AMIN-UD-DIN KHAN, J. --- Through this civil revision, the petitioners-defendants have challenged the judgment and decree dated 10.09.1999 passed by the Addl. District Judge, Rahim Yar Khan, by way of which, while accepting the appeal filed by the respondents-plaintiffs judgment and decree dated 18.03.1996 passed by the Civil Judge, Rahim Yar Khan, dismissing the suit, were set aside.
2. Briefly, facts as leading to this civil revision were are that plaintiffs (respondents Nos. 1 to 3) filed a suit for declaration on 29.04.1991 challenging therein Mutations Nos. 195 and 196 Mouza Dera Shams attested on 05.04.1988. They claimed that they and respondent No. 4 are entitled to inherit Mst.
Sharifan and Mst. Ramzan Bibi being their legal heirs.
The defendants appeared and filed written statement. Out of the divergent pleadings of the parties, learned Trial Court framed issues and invited the parties to produce their respective evidence. Both the parties adduced their oral as well as documentary evidence in support of their versions. After the close of trial, vide judgment and decree dated 18.03.1996 suit was dismissed by the Trial Court. Feeling aggrieved by the said decree, an appeal was preferred before the first Appellate Court by the plaintiffs, which was accepted on 10.09.1999. Hence, this civil revision.
3. Learned counsel for the petitioners states that mutations Nos. 195 and 196 were entered on 15.09.1985, whereas it were decided on 05.04.1988 and in this way it remained under inquiry for more than 2 years and after comprehensive inquiry these mutations were attested; that the pedigree-table was established by the petitioners-defendants before the revenue officers and also was proved; that after the decision of impugned mutations on 05.04.1988 suit was filed after a considerable period of three years which goes against the respondents-plaintiffs. Further states that the Trial Court wrongly exhibited the documentary evidence produced by the respondent- plaintiffs in shape of Ex.P-1 to Ex.P-4 which were absolutely inadmissible in evidence and also wrongly relied upon these documents and the Court was bound to de-exhibit and return the same to the plaintiffs. It has been further contended that the documentary evidence produced by the plaintiffs is sufficient to negate their claim that their father A.I Bakhsh was alias Wali Muhammad; that the alleged Special Attorney of plaintiffs, namely, Abdul Majeed remained in the field and none of the plaintiffs appeared before the Trial Court and no statement of any of the plaintiffs was got recorded before the Trial Court as their own witness, which fact also goes against the plaintiffs.
Learned counsel further states that the first Appellate Court has prepared a wrong pedigree-table in its judgment, therefore, reached to a wrong conclusion, so fell in error while ignoring the legal point that plaintiffs were bound to prove their case on the strength of their evidence and the first Appellate Court also ignored this fact. It has been contended that Ex.D-1 the application moved by the plaintiffs before the revenue hierarchy also negates their version which has been put forth before the Civil Court.
4. On the other hand, learned counsel for the respondents- plaintiffs stated that the plaintiffs are legal heirs of deceased ladies and they have rightly filed suit as their version was not acceded to by the revenue hierarchy at the time of mutations of inheritance of said ladies, Mst. Sharifan and Mst. Ramzan Bibi. Further states that the judgment and decree passed by the first Appellate Court are in accordance with the evidence available on the file, as they have fully proved their case.
Lastly prayed that this civil revision is liable to be dismissed.
5. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance as well as scrutinized the judgments/decrees passed by the Courts below.
6. The onus of issues Nos. 1 and 2 was on the plaintiffs, whereas onus of issue No. 1-A was on the defendants. The Mutations Nos. 195 and 196 were attested on 05.04.1988, which-are on the record as Ex P-15 and Ex.P- l 6, respectively. Admittedly these mutations were entered on 15.09.1985 and were sanctioned on 05.04.1988 and a very lengthy` inquiry was conducted by the revenue officer before attestation of mutations. The proceedings conducted by the Revenue Officer are also available with these mutations. There were two other persons claiming the inheritance of above- stated two ladies. One person was Muhammad Rafique who claimed to be husband of Mst.
Sharifan Bibi and another person Noor Muhammad son of Abdullah claimed to be paternal uncle of ladies, also came forward before the revenue hierarchy but these two persons after denial of their right by the revenue hierarchy not came forward in this civil litigation and mutations of inheritance were attested in favour of petitioners-defendants, which were challenged through the suit in hand.
It is not denied that the proceedings of mutations remained pending for a bout 2Y2 years and a comprehensive inquiry was conducted by the revenue officials. Before the revenue officials plaintiffs were claiming to be sons of Wali Muhammad son of Aulia but when during the comprehensive inquiry they saw the pedigree-table etc., therefore, they changed their claim and then started claiming to be sons of A.I Bakhsh alias Wali Muhammad. Ex.D-1 and Ex. D-2 and further Ex.P-5, Ex.P-6 and Ex.P-7 which are the certified copies of general power of attorney by the plaintiffs in favour of their alleged Attorney, are sufficient to negate their fresh claim that they are the sons of All Bakhsh alias Wali Muhammad.
7. For proving relationship with the deceased ladies, evidence of the parties is to be scrutinized and believed if it is believable on the touchstone of Article 64 of Qanun-e-Shahadat Order, 1984 and the previous Section 50 of the Evidence Act (I of 1872). In this regard light can be taken from the dictum laid down in "PLD 1965 (W.P.) Lahore 482 (Ghulam Muhammad and another v. Allah Yar and others) and PLD 1976 SC 767 (Shah Nawaz and another v. Nawab Khan)".
8. So far as the documentary evidence is concerned. The main reliance of the petitioners is on Ex.P- 1 to Ex.P-4. The objection of learned counsel for the petitioners is correct that these documents were not admissible in evidence, as these were the alleged certified copies from foreign country which could be got admitted in evidence in accordance with Article 89(5) of the Qanun-e- Shahadat Order. 1984, as these were not per se admissible, therefore, could not be exhibited in the statement of learned counsel for the plaintiffs. The Ex.P-1 negates Ex.P-3, as according to Ex.P-1 the copy of Jamabandi for the year 1946-47 and 'Missal-Haqiat' 1915-16 was sent along with this alleged letter. There is no mention of pedigree-table (Ex.P-3) in this document. Learned counsel for the petitioners has further drawn my attention to the footnote of Ex.P-3, wherein Khewat numbers have been written regarding the holding of persons whose pedigree-table has been mentioned supra and the Jamabandi and 'Missal-Haqiat' produced by the plaintiffs as Ex.P-2 and Ex.P-4 do not relate to these Khewat numbers. In this view of the matter, Ex.P- l to Ex.P-4 are not only the documents inadmissible in evidence but also contrary to each other, therefore, no benefit can be given to the plaintiffs for these documents. The statement of witness with regard to relationship of the parties must be the statement of conduct of witness on which his opinion be about relationship and Court to critically examine the witness and call upon him with regard to source or information about relationship and time at which he acquired his knowledge. In this case, as I have discussed above, the statements of P. W-1 and P.W-2 are absolutely not helpful for the petitioners to prove the relationship of plaintiffs, as alleged by them with the deceased ladies. I have noticed that on the impugned mutations, pedigree-table was carved out by the revenue Officers while conducting the inquiry and the first Appellate Court has taken that pedigree-table from the mutations and wrongly prepared the pedigree-table in its judgment, therefore, reached to a wrong conclusion.
9. In a suit for declaration of relationship, appearance of plaintiff in the witness-box is necessary, therefore, in this case non-appearance of plaintiffs as their own witness goes against them.
10. When lengthy inquiry was conducted before the attestation of mutation and after that the plaintiffs remained silent for a period of three years and they have not produced any undisputed pedigree-table or they have not proved the relationship with the deceased ladies and none of the plaintiffs appeared in the witness-box and the Attorney who appeared as a witness of plaintiffs as P.W-1 is not having a personal knowledge with regard to relationship, Ex.P-1 to Ex.P-4 are inadmissible in evidence. Therefore, the plaintiffs failed to prove their case as pleaded by them.
11. In the above circumstances, judgment and decree passed by the first Appellate Court is absolutely result of misreading and non-reading of material evidence available on the file and wrongly suit was partially decreed. Accordingly, this civil revision is allowed and the impugned judgment and decree dated 10.09.1999 passed by the first Appellate Court are set aside and are restored to that of learned Trial Court dismissing the suit with costs throughout.
Civil revision .