MUHAMMAD AMEER BHATTI, J. --- I propose to decide two identical C.Rs. 51/2002 and 52/2002 through a single judgment involving the same question of law and acts.
2. The brief facts of the case are that one Mauladad who died on 15.05.1971 was owner in possession of a land measuring 1715 Kanals, 6 Marlas. This land was mutated after his death vide inheritance Mutation No. 6546 in favour of respondents Nos. 1 to 3. The present petition filed a suit for declaration, whereby he claimed that he being the son of said Mauladad was entitled to inherit the land in dispute alongwith his mother and grandmother. Further sought the declaration that the mutation in dispute sanctioned in favour of respondent Nos. 1 to 3 is against law and facts, based on fraud and inoperative against the rights of the petitioner. The petitioner sought decree for perpetual injunction that respondents Nos. 1 to 3 be permanently restrained from interfering in the possession of the petitioner over the suit land. It was also averred in the suit that at the time of passing of the disputed mutation, the petitioner was an innocent child as he was born on 26.09.1971.
3. The respondents Nos. 1 to 3 also filed a suit against the petitioner and performa respondents Nos.4 and 5, wherein they averred that they being legal heirs of Mauladad deceased were owners- in-possession of the suit land, hence the petitioner and performa respondents have no concern whatsoever with the land and challenge the Mutation No. 369, dated 28.09.1973 and Mutation No. 23, dated 04.12.1980, according to which the present petitioner and respondents Nos.4 and 5 had been shown as legal heirs of Mauladad deceased, are totally illegal contrary to the facts and liable to be set aside. Further averred in the plaint that the subsequent Mutation No. 95, dated 27.06.1993 and the order of the Collector, Mianwali dated 24.10.1993, who had refused to set aside the above- said mortgaged mutation is illegal contrary to the facts and liable to be set aside. In this suit the claim of the respondents Nos. 1 to 3 was that respondents No. 4 Mst. Bakhto Bano (mother of the petitioner) was divorced by Mauladad on 10.02.1968 and issued the divorce notice to the union council, which was received and got entered in the register of Union Council on 21.02.1968. It was also averred in the plaint that after the expiry of 90 days, the "Talaq" had become effective. It was further averred in the plaint that the effect of the "Talaq" had been admitted by respondent No. 4 (mother of the present petitioner) in a suit filed by the deceased Mauladad for conjugal rights. The petitioner was born on 26.09.1971, hence the petitioner could not claim the legitimacy from Mauladad, as such he was not entitled to get the inheritance from Mauladad, hence the mutations impugned in the suit had been sanctioned illegally without lawful authority and having no legal effect.
4. In both the suits the written statement were filed by the parties respectively and the suits were consolidated. The consolidated issues had been framed from the, divergent pleadings of the parties and parties were allowed to lead their evidence according to their onus on issues. Learned Trial Court vide his judgment dated 01.12.2002 decreed the suit of the petitioner and dismissed the suit of respondents Nos. 1 to 3.
5. Respondents Nos. 1 to 3 preferred an appeal against the judgment and decree dated 01.12.2000 by reversing the findings of the learned Trial Court on issues Nos. 1 and 7 to 9 accepted the appeal of respondents Nos. 1 to 3. Consequently, the suit of the present petitioner was dismissed and the suit of respondents Nos. 1 to 3 was decreed, hence this revision petition.
6. I have heard the learned counsel for the parties and also gone through the record of these cases with their assistance.
7. The main stress of the learned counsel for the respondents is that the petitioner was not the son of Mauladad, as Mauladad had already divorced his wife (mother of the petitioner) Mst. Bano and to this effect notice was also delivered to the Union Council and after the effectiveness of this Talaq, the petitioner was born on 26.09.1971. To prove this fact, the respondents Nos. 1 to 3 produced in their evidence. Ex.D.9, the suit filed by Muladad against Bakht Bano respondent (suit for conjugal rights), Ex.D.10 the withdrawal order passed by the learned Civil Judge, Ex.D.8 copy of the statement recorded in the said suit. On the basis of these documents, the learned counsel for the respondents states that the reply filed in the suit for conjugal rights by the respondent No. 4 (the mother of the petitioner Mst. Bakht Bano), where she admitted the she had already been divorced by Mauladad on 21.02.1968, hence the suit for conjugal rights filed by Mauladad is not maintainable and she was not bound to re-join him in the presence of divorce. For the matter, it was claimed by the learned counsel for respondents Nos. 1 to 3 that she produced the Secretary Union Council who appeared as witness, hence the finding of the learned first Appellate Court is in accordance with law and the available evidence on the record as no illegality or irregularity has been committed by the learned first Appellate Court while reversing the finding of the learned Trial Court.
8. I have noticed these documents and those have been demonstrated with the assistance of the learned counsel for the parties and found that in the suit Mauladad admitted the existence of marriage with Mst. Bakht Bano and this suit was filed on 15.10.1969. If this document is considered as true document, which speaks that at the filing of this plaint, Mauladad admitted the existence of the marriage, so the whole story concocted by the respondents by filing the written reply in response to this plaint on behalf of Mst. Bakht Bano and produced the Secretary Union Council for his testimony, falsified the stand of the respondents that the Talaq had already been effected on 21.02.1968. Except these documents which have not been admitted by respondent No. 4, in his testimony who appeared as DW.3 and categorically denied about the filing of any suit of conjugal rights by Mauladad and in this respect the written statement filed by her and production of any evidence on this behalf. In the presence of the categorical denial about the Talaq as alleged by the respondents Nos. 1 to 3 and admission of respondent No. 4, mother of the petitioner that she remained wife of Mauladad till his death-and the petitioner was born from their wedlock is sufficient to hold that the petitioner is legitimate son of Mauladad and entitled to inherit the land in dispute alongwith his mother Mst. Bakht Bano and his grandmother Mst. Rano. It is also claimed by the respondents that the petitioner was born after the death of Mauladad. Since it is settled law that any child born within six lunar months from the death of the father having the legitimate claim of the paternity, hence the arguments having no force.
9. In this view of the matter, the judgment passed by the learned first Appellate Court on the face of it seems to be based on misreading and non-reading of evidence and by relying on documents having no authenticity, the well-reasoned finding of the learned Trial Court has been reversed. As such, the finding of the learned first Appellate Court is set aside and the judgment and decree of learned Trial Court is restored in both the suits. The not result of the acceptance of these revision petitions are that the suit of the petitioner is decreed and the suit of the respondents stands dismissed. No order as to costs.
Civil revision .