HAIDER ALI KHAN, J:- This revision petition is directed against the judgment and decree dated 14.03.2013 passed by learned Additional District Judge, Balakot, whereby the appeal of the present petitioners against the judgment and decree dated 14.12.2010 of the learned Civil Judge-II, Balakot was dismissed.
2. The brief and essential facts leading to the present petition are that the petitioners instituted suit No.75/1 of 2004 seeking declaration to the effect that they alongwith proforma respondents were the only legal heirs of deceased Muhammad Rafique son of Azizullah and as such, they were owners of property bearing Khata No.1802/2403 Khasra No.2447 measuring 10 Kanals 5 Marlas, Khata No.952/1286, Khasra No.1994 measuring 2 Kanals 17 Marlas, Khata No.953/1287 Khasra No.1991 measuring 17 Kanals 15 Marlas, Khata No.954/1288 Khasra No.1995 measuring 32 Kanals 12 Marlas, and Khata No.955/1289 Khasra No.1990 measuring 3 Marlas, situated in Mauza Balakot, Tehsil Balakot District Mansehra as enumerated in Jamabandi for the year, 2002-2003 and respondent No.1 has got no right to inherit the disputed property and his claim that he being legal heir of deceased Muhammad Rafique was consanguine or uterine brother of the petitioners was wrong, against the fact and ineffective on the rights of the petitioners. The petitioners also prayed for perpetual injunction restraining respondent No.1 from claiming himself to be the legal heir of deceased and owner of the disputed property.
3. Respondents, when put on notice, only respondents No.1, 3 and 4 appeared before the trial Court and contested the suit by filing written statements. The learned trial Court framed the following issues:-
1. Whether the plaintiffs have got the cause of action? OPP
2. Whether the plaintiffs are estopped to sue?
3. Whether the suit is bad in its present form?
4. Whether the suit is bad for mis-joint and misjoinder of necessary parties?
S. Whether the instant suit has been filed just to harass mentally torture the defendants and in case of dismissal of the suit the defendants will be entitled for compensatory costs?
6. Whether defendant No.1 is not the real son of Muhammad Rafique?
7. Whether plaintiffs are entitled for the decree as prayed for?
8. Relief?
4. The parties produced their evidence in support of their respective claim. The learned trial Court after hearing the parties, dismissed the suit of the petitioners vide impugned judgment and decree dated 14.12.2010. Aggrieved thereof, the present petitioners impugned the said decision in appeal before the learned Additional District Judge, Balakot, which was also dismissed vide judgment and decree dated 07.05.2013. Hence, the present petition.
5. The learned counsel for the petitioners referred to litigation between the mother of defendant No.1 and his father way back in 1963 and brought to the notice of the Court, statement of mother of Muhammad Shafiq, respondent No.1/defendant No.1, wherein she had stated that she had only three children. Replying to this the counsel for the respondent No.1/defendant No.1 drew the attention of this Court to a reply submitted against an application by Muhammad Rafique, father of the petitioner, wherein, she had stated that she had four children so this argument stands neutralized as the same can be an omission or a simple slip of tongue; that another argument of the learned counsel for the petitioner was that he had moved an application before the learned trial Court, wherein, he requested for DNA test of defendant No.1/respondent No.1, which application was not disposed of by the trial Court; and that the learned counsel also tried to establish that respondentNo.1/ defendant No.1 was not the real brother of the plaintiffs, as the mother of the said respondent contracted a second marriage.
On the other hand, counsel for respondent No.1 stated that he had annexed his School Leaving Certificate and National Identity Card with the written statement submitted by him before the learned trial Court and which were very much part of the record and in both these documents, the parentage of the respondent has been mentioned as Muhammad Rafique.
6. Valuable arguments of learned counsel for the petitioners and respondents heard and available record thoroughly perused.
7. Admittedly, there is nothing on the record which could show that Muhammad Rafique, father of the respondent/defendant ever disowned the fact that Muhammad Shafiq was his son though he died in 2003 and by then Muhammad Shafiq was 39/40 years of age. Nobody else of the parties disputed that fact prior to institution of present suit, which was instituted in the year, 2005, after the death of father of the petitioners. The suit filed by the first wife of Muhammad Rafique, namely, Mst.
Resham would show that she remained in wedlock even after she received first notice of Talaq from Union Council Mansehra. Nevertheless, counsel for the respondents drew attention of this Court to establish principle and presumption of legitimacy under the Islamic law, which states that: " A child born within two years after the termination of marriage is presumed to be legitimate unless disclaimed by li'an. (S.333). According to Shafei and Maliki law, the period is four years.
According to Shia law, it is ten months."
Even on the basis of this presumption, if it is presumed that the divorce was effected on 11.10.1963, which is not denied by the petitioner, even then respondent No.1/defendant No.1 was born on 4.10.1964 makes him a legitimate child of Mr. Muhammad Rafique, father of the petitioner/plaintiff. It is further observed that although the burden to disprove the parentage of respondent No.1/defendant No.1 was all along on the petitioner/plaintiff but he never discharged the same. The CNIC Card and the School Leaving Certificate was appended by defendant/respondent No.1 with his written statement before the trial Court but the petitioner/plaintiff never tried to disprove that fact, as the onus to prove that fact was all along on him which he never discharged during the course of trial.
8. In view of the above reasoning and perusal of the entire record and the judgments both the learned Courts below, there is nothing on record which would call for interference of this Court in the impugned judgments, as nothing perverse, illegal has been pointed out. Besides, no error of fact or law has been highlighted by the petitioner, therefore, the revision in hand is dismissed.