. Anayat Bibi; he categorically stated that Liaqat alias Fayyaz and Javed are not the sons of Rajada, but were born to Mst. Anayat Bibi, from her wedlock with Fateh Muhammad; he has also stated that Rajada had only married Mst. Hakim Bibi and Mst. Wallayat Bibi and never had the third wife, rather in the cross, the witness was suggested that the first marriage of Rajada was with Anayat Bibi and secondly he married Mst. Hakim Bibi. P.W.2 Muhammad Boota, again is the real maternal uncle of Mst. Anayat and Mst. Wallayat and has stated that Anayat Bibi was never married to Rajada; he was specifically suggested that Anayat Bibi got married to Rajada after getting the Talaq from Fateh Muhammad. P.W.3 Muhammad Abdullah is the husband of Rajada's sister; he too has deposed that Anayat Bibi was not married to Rajada and same suggestion that she was married to the latter after getting Talaq from Fateh Muhammad, was given to him. P.W.4, Taj Din, is the maternal uncle of Hakim Bibi and has deposed in line with the case of the plaintiffs. All these persons are the close relatives of the family and have stated that Anayat Bibi was not married to Rajada and that Liaqat alias Fayyaz and Javed, are not the sons from Rajada, rather from her earlier marriage with Fateh Muhammad; no effective cross- examination has been conducted upon the P.Ws. P.W.5 Mst. Wallayat, is the sister of Anayat Bibi and has categorically denied the marriage of Anayat Bibi with Rajada and her statement too has not been shattered in the cross-examination. Besides, the plaintiffs produced on the record a very important document, which is the permission procured by Rajada for his second marriage; this document is Exh.P.2, is the order dated 6-9-1963, of the Union Council Jandiala Sher Khan, granting permission to Rajada for his second marriage, primarily on the ground and the reason, as he was not earlier blessed with a male issue. It is specifically mentioned in, the Exh.P.2:-- {{URDU TEXT}} ' The first wife of Rajada referred to in the document admittedly is Mst. Hakim Bibi. Exh.P.2, is the part of the official record, and has not been rebutted and controverted by the respondents. Besides, the death certificate of Mst. Anayat Bibi dated 17-6-1963 Exh.P.3, clearly indicates that she was shown to be the wife of Fateh Muhammad. Though, an attempt was subsequently made by the respondents to get the entry changed and they also succeeded at the level of the DC, but in view of the order passed by the Commissioner, the matter was left open for the determination by the civil Court in this matter, however, the respondents through any convincing evidence failed to prove the marriage of Rajada with Anayat Bibi. Admittedly, Fateh Muhammad has died after her, and obviously, if her marriage with Rajada was intact, why would the name of her marriage with Rajada was intact, why would the name of her former husband be written with whom her marriage was terminated. It is not the case of the respondents that the original entry of Anayat Bibi's death is the result of any manipulation by the petitioners.
6. As regards the Iqrarnama Exh.D.1, dated 19-3-1983, is concerned, the two Courts have given to this document more importance than due, I agree with the learned counsel for the petitioners that the document has not been proved by the respondents in accordance with law, who keeping in view the rules of probability have not been able to show as to why and under what circumstances, Rajada had executed the Iqrarnama; the scribe of the document has not been produced; the other marginal witness has not been examined; the statement of Noor Muhammad by itself not only is sketchy but is also inadequate to prove the execution of Exh.D.1. Even otherwise, according to this Iqrarnama, Mst. Azhara Parveen is also shown to be the daughter of Rajada but this is factually incorrect, because Gulshan Ara who admittedly is the daughter of Fateh Muhammad and Mst.
Anayat Bibi, when appeared as D.W.3, in her statement, has clearly admitted that Mst. Azhara Parveen is the daughter of Fateh Muhammad. This makes the document and its contents highly doubtful. Moreover, the two Courts below have misinterpreted the statement of P.W.4 in holding that he ever admitted that Fayyaz and Javed, are the sons of Anayat Bibi from Rajada, rather his statement when taken into full and proper context, it is clear that he was denying the suggestion in this regard.
7. There is another important fact of the case that the Courts below have also not taken into account Exh.P.4, which, according to the respondents, is the birth certificate of Fayyaz, wherein, the entry of his birth is dated 5-1-1959 but according to his passport, Exh.D.16, he is stated to have born in 1955; this is vital discrepancy, which has not been explained by the respondents side.
' As against the above evidence, the respondents have not produced any close relatives of the family or the persons having special means, who could state that Fayyaz and Javed were the sons of Anayat Bibi and Rajada; not only that there is no proof on the record by respondents' side that Rajada ever married Anayat Bibi. This was one of the key propositions of the case and after the evidence of the petitioners, the burden had shifted to the respondents to prove the same, but in my considered view, they failed in this behalf and had no positive evidence to establish the marriage.
Thus on the basis of oral as well as documentary evidence, discussed above, which has not been considered by the Courts below in its proper perspective, I find that the judgments and decrees of the two Courts below are the result of sheer misreading and non-reading of the evidence, thus the same cannot sustain, which are hereby set aside, with the result that the suit filed by the petitioners against the respondents is allowed in terms prayed for and the mutation in dispute is thus set aside.