' TASSADUQ HUSSAIN JILLANI, J.---This appeal by leave of the Court is directed against the concurrent judgments and decrees of the Courts below vide which appellants' suit for declaration claiming to be collaterals of Sikandar Khan son of Ali Bahadur stands dismissed.
2.Facts giving rise to the instant appeal briefly stated are that appellants-plaintiffs claiming to be collaterals of Sikandar Khan (who died in 1946) sought their share of inheritance from the suit land.
Explaining the details of the nature of their relationship with Sikandar Khan it was averred in the plaint that Sikandar Khan was from the progeny of Habibullah Khan whereas Muhammad Khan and Jahandad both were from the progeny of Haji son of Abdullah, thus they had common ancestors. Assailing the entries in the revenue record, it was averred that in the settlement record of 1905 and 1906 the name of Muhammad Khan, predecessor-in-interest of the appellants was omitted inadvertently and the entire estate of his father Haider Ali was mutated in the name of Jahandad; that a suit for declaration was filed by Muhammad Khan and during pendency of that suit Jahandad died. Jahandad was issue-less, therefore, his estate to the extent of 3/4th share was inherited by the predecessor-in-interest of the plaintiff and to the extent of 1/4th share by his widow namely Mst. Channan Bibi. Later Mst. Channan Bibi accepted the parentage of Muhammad Khan the predecessor-in-interest of the plaintiff. Thus it was pleaded that it was proved in earlier litigations that Muhammad Khan and Jahandad were the real brothers and as they were from the progeny of Abdullah, therefore, they were collaterals of Sikandar Khan deceased and were entitled to inherit 3/4th share out of his estate.
3. The averments in the plaint were controverted and the case of the respondents-defendants was that the suit was barred by limitation; that the plaintiffs have no cause of action; that Sikandar Khan son of Ali Bahadur was merely an occupancy tenant; that on his death tenancy devolved upon Mst. Naiko, his widow; that the latter acquired proprietary rights after payment of price; that Sikandar died in 1946 whereas the predecessor-in-interest of appellants Muhammad Khan died in 1981; that the said Muhammad Khan during his life time and after the death of Sikandar never challenged the ownership of Mst. Naiko and that the pedigree table being relied upon by the appellants-plaintiffs was incorrect. On question of limitation, it was submitted that Muhammad Khan filed a suit against Jahandad and claimed to be his son. Jahan Dad refuted the claim and the suit was dismissed. Jahan Dad in the meanwhile died issueless and was survived by his widow Channan. It was further submitted that Mst. Naiko transferred her rights qua the suit land in favour of defendant No,1 through a registered sale deed dated 8-2-1966. The said gift was challenged by Jahandad son of Ali Haider by way of a civil suit which was dismissed as far back as, 31-7-1974.
Another suit was filed by Suba and Qalandar whereby gift deed dated 8-2-1966 was put to challenge. This suit also met the same fate. It was further submitted that the appellants-plaintiffs knew the dismissal of both the suits and despite that they did not file a civil suit in time.
4. In terms of the divergent pleas, nine issues were framed and the crucial issues on which learned trial court dismissed the suit vide judgment and decree dated 31-7-1994 are the followings:- "(1) Whether the suit is barred by time? OPD
(7) Whether the plaintiffs are collaterals of Sikandar Khan and entitled to 3/4th share in the suit property in favour of Mst. Naiko widow of Sikandar Khan and subsequent transfers between the parties are illegal, inoperative, void, mala fide and ineffective upon the rights of the plaintiffs? OPP"
5. The findings on the afore-referred two issues have been concurrently maintained by the learned court of appeal as also by the learned High Court.
6. Learned counsel for the appellants submitted that the evidence led by the appellants-plaintiffs has concurrently been non- read; that there was sufficient documentary evidence to prove that the appellants plaintiffs were collaterals of Sikandar; that Mst. Naiko widow of Sikandar could not acquire proprietary rights qua the whole of the estate of the said Sikandar; that she was entitled only to the extent of 1/4th share; that the courts below have also not appreciated the oral evidence i,e, the statement of Muhammad Ashraf (P.W. 1). He lastly submitted that the question of limitation is immaterial in cases where issues of inheritance are involved. In support of his submissions, learned counsel has relied upon GHULAM ALI AND 2 OTHERS v. MST. GHULAM SARWAR NAQVI (PLD 1990 SC 1); MAQBOOL AHMED v. GOVERNMENT OF PAKISTAN -(1991SCMR 2063); NAZIR AHMAD AND OTHERS v. ABDULLAH AND OTHERS (1997 SCMR 281); ASWAR MUHAMMAD AND OTHERS v. SHARIF DIN AND OTHERS (1983 SCMR 626); GHULAM ABBAS v. MUHAMMAD ASHRAF (1993 SCMR 2289) and MST.
RESHMAN BIBI v. AMIR AND OTHERS (2004 SCMR 392).
7. Learned counsel for the respondents-defendants on the other hand defended the impugned judgment by submitting that the appellants-plaintiffs were estopped by their own conduct; that the suit was hopelessly barred by time as the appellants-plaintiffs were aware of the estate of Sikandar having been devolved on Mst. Naiko and later having acquired proprietary rights after due payment and her having gifted the suit land in favour of Muhammad Khan son of Muhammad Akbar; that the said gift deed was challenged by Jahandad, whose collaterals the appellants- plaintiffs claimed to be; that the said suit was dismissed on 1-2-1977; that in the said suit Muhammad Ashraf, one of the appellants-plaintiffs appeared and candidly stated that he was neither related to Sikandar nor the afore-referred Mst. Naiko, however, in appeal the matter was compromised by the widow Mst. Channan which concersion cannot be a conclusive finding of fact.
He further submitted that no oral evidence of any family member was led in terms of Article 64 of Qanun-e-Shahadat Order, 1984 about the relationship of plaintiffs with Sikandar; that the documentary evidence in the form of pedigree table is of no avail to the plaintiffs as in the pedigree table of 1905 and 1906 (Exh.P-5) as also pedigree table of 1950-51 (Exh.P-6) Muhammad Khan, predecessor-in-interest of the appellants-plaintiffs is not shown as brother of Jahandad.
8. Having heard learned counsel for the parties at some length and having gone through the impugned judgment as also the evidence on record, we find that although the appellants-plaintiffs knew about the suit land having been devolved upon Mst. Naiko and her having gifted the entire suit land to Muhammad Khan son of Muhammad Akbar as also about the dismissal of suit impugning the said gift vide judgment and decree dated 1-2-1977 as also the judgment whereby the appeal of Jahandad was partly allowed vide judgment and decree dated 10-11-1979 yet they filed the civil suit as far back as 30-9-1990. On Court's query, learned counsel for the appellants- plaintiffs has not denied that one of the plaintiffs, namely, Muhammad Ashraf who appeared as P.W.1 in the current round of litigation before the trial court had also appeared in the suit impugning the gift made by Mst. Naiko and had got recorded a statement on 25-1-1967 wherein he stated that he had no relationship with either Sikandar or Mst. Naiko. We would not like to go into the question of limitation as the afore-referred conduct itself reflects that their claim of being the collaterals of Sikandar besides being a somersault remained uncorroborated by any evidence tenable in law in terms of Article 64 of the Qanun-e-Shahadat Order, 1984 which reads as follows:-- "64. Opinion on relationship when relevant: 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 a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: (emphasis supplied)
' Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Divorce Act, 1869 (IV of 1869) or in prosecutions under Section 494 or 495 of Pakistan Penal Code (Act XLV of 1860)."
9. In the absence of the evidence led in terms referred to above, the documentary evidence in the shape of pedigree table of the year 1991 (Exh.P-17) particularly in view of the fact that admittedly in earlier pedigree tables of years 1905-06 (Exh.P-5) and 1950-51 (Exh.P-6) the appellants-plaintiffs are not successors-in-interest of Sikandar Khan, the insertion of the name. Of Muhammad Khan as son of Ali Haider in the subsequent pedigree table does not inspire confidence first, because the same appears to be the result of compromise effected between Mst. Channan, widow of Jahandad and Muhammad Khan, predecessor-in-interest of the appellants-plaintiffs; secondly, in the very said suit Muhammad Ashraf, one of the plaintiffs, as stated above appeared as P. W.1 and disowned any relationship with Sikandar and Mst. Naiko whose collaterals the appellants-plaintiffs claimed to be; thirdly, Exh.P-17 remained uncorroborated by any evidence led in terms of Article 64 of the Qanun-e-Shahadat Order, 1984. This is in line with the law laid down in GHULAM MUHAMMAD AND ANOTHER v. ALLAH YAR AND OTHERS (PLD 1965 Lah 482).
10. For what has been discussed above, we do not find any merit in this appeal which is hereby dismissed. No order as to costs.