RAJA MUHAMMAD KHURSHID KHAN, ACTG. C. J.-Four respondents, namely, Mst. Aseela Begum, Mst. Ameera Begum, Mst. Kali and Ust. Rai Begurn to this appeal, by leave, instituted a possessory suit for the entire land of Mst. Husno, their mother, treating her as full owner.
2. The trial Court found the respondents' entitlement to the extent of 1/4th share in the land left by Mst. Husno and decreed the claim accordingly. This land she inherited from Fazal her second husband. It may be stated here that it is concluded by all the Courts below that Mst. Husno died somewhere in the years 1948 or 1950 after the enforce--ment of Shariat Law of inheritance.
3. This finding of the trial Court was upheld by the District Judge, on first appeal, vide order dated 18-11-1676. A learned single Judge of the High Court, however, vide his judgment dated 8-2-1978 in depar--ture to the finding recorded by the subordinate Courts felt persuaded to pass a decree in favour of respondents for 19/24th share in the land left by Fazal instead of 1/4th share for their being daughters of Mst. Husno from her marriage with Fazal.
4. The decree was passed by the learned Judge holding that the respondents were, in their own rights, entitled to inherit the property of Fazal whose daughters they were and they were also entitled to their shares out of the share of their mother, Mst. Husno.
5. This appeal, by leave, seeks to call up and quash the judgment of the High Court and restoration of the finding recorded by the subordinate Courts (trial Judge and District Judge).
6. After hearing the learned counsel for the parties and examining, the entire record our view is that all the Courts below, including the learned Judge in the High Court, have misdirected themselves in the determination of the controversy for the reasons to be stated presently.'
7. Mst. Husno was firstly married to one Mutwali and after his death she was remarried to Fazal. It has come in the evidence of the parties that two daughters, namely, Mst. Aseela Begum and Mst.
Ameera Begum (respondents/plaintiffs) were born to Mst. Iiusno out of her wedlock with Fazal while Mst. Kali and Mst. Raj Begum (respondents/plaintiffs) were born to her out of her marriage with Mutwali. Reference may made to the statements of Mst. Aseela Begum, Muhammad Qasim, examined by Mst. Aseela Begum and others (respondents/plaintiffs) and that of Sumandar and Abdullah, examined by the appellant/defendant, Ghulam Hussain Khan. They are one to state that Mst. Aseela Begum and Mst. Ameera Begum were born to Mst, Husno out of her with Fazal while Mst.
Kali and Mst. Raj Begum were born to her out of her wedlock with Mutwali. Their statements are to be believed as they have not been challenged in cross-examination on this issue.
8. Mr. B .A. Farooqi, the learned counsel for the appellant, how--ever, wants us to ignore the statements of all these witnesses and prefer to rely on the statement of one of the witnesses, namely Sher Ali, examined by Mst. Aseela Begum and other respondents, who deposed that all the daughters were born to Mst. Husno from her weld lock with Mutwali, her first husband. In his view the respondents were bound by the statement of this witness and taking his statement as it is the daughters (respondents) are only entitled to inherit their shares out of the land inherited by their mother Mst. Husno from the land of Fazal, her second husband.
9. We are afraid we cannot agree with him. "It sometimes happens that witness who is called by a party in the expectation, or on the under--standing, that he would give evidence as to the existence of a particular fact, either does not give evidence which was expected of him or gives contrary evidence in such cases. The party calling the witness can get rid of the evidence of such a witness by adopting any one of the following three courses :--
(i) 1f the fact the witness was expected to prove is a fact in issue or a relevant fact, the party calling the witness, may, as of right, call other witnesses to depose to that fact and thus destroy the adverse effect of the witnesse's evidence. A witnesses, whether of the opposite-party or one's own, may always be contradicted on relevant facts without the permission of the Court. It would be in the highest degree unjust and absurd if parties were bound by the unfavourable statements of witnesses with whom they have no privities and who are frequently called by them from pure necessity.
(ii) The party calling the witness may, with the permission of the Court, impeach the credit of the witness, by evidence of the kind mentioned in section 155.
(i.e) The party calling the witness may, with the permission of the Court, cross-examine him in the manner described in sections 145 and 146.'
10. 1t would thus appear that where the evidence given by a witness is unfavourable to the party calling him or is contrary to the evidence which the witness was expected to give his statement can be discarded by calling other witnesses to depose that fact or with the permission of the Court impeach his credit by cross-examination or by the method recognized to impeach the credit of a witness under section 155 of the Evidence Act.
11. In the instant case the respondents have quite convincingly con--tradicted the deposition of Sher Ali witness by examining Mst. Aseela Begum and Muhammad Qasim (examined by the respondents). Their statement is even owned by the witnesses, namely, Sumandar and Abdullah, examined by the appellant.
12. If one of the frequent instances when a witness talks out a matter which is otherwise disproved by other convincing evidence of the parties, the Court should ignore the statement of such a witness and instead of using it as whip or convenient to pronounce judgment should examine the claim of the parties in the light of other available evidence. The circumstances of this case convince us that Sher Ali had, either through inadvertence or lack of knowledge, stated a fact which has otherwise been satisfactorily proved as incorrect. Therefore, in the circumstances of the case no adverse inference can be drawn against the respondents from the statement of Sher Ali.
13. The dispute, the evidence sufficiently proves, relates to the land left by Fazal. This brings us to determine the shares to which the respon--dents are entitled. Fazal deceased was survived by Mst.
Husno and his two daughters, namely. Mst. Aseela Begum and Mst. Ameera Begum. Out of the property of Fazal Mst. Husno will get 1/8th share while his two daughters, Mst. Aseela Begum and Mst. Ameera Begum, would get 2/3rd. The overall entitlement of Mst. Husno, Mst. Aseela Begum and Mst. Ameera Begum, out of the land left by Fazal, thus comes to 19/24tb share. Mst. Kali and Mst. Raj Begum, the daughters of Mutwalli, are only entitled to get 1/16th share out of 1/8th share allowed to Mst. Husno out of the property of Fazal.
14. Mst. Aseela Begum and Mst. Ameera Begum, respondents, born to Mst. Husno out of her marriage with Fazal, are, therefore, entitled to 35/38th share out of the land left by Fazal while Mst.
Kali and Mst. Raj Begum, the daughters of Mst. Husno, born of her wedlok with Mutwali, her first husband, are entitled to 3/48th share out of the property of Mst. Husno which she inherited from Fazal. The remaining will go to the residuary or residuaries.
For the above stated reasons the appeal stands dismissed but in exercise of the powers vested in this Court under Order XLIII of the Azad Jammu and Kashmir Supreme Court Rules, 1978 we hold that the respondents are entitled to a decree as indicated above. The decree shall, therefore, be prepared on the basis of our observations made above. No order as to costs.