AMIN-UD-DIN KHAN, J.-Through this Civil revision the petitioners have challenged the judgment and decree dated 6.9.2000 passed by the learned Additional District Judge, Khanpur whereby appeal filed by the respondents was allowed and the judgment and decree passed by the learned Civil Judge dated 4.12.1996 decreeing the suit of the plaintiffs/petitioners was set-aside.
2. Brief facts of the case are that Mst. Aziz Mai filed a suit for declaration against Abdul Ghafoor and others on 31.3.1990 stating therein that the land prescribed in the plaint was left behind by Elahi Bux who was father of the plaintiff and she is entitled to get 1/5 share out of the land, It was further alleged that mutation No. 308 dated 10.8.1909 of Mauza Khanpur and Mutation No. 372 dated 20.3.1909 of Mauza Shah Muhammad Maharal Tehsil Khanpur are illegal and ineffective upon the rights of the plaintiff, It was contended that Mst. Aziz Mai is real daughter of Elahi Bux deceased and she has been deprived from inheritance and she was told that mutation has been sanctioned in her favour and she was in joint possession with her co-sharers.
3. The suit was contested by the defendants, who raised preliminary objections including the objection as to the limitation. The most important contention, of the defendants in their written statement was that Mst. Aziz Mai is not daughter of Elahi Bux. The learned Trial Court proceeded to frame the issues and the parties were invited to produce their respective evidence. The learned Trial Court decreed the suit in favour of the plaintiff/petitioners. The defendants/respondents filed appeal which was allowed, hence this Civil revision.
4. Learned counsel for the petitioners submits that the learned Trial Court passed the judgment and decree while considering every piece of evidence produced by the parties orally as well as documentary and rightly decided issues keeping in mind the legal position of the case, whereas first appellate Court on the wrong assumption of facts and law reversed the findings mainly recorded on issue No.7 and set-aside judgment passed by the learned Trial Court.
5. On the other hand, learned counsel for the respondents except respondent No.10 has contended that the judgment and decree passed by the first appellate Court are in accordance with the law and facts of the case and there is no justification to interfere in the findings of the impugned judgment.
6. I have heard the arguments of the learned counsel for the parties and have perused the record.
7. As the case- relates to the matter of inheritance and that too by an illiterate Pardanasheen lady, who is residing in a village, In such like matters the Courts cannot afford technicalities. All roots of pleadings and quantum of evidence to prove the fact which is required in ordinary cases, that stander cannot be implemented in the suit for recovery of immovable property on the basis of claim of a lady based on inheritance, In these matters the Courts have to give due importance to the circumstances which lead, to withdraw inferences in favour of the plaintiff/Pardanasheen illiterate lady. The fact that respondent No.10 who was also a defendant in the suit got recorded his statement before this Court on 13.12.2010 and also filed C.M. No. 1213/2004 and a written compromise Mark-A, wherein he accepted the claim of the plaintiff. This is also a very strong piece of evidence to be considered in favour of the petitioners. Further I have noticed that the defence of the defendants is very astonishing. They have slipped from their previous defence on every further step, In written statement they have totally denied from relationship with Mst. Zohra Mai and Mst.
Aziz Mai, whereas DW.1 admitted that Mst. Zohra Mai was second wife of Elahi Bux the propositus.
DW.3 Abdul Ghafoor one of the defendants when appeared in the witness box, he admitted the marriage of his predecessor Elahi Bux with Mst. Zohra Mai but took stand that Mst. Aziz Mai was the daughter of Mst. Zohra Mai from her previous husband. This was clear cut admission of one of the defendants. The learned appellate Court at page 6 of the judgment calculated the age of Mst. Aziz Mai from a very noval and strange manner. He has tried to show that Mst. Aziz Mai was born after death of Elahi Bux propositus, whereas DW.3 at least admits that Mst. Aziz Mai was alive at the time of death of Elahi Bux. Even his case is that Mst. Aziz Mai was the daughter of Mst. Zohra Mai from her previous husband. The defendants denied the relationship of Mst. Aziz Mai and in another place they have tried to prove this case on the premises that their family was governed by customs and therefore only the male members were entitled to inheritance and females are not entitled to inheritance. This stand also negates the version put forth by the defendants. I have noticed that the learned first appellate Court has not given the reason while setting aside the well reasoned findings of the learned Trial Court on issue No.7. On the point of limitation and filing of suit the light can be taken from the judgment reported as Mst. Janntan and others vs Mst. Taggi through L.Rs and others (PLD 2006 SC 322). The plea which has not been taken by the defendants, no evidence can be led on that plea. Reliance can be safely placed on Bin yameen and 3 others vs Ch. Hakim and another (1996 SCM R 336). In declaratory suit every fresh attack gives the plaintiff fresh cause of action for purposes of limitation. This is held by this Court in case in Shamas-ud-Din vs Mst.
Jewan and others (PLD 1985 Lahore 10. PW1 and PW.2 are closely related to the parties. Therefore under article 64 Qanoon-e-Shahdat their statements are very important. Reliance can be placed on Imam Ali Shah and 3 others v. Mst Kubra 8/5/ (2006 YLR 1657) and Mst. Baigan etc vs Muhammad Anwar etc (NLR 1993 AC (Civil)213).
In the light of what has been discussed above, this Civil revision is allowed. The judgment of the learned first appellate Court is set-aside and the judgment of the Trial Court is restored.