' AMIN-UD-DIN KHAN, J.- Through this civil revision, the petitioner has challenged the judgment and decree dated 21-7-2010, passed by the learned Additional District Judge, Bhalwal, District Sargodha, whereby the appeal filed by the respondents was accepted and the judgment and decree dated 3-2-2010, passed by the learned Civil Judge, Bhalwal, District Sargodha, decreeing the suit of the plaintiff/ petitioner, was set aside.
2. Brief facts of the case are that the petitioner, on 18-10-2003 filed a suit for declaration contending therein that she is the widow of Muhammad Yar son of Manak Kh^n and therefore, entitled to inherit him as the; deceased and plaintiff were issueless. She also challenged Mutation of Inheritance No, 15162 dated 15-3-2003, sanctioning 5/6 share in favour of Manak, father of the deceased and 1/6 share in favour of Ghulam Bibi, mother of 'the deceased, excluding the plaintiff/petitioner.' She further challenged the alleged divorce and certificate of confirmation of divorce. Defendants were summoned, they appeared, filed their written statement, contested the suit. The learned trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. The learned trial Court, vide judgment and decree dated 3-2-2010 decreed the suit. The judgment- debtors/defendants preferred an appeal, which was accepted, vide judgment and decree dated 21-7-2010. Hence, this civil revision.
3. Learned counsel for the petitioner states that the original divorce deed is not 0n the surface and admittedly the alleged divorce deed was not sent to the plaintiff/petitioner by the deceased/Muhammad Yar and also no notice was given to the plaintiff/petitioner. Learned counsel further states that on the basis of inadmissible, evidence, which is otherwise indirect in nature, the defendants have defended the suit and the plaintiff through direct and confidence- inspiring evidence proved her case and findings recorded by the learned trial Court are based on reasons whereas the learned first appellate Court, without any justifiable reasons and eyen without proper rebuttal, has set aside the well-reasoned judgment of the learned trial Court while relying Upon inadmissible evidence produced by the defendants and has dismissed the suit filed by the plaintiff/petitioner.
4. On the other hand, learned counsel for the respondents states that findings recorded by the first appellate Court are to be given preference under the law. Further states that there was a proceeding of confirmation of divorce in the Union Council. He also states that even various departments enquired into the matter and came to the conclusion that the deceased had divorced the plaintiff/petitioner in his lifetime.
5. I have heard the learned counsel for the parties at full length and have gone through the record with their able assistance.
6. The basic requirement for determination of this case is that on the basis of a stand taken by the defendants that plaintiff/petitioner was divorced by her husband, namely, Muhammad Yar in his life time, if the version of the defendants is proved certainly the plaintiff/petitioner is to be disinherited from the inheritance of Muhammad Yar, therefore, very care and caution is required in this case as it relates to a matter of inheritance. As the factum of pronouncing of "talaq", reducing it into writing and then confirmation of that 'talaq' by the concerned Union Council under the law were the pivotal points in this case, certainly for proving a fact through positive evidence was the responsibility of the defendants. As they have asserted that the deceased divorced the plaintiff/petitioner and plaintiff has negated the fact, when she made statement on oath before the court that she was never divorced by her husband and she was never conveyed about the alleged divorce, the onus shifted upon the defendants to prove positive, the factum of divorce and its confirmation. For positive proof of divorce, the relevant material was the entry of the stamp vendor about the sale of stamp paper for instrument Of 'talaq', the original divorce deed, entry in the register and statement of the writer of, the alleged divorce deed. Nothing from the above evidence has been produced by the defendants. Even defendant No,l has admitted that he has sent the alleged divorce to the Union Council and it is also admitted that 'nikah' of the parties took place at Chak No,10 and the alleged divorce was processed in Union Council Dhall. Further the statement of the plaintiff that along with the dead body of the deceased/Muhammad Yar two cheques, each amounting to Rs, 1,32,000/-, one in the name of the plaintiff/petitioner and the other in 'the name of father of the deceased i,e, defendant No,l were also received and one cheque was handed over to the plaintiff/petitioner, has not been denied by the other side. Admittedly, Muhammad Yar died in Saudi Arabia on 12-6-2003 whereas the alleged divorce received in the Union Council on 16-8-2001 and the matter was decided on 14-11-2001. It is nowhere proved that the deceased ever appeared before the Union Council for submission of the alleged divorce or for proceeding with regard to the confirmation of the divorce, rather defendant No,l has stated that he sent the divorce to the Union Council. I have noticed that the impugned Mutation No, 15162, copy, of which has been produced as Exh.D-3 is copy from 'Purt Patwar'. Its certified copy from the revenue office has not been produced, therefore, it does not contain the complete proceedings. Only the summary of passing the mutation has been entered by the Patwari on this mutation, therefore, it is not proved that any enquiry was made with regard to the-divorce of the plaintiff at the time of attestation of the mutation. Further I have observed that the documentary evidence produced by the defendants has been got exhibited in the statement of the learned counsel. As I have noted that most of the certified copies of the documentary evidence were not certified in accordance with Article 87 of the Qanun-e-Shahadat Order, 1984, therefore, were not per se admissible and the original record has not been produced by the defendants, therefore, the documentary evidence produced by the defendants has a little value. Defendants have orally alleged that various departments have also found that plaintiff was divorced by the deceased but nothing has been proved on the record.
7. In the above discussion, it is clear that findings recorded by the learned trial Court are in accordance with the evidence available on the file and are well-reasoned findings whereas the learned first appellate court fell in error while relying upon inadmissible evidence produced by the defendants. In this view of the matter, this civil revision is accepted and the judgment and decree passed by the first appellate Court is set aside.