NASIM HASAN SHAH, J.-This appeal by leave of this Court is directed against the judgment of a learned Single Judge of the Lahore High Court, Bahawalpur Circuit, Baghdadul Jadid dated 27-3- 1973 passed in R. S. A. No. 10 of 1967/BWP.
2. The facts which form the background are that the appellants here--in filed a suit for declaration to the effect that they were the sole heirs of Haji Qadir Bakhsh deceased to the exclusion of defendants/ respon--dents Nos. 1 to 8 and that the two mutations of inheritance attested in favour of the defendants were void and inoperative. As a consequential relief it was prayed that a perpetual injunction be granted restraining the defendants from interfering with the plaintiffs' possession of the property in dispute. The suit was dismissed by the trial Court vide its judgment and decree dated 12-5-1966. However, on appeal, the learned District Judge, Rahim--yar Khan set aside the said judgment and decreed he suit of the appellants vide his judgment and decree dated 22-12-1966. On second appeal, a learned Single Judge of the High Court set aside the appellate judgment of the District Judge and restored that of the trial Court by his judgment passed on 27-3-1973. Hence this appeal.
3. The deceased Haji Qadir Bakhsh was murdered on 29-3-1964. The F. I. R. Regarding this occurrence was lodged by Mst. Qadul claiming to be the wife of the deceased. Two mutations of inheritance were also entered at her instance in respect of lands owned by Haji Qadir Bakhsh deceased in Chak No. 23/BP (Mutation No. 115 Exh. P . 5 and Mauza Dinu Shah (Mutation No. 359 Exh.
P. 4) in the District of Rahimyar Khan. However, she informed the authorities that the deceased had also left another widow named Mst. Allah Jiwayee and son Allah Bachaya and daughter Mst.
Chuttan, the appellant herein, from his first wife. As a result of summary enquiry held at the spot the Assistant Collector sanctioned both the mutations of inheritance in favour of the appellants and the respondents as heirs of the late Haji Qadir Bakhsh.
4. The legality and validity of these mutations were challenged by the appellants by filing a suit before the Civil Judge, Sadiqabad for a declaration to the effect that they were heirs of Haji Qadir Bakhsh and that the defendants/respondents were not the heirs of the aforesaid deceased and that the two Mutations Nos. 115 and 359, relating to the lands left by the deceased in Chak No. 23/W.
P. And village Dinu Shah were void and inoperative to the extent of allowing share in favour of the defendants. The basis for seeking this declaration was that Haji Qadir Bakhsh had never entered into a lawful marriage with Mst. Qadul and that respondents Nos. 2 to 8 were not his legitimate children. These assertions were repudiated by the defendants and considerable oral evidence was produced to show cohabitation between the deceased and Mst. Qadul over a period of 14 years and also to prove that she was being maintained by the deceased, that she had a voice in the management of his lands and that at the time of admission in the schools her children were described as being those of the deceased. However, no direct evidence of the performance of Nikah was forthcoming on the contrary. Mst. Qadul made contradictory statements as to the place at which the Nikah was performed and the name of the Nikah Khawan. The learned trial Judge, as already mentioned, found that as legitimacy and the marriage may be proved, presumed or inferred from the circumstances he was satisfied that, in the circumstances of this case. Mst. Qadul could be held to be the wife of Haji Qadir Bakhsh and defendants Nos. 2 to 8 to be his issues. He, accordingly, dismissed the suit of the plaintiffs/appellant.
5. On appeal, the learned District Judge, Rahimyar Khan, on the contrary, came to the conclusion that the defendants had failed to produce such evidence as to warrant a conclusion that Mst.
Qadul was a legally wedded wife of Haji Qadir Bakhsh and that the other defendants are their children. He, accordingly, accepted the appeal and declared that only the plaintiffs were the heirs of Haji Qadir Bakhsh and they alone were entitled to the entire land left by the deceased to the exclusion of the defendants and that the Mutations (Nos. 115, 359) were void and ineffective to the extent that some part of the land of Haji Qadir Bakhsh was transferred thereunder to the defendants.
6. On second appeal, before the High Court the learned Single Judge allowed the defendants to adduce additional evidence in the shape of a certified copy of the birth entry of Jamal Din (respondent No. 7) and a photograph of the deceased with Mst. Qadul and her three children. He observed that Mst. Qadul was handicapped at the trial of the suit for the reason that she was a lady with no grown up children to look after her interest and that additional evidence was needed by the Court in the interest of justice in view of the inadequacy of the evidence already brought on the record for the purpose of the proper determination of the issues arising in the case.
7. The learned Judge then reviewed the evidence adduced by the parties and after referring to a large number of decided cases and text-books on Muslim Law, reached the conclusion that even though direct proof of marriage was not available in this case; a presumption could safely be drawn, from the proved circumstances, with regard to the existence of marriage between the deceased and Mst. Qadul, as also with regard to the legitimacy of her children. He further observed that in his view, the Court must lean in favour of presumption of marriage and legitimacy and, accordingly, the District Judge was in error in taking a strict view of the evidence and insisting that the burden of proof lay all along on Mst. Qadul and her children. He, therefore, accepted the appeal, set aside the order of the District Judge and restored that of the trial Judge. The judgment is reported in PLD 1973 Baghadul Jadid at p. 48, while seeking leave to appeal of this Court, it was submitted that the High Court had erred in admitting additional evidence at the late stage in second appeal and that it was also in error in drawing the inference from the circumstances relied upon by the defendants despite the factum of marriage not having been proved about the existence of marriage between the deceased and Mst. Qadul arid the legitimacy of her children as no such presumption could be drawn from the circumstances relied upon by the defendants.
8. This Court by its order dated 1-3-1974 rejected the first contention raised on behalf of the appellants and held that the High Court was clearly right in admitting additional evidence if it felt that the matter could not be properly decided on the basis of the material already brought on the record by the parties. It was further observed that no prejudice was caused to the appellants, as they were allowed full opportunity for cross--examination and rebuttal. However, the second ground urged on behalf of the appellants, namely, that the factum of marriage not having been proved no presumption of lawful marriage between the deceased and Mst. Qadul, nor as to the legitimacy of her children could be drawn from the circumstances relied upon by the defendants, raised a question of law of public importance. It was also observed that there was no authoritative pronouncement of this Court on the principles to be applied in cases of this kind. Leave, accordingly, was granted to examine this aspect of the case by the order of the Court dated 1-3- 1974.
9. Since then this Court has had the opportunity of pronouncing on the principles to be applied in cases of this kind. In Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624), it was inter alia, held that- "Legitimacy is a status which results from certain facts, whereas legitima--tion is a proceeding which creates a status which did not exist before. This proceeding becomes necessary where either the existence of a valid marriage cannot be expressly proved or where the child is born within six months of the marriage as stated above. In such cases, acknowledgement of legitimacy in favour of the child may be either express, or by necessary implication from the course of treatment by the man of the mother and the child, or from the evidence of repute and notoriety amongst the members of the family, community and respectable members of the locality. Such an acknowledgement raises a presumption of a valid marriage and legitimate birth."
In support of this view reliance was placed on a number of cases, namely, Syed Habibur Rehman Chowdhry v. Syed Altaf Ali Chowdhry (AIR 1922 P C 159),Khawaja Hidayatullah v. R.I Jan Khanum ((1844) 3 Moors I A 295), Muhammad Bauker Hoosain Khan Bahadoor v. Sharfoon Nissa Begum ((1860) 8 Moors I A 136), Ashrafood Dowlah Ahmad Hussain Khan Bahadoor v. Hyder Hussain Khan (1866 Moors I A 94), Muhammad Allahdad Khan v. Muhammad Ismail Khan (I L R 10 All. 289), Abdul Razzaq v. Agha Muhammad Jaffar Bindanim (I L R 21 Cal. 666), Mst. Bibee Fazilaunessa v. Mst. Bibee Kamarunessa ((1905) 9 C W N 352), Sadiq Hussain Khan v. Hashim Ali Khan ((1916) 43 I A 212), Zakirali v. Sograbi (AIR 1918 Nag. 32), Zamin Ali v. Azizunessa (I L R 55 All. 139), and Bibi Amu v. Mst.
Asiat (PLD 1958 Kar. 420).
10. More recently in Major Sher Afzal v. Shamim Firdaus and another (PLD 1980 SC 228), to which judgment one of us (Nasim Hasan Shah, J.), is a party, it was observed :- "Here it may be pointed out that "Mere cohabitation of man and woman, or their behaviour in other respects as husband and wife always affords an inference of greater or lesser strength that a marriage has been solemnised between them. Their conduct being susceptible of two opposite explanations, the Court giving effect to the presumption of innocence (V ante) is bound to be moral rather than immoral". (This is on the principle that law in general presumes against vice and immorality) Woodroffe and Ameer Ali (Law of Evidence) Vol. III, 11th Edition, Commentary under section 114 of the Evidence Act under the heading "marriage" page', 2337. See also Mohabat Ali v.
Muhammad Ibrahim Khan. In that case it was further held that the law presumes in favour of marriage and against concubinage, when a man and a woman have cohabited for a number of years."
11. Thus, the question on which an authoritative pronouncement was considered desirable now stands clarified by the above two pronouncements. We are in complete and respectful agreement with the dictum laid down in these two judgments. We might usefully quote two extracts from renowned authors of Muslim Law, on this subject which have also been noticed by the learned Judge in the High Court. Amir Ali in his work on Muhammadan Law (1965 Edn. Vol. II, p. 189) states :- "Status of legitimacy.-When the parties are married, and the marriage is a matter of notoriety and capable of distinct proof, any dispute as to the status of the children resolves itself into a mere question whether the children were conceived and born in lawful wedlock. But there may be cases in which the marriage is not capable of being easily proved. It may have been contracted in a distant country, or under circumstances which preclude the possibility of securing documentary or oral testimony as to the factum of the marriage. In these cases the Muhammadan Law presumes a legal marriage from continued cohabitation and the acknowledged position of the parties as husband and wife, provided there is no insurmountable obstacle to such a presumption and provided the relationship existing between the parties was not "a mere casual concubinage" but was permanent in its character, justifying the inference that they were lawfully married."
Abdur Rahim in his Muhammadan Jurisprudence (1958 Edn.) at page 341, under the heading "Paternity" observes :- "One important incident of the institution of marriage is that it settles the paternity (nasab) of the child born in wedlock. The provisions of Muhammadan Law in this matter are extremely liberal.
There are several reasons for this. The paternity of a child determines, in the first place, whether the child is to be treated as a Muslim or non-- Muslim, a freeman or a slave. Further, if the law is not able to ascertain the father of a child, it is likely to perish for want- of some person, who can be made responsible for its support and maintenance."
12. Reverting to this case, the circumstances relied upon in the High Court in holding that the existence of marriage between the deceased an Mst. Qadul could be presumed were firstly the acknowledgement of paternity by Haji Qadir Bakhsh of the children born to Mst. Qadul. It was also noted that there was cohabitation between the two for 13 years : the report of murder of the deceased by Mst. Qadul was lodged by Mst. Qadul that the children of Mst. Qadul were being maintained by the deceased, the land of the deceased were being managed the reputation amongst the people that the two were the husband and wife and the absence of any evidence that the two were living in adultery. On the other hand, the evidence was that Haji Qadir Bakhsh was a pious and good Muslim.
13. In view of these facts the learned counsel for the appellants was unable to contend seriously that the finding of the High Court that in these circumstances a presumption could be raised that Mst. Qadul was the wife of the deceased and her children were the legitimate children of Haji Qadir Bakhsh could not be raised. He, therefore, directed his efforts to establish that the High Court had erred in allowing additional evidence to be taken in the second appeal, which enable the respondent No. 1 to succeed in getting this presumption raised.
14. We do not think that the learned counsel for the appellants can be permitted to raise the plea before us. The above plea was specifically overruled in the order dated 1-3-1974 granting leave to appeal and reasons given for so doing. Any attempt to reopen this finding is really an attempt to obtain a review of the said order for which no warrant exists.
15. The result is that this appeal must fail and is dismissed hereby with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.