SYED SAJJAD HASSAN SHAH, J.- By way of this common judgment, I propose to dispose of the instant and another Petition No.272 of 2009, arising out of the impugned judgment.
2. A suit has been filed by Mst. Bibi Zohra and Mst. Rangila daughters of Bibi Jora against Habib Khan, Shah Wali Khan and Civil Veterinary Hospital, seeking the declaration to the effect that the respondents- plaintiffs are owners in possession of the property described in the heading of the plaint, therefore, the general power of attorney No.127 registered on 19-2-1987 and sale registered deed No.758 attested on 3-9-1992 and thereafter the mutations Nos. 7612, attested on 31-1-2000, and 7093, attested on 26-5-1991 showing the transfer of 4 kanal of land in favour of the respondent-defendant No.3, are against law, fraudulent, fake and result of the collusion, therefore, ineffective on the rights of respondents-plaintiffs, thus, liable to be cancelled, and prayed for the perpetual injunction.
3. The respondents-plaintiffs averred in their plaint that the suit property was devolved upon Mst.
Rahim Bibi as the inheritance of her father. Mehmood Khan was the son of Rahim Bibi, however his father's name was not known. After his birth, Mst. Rahim Bibi contracted marriage with Jalal Din.
From their-wedlock, Mst. Bibi Jora (mother of respondents) was born and the respondents- plaintiffs are the daughters of Mst. Zohra. Mst. Rahim Bibi, her husband and daughter Mst. Bibi Jora died and respondents-plaintiffs are the legal heirs of Bibi Jora and niece of Mehmood Khan who died on 18-6-1998, who remained unmarried and the respondents plaintiffs are his legal heirs. They further asserted that the general power of attorney dated .19-6-1987 was executed by the petitioner No.2 as general attorney of Mehmood Khan, however during the life time of Mehmood Khan i-e 1987 to 1998, the general power of attorney was kept secret, thus he was not in the knowledge of said attorney deed. On the strength of said power of attorney all the subsequent registered deeds and mutations, whereby the suit property has been alienated, are illegal and unlawful act on the part of the petitioners-defendants.
4. The suit was contested by petitioners-defendants by filing their written statements. The learned trial Court framed the issues arising out of the divergent pleadings of the parties. Another suit has also been filed by the respondent No.3. After recording evidence adduced by both the parties, the learned trial Court after hearing the arguments of the learned counsel for the parties, dismissed the suit of the respondents- plaintiffs. Being aggrieved of the judgment and decree assailed the same by filing an appeal, however the same was accepted and the suit of the respondents- plaintiffs was decreed with cost. Hence, the petitioners-defendants filed the instant petition.
5. The learned counsel for the petitioners-defendants contended that the respondents-plaintiffs have no locus standi to file the instant suit. He further contended that the respondents-plaintiffs have not succeeded to prove their relationship with the late Mehmood Khan son of Mst. Rahim Bibi, thus they are having no legal authority to prefer the claim against the petitioners-defendants in respect of the property which was the ownership of late Mehmood Khan. It is further contended that the respondents-petitioners claimed the rights with regard to the suit property without showing the relationship in between the respondents-plaintiffs and Mehmood Khan deceased. He further argued that the petitioners-defendants in order to substantiate their stance over the suit property produced entire documentary and oral evidence and succeeded to prove their rights in respect of the suit property. The learned counsel added that the respondents-plaintiffs have duly proved the execution .Of all those documents which they have challenged in the suit. He maintained that the respondents-petitioners have failed to prove by means of the requisite evidence their relationship with the deceased Mehmood Khan: In this connection, he built up his arguments by referring the provisions of Articles 46 and 64 of the Qanun-e-Shahadat Order 1984.
In this regard, he emphasized that the respondents-plaintiffs not only disclosed the name of their own father but they have also not filed any pedigree table in support of their claim. In the absence of the above stated evidence, the claim of the respondents-plaintiffs hinging upon their relationship with the deceased Mehmood Khan. Furthermore, he stressed that none of the respondents-plaintiffs either appeared before the Court in person or . Applied for appointment of local commission to record their statement so that they may be able to bring on record the important facts of the case related to their claim made in the suit.
6. As against that, the learned counsel for the respondents-defendants supported the judgment and decree passed by the learned appellate Court. He further submitted that the respondent- plaintiffs have successfully proved their relationship with Mehmood Khan deceased. He maintained that the relationship with the deceased is not proved by the petitioners-defendants. He further argued that the petitioners-defendants have not proved the power of attorney, the sale agreement and mutation as well. He finally prayed for the dismissal of instant petition and also the revision petition filed by respondent-defendant No. 3, as being time barred and not maintainable.
7. The arguments of the learned counsel for the parties considered and record of the case carefully perused with the valuable assistance of the learned counsel.
8. From perusal of the record of the case, the judgments passed by both the Courts below and the arguments advanced by the learned counsel for the parties, it appears that the onus of proof heavily lies on the shoulder of the respondents-plaintiffs that the suit property was the ownership of Mst. Rahim Bibi and after her death it was inherited by Mst. Bibi Jora and present respondents- plaintiffs became the owners after her death being her legal heirs and they are the daughters of the sister of deceased Mehmood Khan who died on 18-6-1996 as such they are the sole legal heirs of deceased Mehmood Khan. In this regard, the entire evidence carefully examined but it appears that the respondents-plaintiffs have badly failed to bring on record the legal evidence to prove their relationship. If at all the respondents-plaintiffs were the daughters of the sister of Mehmood Khan, it was not difficult to prove the relationship, since their forefathers and till the last member of their family by producing the pedigree table maintained in the revenue record. But neither have they produced the pedigree table from the revenue record nor the self prepared pedigree table since their forefathers till the last member of their family, to prove that right of inheritance from their piopositus devolved upon them. Inasmuch as they have not examined any member of their family who might be in the knowledge of the true pedigree table of their ascendants as provided by provisions contained in Article 64 of Qanun-e-Shahadat Order. According to which when the Court has to form an opinion as to she relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise has special means of knowledge on the subject. The illustration (b) of the Article ibid denotes, "the question is whether A was the legitimate son of B. The fact that A was always treated as such by members of the family is relevant." On a question of pedigree, family conduct is admissible to prove relationship and in this connection the treatment of friends and neighbours may, be received as presumptive proof of marriage. In this regard, the opinion of the family members regarding relationship rather can be inferred from the family conduct. It can be exemplified by distribution of family property and tacit acknowledgment of relations. In short, the spirit of Article 64 is quite apparent and vivid that the Court can form an opinion as to the relationship of one person to another because of the reason that it is the opinion expressed (by conduct) as to the existence of that relationship with any person of the member of the family or those who have the special means of knowledge regarding the relationship of the parties, is a relevant fact. The dictum laid down in PLD 1986 Pesh. 142 is that "the question of ownership of property belonged to the deceased. The respondents claimed to be sons of deceased failed to produce best evidence on question of establishment of relationship between the deceased and themselves. The respondents although were present in Pakistan during trial but none of them appeared to depose about marriage of their mother with the deceased, means of livelihood and place of residence of their father, actual date of his death and about birth of children. Evidence produced by them miserably lacked essential requirements of Article 64, Qanun-e-Shahadat Order, 1984 as none of the witnesses had direct or indirect knowledge about marriage of the deceased with their mother and birth of children. Even widow of the deceased did not appear at the trial to acknowledge her marriage with the deceased or to admit birth of children as a result of wedlock. Respondents also failed to produce Nikahnama about factum of marriage of their mother with the deceased. No document or identity cards to establish the parentage was produced by the respondents. The claim of the respondents qua ownership of property by inheritance was not proved in circumstances."
From the above observations, it is discernible that this Article requires that the person claiming the relationships with the deceased must appear in person and to prove his treatment towards the claimant and the opinion of the members of family and his friends towards the person claiming inheritance from the deceased. In absence of such proof, neither opinion can be formed by the Court nor did the absence of proof justify the decree in favour of such claimant.
9. The law envisaged under Article 46 of Qanun-e-Shahadat Order, 1984 is also of worth mentioning because in order to save the valuable right of a person devolving from his deceased relative is protected under sub-Articles 5 & 6. Whereunder, it is expressly laid down that the statement if relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised in the matter stated above and made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.
10. In the aforestated provisions of law it is mandated that the statement is admissible when made in respect of pedigree, death, family history not known by all but few which is incapable of direct proof and person making the statement having the peculiar means of knowledge and having no interest to misrepresent of declarants, members of the family having the greatest interest in seeking the best opportunities of obtaining and no motive for falsifying information on such subjects. In view of above, the distinction between sub-Articles 5 & 6 is that the former relates to the existence of relationship between the persons alive or deceased whereas the latter applies to the declarations of relationship between the deceased persons only. Moreover, the former requires special means of knowledge but the latter does not expressly impose any such restrictions.
Besides, according to the former, the declaration may be written or verbal and made on any occasion meaning thereby that ante Litem motam but latter requires not only that the statement should be a written one but also that it should be contained in some document. The necessary corollary of both the provisions contained in sub-Articles 5 & 6 is that the statement should have been made before arising any controversy as to the relationship sought to be proved by the statement arose.
11. In the instant case, the impugned documents were attested prior to the controversy involved herein. There is no likelihood of any misstatement or manipulation and maneuvering the story on behalf of the petitioners-defendants. The respondents-plaintiffs have not furnished the testimony to establish their relationship with deceased Mehmood Khan. The non-appearance of either of the plaintiffs also speaks volumes. It is settled principle of law that a party has to prove its own case on the basis of its own evidence and not to get any benefit of the weaknesses of the opposite party. In this regard, reliance placed on the case titled Mst. Safia. v. Bibi and 14 others (2005 M LD 646) wherein it has been observed that:-- "When the party has failed to furnish any plausible and convincing evidence in accordance with the requirements of Article 64 of the Qanun-e-Shahadat Order, 1984 or corresponding section 50 of the Evidence Act, to prove the contents of the Pedigree table, there must be special means of knowledge and in case, the statement of witness produced by the plaintiff to prove the relationship, did not fulfil the mandatory requirement mentioned in Art. 64 of the Qanun-e- Shahadat Order, 1984. It was further observed that it is also admitted that the petitioner did not appear herself in the witness box; therefore, both the Courts below were justified to take adverse inference against the petitioner which is in consonance of the law laid down by the honourable Supreme Court in the following judgments. (Shah Nawaz's case PLD 1976 SC 767, "Sughran Bibi's case 1996 SCMR 137 and Abdul Ahad's case PLD 1979 SC 890."
12. The crux of the above discussion is that it is the plaintiffs-respondents who had to prove their case at first instance, then the same F is to be rebutted by the petitioners-defendants. Now turning to the documentary evidence brought on record by the petitioners-defendants about the execution of general power attorney, which was registered on 19-2-1987 and thereafter the said transaction was effected through registered deed and sale mutations. It is worthwhile to say that these documents were executed in the life time of late Mehmood Khan, who had never questioned or objected the same, which connotes that he was party to the transaction and was satisfied, thus, has not challenged at any time, whereas he died in the year 1996. Even otherwise, those documents have been brought on record in the evidence of the respondents-plaintiffs. They have exhibited the same. No objection whatsoever has been raised by them at any stage of proceedings conducted by the learned trial Court. The power of attorney blessed with the presumption of truth by the provision contained in Article 95 of the Qanun-e-Shahadat Order, 1984, the presumption so attached has not been dislodged by the respondents-plaintiffs. The principle about the discharge of burden of proof is that a party approaching the Court of law for grant of relief is to discharge its own burden and has to stand on its own legs to succeed and no benefit of any weakness in the case of opposite party can be availed by him as observed by the august Supreme Court in the case titled Sultan Muhammad and another v.. Muhammad Qasim and others (2010 SCMR 2030).
13. As far as the registered deed is concerned, the same is also brought on record in the evidence of the respondents-plaintiffs, thus, admitted the same in all respects. Even otherwise, the registered deed is also enjoying the presumption of correctness as enunciated in section 60 of the Registration Act, 1908, though rebuttable but there is nothing on the file to show that late Mehmood Khan's signature or thumb impression was forged. The mere ipse dixit of attorney of the respondents- plaintiffs is not sufficient to establish either their relationship with late Mehmood Khan or their own identity could be proved by his testimony, for the reason that they have not mentioned their parentage on the record.
14. The only document which has been relied upon by the learned counsel for the respondents- plaintiffs is `Fard-e-Badar' , however, neither the original has been brought on record nor the same has duly been proved nor its notice has been given to the petitioners-defendants which was the legal requirement because the petitioners- defendants have purchased the property through the execution of valid deeds. He was the lawful owner of the suit property notwithstanding that the entries made in the revenue record cannot be altered by means of attestation of Fard-eBadar' , when the original owner of the suit land in his life time had made the alienation of his ownership and had never challenged those transactions. However, after his death, the respondents- plaintiffs can neither challenge nor prefer any claim with regard to the suit property, being heirs of late Mehmood Khan, because they have not brought any evidence to substantiate their ownership rights or relationship. In addition to that, they have also failed to prove their own parentage. After purchase of property, respondent No.3 has constructed Hospital for Animal Husbandry on the suit land but despite the fact that late Mehmood Khan was alive and it was in his notice that on his property the construction was being raised. Had he been the owner of the property, he might have restrained them from making any interference in his property much less to raise a building. It is evident from the material available on the record that the suit property is in the possession of the petitioners-defendants. The respondents-plaintiffs have no concern whatsoever with the same.
15. The learned Additional District Judge while deciding the appeal has failed to consider the above mentioned pivotal aspects of the case which is of great significance and value. He while accepting the appeal set aside the judgment and decree passed by the learned trial Court without referring any solid and reliable material, however, his findings are the outcome of the material showing the hyper technicalities and mere surmises and conjectures, which is not permissible under the law.
Thus has committed the miscarriage of justice. Even on the preponderance of evidence at the touchstone of principle laid down in Articles 79, 117 and 118 of Qanun-e-Shahadat Order, 1984, the findings of the learned appellate Court cannot be survived by any stretch of imagination.
16. For the reasons mentioned above, both the revision petitions are accepted, the impugned judgment and decree of the learned appellate Court is set-aside and that of the learned trial Court is maintained.