1. KHADIM HUSSAIN M. SHAIKH, J.--- This Civil Revision Application is directed against the judgment dated 27.06.2015 and decree dated 30.06.2015, passed by the learned IV-Additional District Judge, Khairpur in Civil Appeal No,27 of 2012 re: Mst. Aasia v. Mst.Gul Cameeran and others whereby the judgment and decree dated 24.02.2012, passed by the Civil Judge/Family Judge, Khairpur in Civil Suit No,09 of 2011 re: Mst. Aasia v. Mst.Gul zameeran and others dismissing the said suit, were set aside, decreeing the suit as prayed by allowing the appeal.
2. The facts of the case are the plaintiff Mst. Aasia had filed the above suits stating therein that she was married with Raheem Bux on 26.05.2005 and from this wedlock one son namely Zaid Ahmed was born, who was aged of 3 years at the time of filing the suit. The applicants/defendants Mst.Gul Zameeran, Mst. Sofia, Mst. Reshma and Mst. Rabel are the daughters of deceased Raheem Bux from his first wife Mst.Rani. Raheem Bux had expired, on 30.06.2010, leaving behind the plaintiff Mst.
2. Aasia, her son Zaid Ahmed and the above named applicants/defendants as his surviving legal heirs. As deceased Raheem Bux was an employee of education department as PST, therefore, the defendant No,3 Mst. Reshma moved an application to the Mukhtiarkar Revenue Kotdiji for obtaining Heir-ship Certificate only in the names of the defendants. Along with the application the defendant No,3 also filed some documents including photostat of a fake, forged and fabricated Talaqnama dated 29.06.2010, of deceased Raheem Bux for the plaintiff so as to debar the plaintiff from getting due share in G.P Fund and other dues of her deceased husband and to deprive her from legitimate share in the movable and immovable property left behind by her late husband Raheem Bux. The plaintiff being widow of late Raheem Bux, produced her valid Nikahnama with deceased Raheem Bux and her CNIC before the Mukhtiarkar Revenue Kotdiji, opposing the grant of such Heir-ship certificate to the exclusion of the plaintiff and her son Caid Ahmed. The Mukhtiarkar Revenue Kotdiji held spot enquiry and also called and examined the Secretary Union Council Kumb, who vide his letter No,27 dated 28.03.2011 reported to the Mukhtiarkar that the Talaqnama of the plaintiff is neither entered in the relevant register nor it is available on the record of Union Council Kumb.
3. Ultimately the Mukhtiarkar (Revenue) Kotdiji by order dated 19.04.2011, directed the defendant No,3 to seek remedy from the competent Civil Court, dismissing her application, but the defendants instead of filing of suit were trying to get succession certificate in their names by excluding the name of the plaintiff and they were bent upon to transfer the sikni property and agricultural land of deceased Raheem Bux in their names, so as to deprive the plaintiff from her legitimate right in the property of her husband deceased Raheem Bux, hence she filed the aforesaid suit with the following prayers:-
(a) To declare that the plaintiff being the legally weeded wife and widow of the deceased Rahim Bux is legally entitled to get due share in the dues of her deceased husband from education department and she is also entitled to get due share in the movable and immovable i,e, property left by the deceased and so also divorce deed dated 29.06.2010 executed by the deceased Rahim Bux produced by the defendant No,3 before Mukhtiarkar (Revenue) Kotdiji is fake, forged, fabricated and manipulated, which is not binding upon the plaintiff.
4. (b)To cancel the divorce deed dated 29.06.2010 allegedly executed by deceased Rahim Bux for the plaintiff being fake, fabricated and bogus divorce deed.
5. (c)To grant the permanent injunction thereby restraining the defendants or letter of Administration for getting dues of deceased Rahim Bux from education department and transferring the property of the deceased in their exclusive names by depriving the plaintiff being the widow of the deceased and legally entitled to get due share in the dues, movable and immovable property of the deceased Rahim Bux.
6. (d)To award costs of the suit and any other relief which this Honourable Court deems fit and property."
7. 3.The defendants after service of summons appeared before the trial Court filed their written statement wherein they denied the claim and allegations of the plaintiff. It is further stated therein that their father late Raheem Bux had expired on 30.06.2010 and the plaintiff was divorced by him on 29.06.2010 and she is no more legal heir of deceased Raheem Bux. The defendants also took the additional legal pleas that the suit is not valued properly and the plaintiff has failed to pay the court fees; the suit of the plaintiff is not maintainable and is liable to be dismissed.
8. 4.On the divergent pleadings of the parties, the learned trial court framed the following issues:- (1)Whether the suit of the plaintiff is not maintainable according to law?
9. (2)Whether the plaintiff was in the matrimonial tie with deceased prior to his death?
10. (3)Whether the divorce deed dated 29.06.2010 allegedly executed by the deceased Raheem Bux for the plaintiff is fake and bogus?
11. (4)Whether the plaintiff being legal heir of the deceased Rahim Bux is entitled to receive the benefit left by deceased, if so, to what extent?
12. (5)Whether the plaintiff is entitled for the relief claim?
13. (6)What should the decree?
14. The parties went in trial. The plaintiff examined herself as Ex.24, who produced order dated 19.04.2011 of the Mukhtiarkar (Revenue) Kotdiji at Ex.24/A, letter issued by Secretary Union Council, Kumb, addressed to the Mukhtiarkar (Revenue) Kotdiji at Ex.24/B, she also examined Rafiq Ahmed as her witness as Ex.27. Thereafter evidence of the plaintiff's side was closed vide statement at Ex.28. The defendant No,3 Reshma examined herself .at Ex.30 and she produced power of attorney at Ex.30/A. The defendants examined one Fida Hussain as their witness at Ex.31 and thereafter the evidence of the defendants side was closed at Ex.32.
15. 5.The trial court after hearing the parties' counsel dismissed the suit of the respondent/plaintiff Mst. Aasia vide judgment and decree dated 24.02.2012.
16. 6.Having felt aggrieved by the aforesaid judgment and decree passed by the trial court the respondent plaintiff Mst. Aasia filed the aforesaid appeal in the Court of District Judge, Khairpur, which was decided by the learned IV-Additional District Judge, Khairpur vide impugned judgment dated 27.0.2015 and decree dated 30.06.2015, decreeing the suit by setting-aside the judgment and decree, passed by the trial court, allowing the appeal, hence this Civil Revision Application.
17. 7.Learned advocate for the applicants has mainly contended that Raheem Bux Phalio had divorced the plaintiff/respondent Mst. Aasia on 29.06.2010 through a written Divorce Deed/Talapama, whereafter she ceased to be the wife of deceased Raheem Bux, therefore, she is not entitled to inherit any share in the property etc of deceased Raheem Bux; that the trial court dismissed the suit filed by the plaintiff/respondent Mst. Aasia, but the appellate court without considering the case, has set aside the judgment and decree, passed by trial court, decreeing the suit vide impugned judgment and decree, which, per him, are illegal. He, therefore, prays that the impugned judgment dated 27.06.2015 and decree dated 30.06.2015 may be set-aside and the judgment and decree dated 24.02.2012, passed by trial court may be restored.
18. 8.Conversely, learned counsel for the respondent Mst. Aasia has mainly contended that the plaintiff/respondent Mst. Aasia was never divorced by deceased Raheem Bux; that the alleged Divorce Deed/ Talaqnama was fake and forged; that the defendants Mst.Gul zameeran and her three sisters, who were advised by the Mukhtiarkar (Revenue) Kotdiji to seek remedy through the Civil Court, have never filed any suit; that the, learned Civil/Family Judge, Khairpur without appreciating the evidence in its true perspective had dismissed the suit vide judgment and decree dated 24.02.2012; which has rightly been reversed by the appellate court on re-appraisal of evidence brought on record vide impugned judgment dated 27.06.2015 and decree dated 30.06.2015, decreeing the suit of the plaintiff/respondent Mst. Aasia. He, therefore, prays that the civil revision application may be dismissed.
19. 10.I have considered the arguments advanced by the learned counsel for the parties and have gone through the material available on record.
20. 11.From a perusal of the record, it would be seen that plaintiff/respondent Mst. Aasia was admittedly the wife of deceased Raheem Bux, who died in hospital on 30.06.2010; despite having been advised by the Mukhtiarkar (Revenue) Kotdiji, to seek remedy through the Civil Court, the defendants never filed suit; the beneficiary of the alleged Divorce Deed/Talaqnama are the defendants, who by producing photostat of the alleged Divorce Deed/Talaqnama before the Mukhtiarkar (Revenue) Kotdiji attempted to exclude the plaintiff/respondent Mst. Aasia from the inheritance from the property etc of the deceased Raheem Bux, but they have deliberately and intentionally not produced the alleged Divorce Deed/Talaqnama in evidence, which adversely reflects upon them, more particularly, when the plaintiff Mst.Aasia had specifically denied the execution of the alleged Divorce Deed/Talaqnama by her husband deceased Raheem Bux, and is on persistent claim that she, having never been divorced by deceased Raheem Bux, is his legal heir being his widow and the alleged Divorce Deed/Talaqnama is fake and forged. In the wake of such specific denial, the onus was upon the defendants to prove the Divorce/Talaq as it was their own case that deceased Raheem Bux, who had died on 30.06.2010, had executed the alleged Divorce Deed, giving divorce to the plaintiff/respondent on 29.06.2010 i,e, just one day before his demise, and, thus it was the best evidence to be produced in evidence by the applicants/defendants to substantiate their claim and to exclude the plaintiff Mst. Aasia from the inheritance of deceased Raheem Bux and on withholding such best evidence by the defendants, presumption about its having not been executed, can legitimately be drawn against the defendants under Article 129(g) of Qanun-e-Shahadat Order, 1984, moreover, the defendants have also failed to establish that the plaintiff, was divorced by the deceased Raheem Bux and even the defendants have not alleged any proceedings for confirmation of divorce/talaq under the family laws, for effectiveness of talaq a certificate of effectiveness thereof is to be issued by the Union Council concerned as required under family laws. In the case one in hand, the marriage of plaintiff/respondent Mst. Aasia with the deceased Raheem Bux and birth of boy zaid Ahmed from this wedlock, having not been denied, are undisputed, moreso the defendants' own case is that deceased Raheem Bux had divorced the plaintiff/respondent Mst. Aasia just one day before his demise.
13. There is no cavil to the proposition that in cases involving conflicting judgments and findings of the learned lower Courts, the judgment of first appellate Court being the Court of re-appraisal of evidence, if is based on evidence and logical reasons, shall prevail. In order to appreciate if the impugned judgment of the appellate Court in the case one in hand is based on evidence and logical reasons, the relevant paragraphs of the impugned judgment dated 27.06.2015, passed by the appellate Court, are reproduced here:- "I have given my anxious consideration to the submission made by the parties and perused the available material on the record. It appears that document divorce-deed not produced by the plaintiff for its cancellation and learned trial Court hold that plaintiff in evidence has not been able to produce convincing evidence to establish her assertions made in the plaint.
21. The contention of other side/defendants/respondents is that plaintiff is no more wife of deceased Raheem Bux and divorced her through divorce deed. They also approached to Mukhtiarkar Kotdiji and Union Council Secretary Kumb for obtaining heir ship certificate showing all legal heirs except plaintiff on the basis of divorce deed which was produced by the defendants before the Mukhtiarkar. No doubt initial burden lies upon the plaintiff to produce original divorce deed as primary evidence if she received from the deceased Raheem Bux or defendants for proving the same document false, forged and managed one by the defendants or file any application in court for accepting the Photostat copy of divorce deed as in evidence or move any application for issuance of directions to the defendants if the same original document was in possession of defendants for production in evidence. Admittedly the plaintiff has not done so but the defendants also did not perform their duty. As the same document was produced by them before the Mukhtiarkar Kotdiji for obtaining legal heir ship certificate showing the plaintiff as divorce given by deceased Raheem Bux being a beneficiary of same document, the defendants should have produced the same document in their evidence to prove their contentions/assertions before the court. The non production of the same document by the defendants also shows mala fides on the part of defendants. So far as the plaintiff has relied upon the report of Mukhtiarkar Kotdiji and produced the same report as Ex.24/A and report of Secretary Union Council as Ex.24/B in which no copy of the same was dispatched by the late Raheem Bux for information of divorce, the trial court had completely ignored the same document and not discussed the same in evidence, while appraising the evidence, left the material documents. It is also worth to mention here that the plaintiff has denied in her pleadings that she was never given Talaq by her deceased husband in lifetime. The document was managed one by the defendants. In this respect the admission of the defendants in their averments are available on the pleadings as well as in cross-examination in respect of the divorce deed. The Honourable Superior Court has held in the case law reported in 2010 CLC 661 Karachi as under:- No fact need to be proved in any proceedings which the parties thereto or their agents agreed to admit. Appellate Court ignored the admission of the defendants during the course of cross- examination and perused impugned order which was clearly in violation of provision of Article 113 of Qanun-e-Shahadat, 1984.
22. It is also admitted on record that the suggestions were given to the plaintiff by the defendants counsel in respect of document of divorce deed dated 29.06.2010 to prove their version as the same document is genuine, valid and talaq pronounced by the late Raheem Bux but same document was not brought by the defendants in evidence during conduct of cross-examination of plaintiff, which also shows mala fides on the part of defendants being a beneficiary of the same documents. The burden also shifted upon the shoulders of the defendants being beneficiary.
23. During the evidence, the defendants examined Mst. Reshma for herself as well as Attorney on behalf of sisters/defendants Nos,1, 2 to 4, she has deposed that her father gave divorce to the plaintiff vide divorce deed on 29.06.2010 in presence of witnesses and then on 30.06.2010, her father was died in hospital. She was also cross-examined by the plaintiff counsel and she admitted that stamp paper brought her witness Fida Hussain and the divorce was written on stamp paper by her father. She admitted that her father called the witnesses on mobile phone.
24. She admitted that her father has not called her father and brother at the time of writing divorce deed. She further stated that she had gone with her father in a rent car to give divorce deed to the plaintiff and her father had given divorce deed in the house of Nazeer Kalhoro. I had not seen any person from the family of Nazeer Kalhoro at that time. After giving divorce deed, they returned back to their house. The witness left after signing the divorce deed. It is correct that my father got sick on the same day at 7:00 p.m. that my father expired in hospital at 2:30 or 3:00 night. I do not remember as to when we approached to Mukhtiarkar for their ship certificate, voluntarily says after long time. It is correct that we had given the photostat copy of divorce deed to the Mukhtiarkar. It is correct that I had not mentioned in my chief that we had made the Photostat copy of divorce deed and attested it from Khairpur. She also admitted that one witness of divorce deed Fida Hussain is the husband of her sister. Witness Fida Hussain deposed that on 29.06.2010 Raheem Bux had given divorce to the plaintiff in my presence in writing and that divorce deed bears my signature.
25. During cross-examination, he has deposed as under:- Raheem Bux had made a phone call to me to come there and I reached at 10.00 a.m. When I reached there the defendants and plaintiff Raheem himself were present, he admitted that in the same the father and brother of Raheern Bux were also residing. They were also present in the house; 1 myself had brought the stamp paper. At the time of purchasing the same paper, 1 signed there. That after purchasing the stamp paper, the divorce was given in Khairpur. That we had reached at Khairpur at 10.00. The divorce was given outside the Court in Khairpur. He also admitted that his brother is married with the daughter of Raheem Bux namely defendant No,2 Safia.
26. The evidence of defendants is also material contradictory relating to divorce deed pronounced by the deceased Raheem Bux in presence of witnesses, seems to be managed one in the dubious manner to deprive the plaintiff from the right of inheritance from late Raheem Bux. It is also surprising to note that prior to one day, the death of Raheem Bux, the Talaq was pronounced which also depicts that the same was done at the behest of defendants."
14. For a valid and effective "Talaq" adherence of provisions of section 7 of Muslim Family Laws Ordinance, 1961, is to be made. For the sake of convenience section 7 of the Ordinance ibid is reproduced here: "7.
27. Talaq.--- (1) Any man who wished to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman a notice, in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever, contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.
28. (3)Save as provided in subsection (5) a talaq, unless revoked earlier expressly or otherwise shall not be effective until the expiration of ninety days from the day on which notice under subsection
(1) is delivered to the Chairman.
29. (4)Within thirty days of the receipt of notice under subsection (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
30. (5)If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in subsection (3) or the pregnancy, whichever later, ends.
31. (6)Nothing shall debar a wife whose marriage has been terminated by talaq effective under this Section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.
32. Bare reading of the above provisions of law envisages that Talaq will become effective if it is routed through the union council concerned in accordance with the provisions of Muslim Family Laws Ordinance, 1961. In the case in hand, the plaintiff/respondent Mst. Aasia has categorically denied the alleged Talaq to her by deceased Raheem Bux and her persistent stance is that the alleged talaqnama purportedly executed by deceased Raheem Bux is fake and forged one. The applicants/ defendants, who being daughters of deceased Raheem Bux, would be beneficiary of the alleged talaqnama, who attempted to exclude the plaintiff/ respondent Mst. Aasia from inheritance in the estate of deceased Raheem Bux, have not produced any convincing evidence to substantiate the execution of the alleged talaqnama purportedly executed by deceased Raheem Bux, divorcing the plaintiff/respondent and even no effort was made by the applicants to bring on record the alleged talaqnama, although photostat thereof was admittedly submitted before Mukhtiarkar (Revenue) Kotdiji by one of the applicants namely, defendant No,3 Mst. Reshman, who by making an application, attempted to obtain Heir-ship Certificate from the Mukhtiarkar concerned to the exclusion of the respondent/plaintiff. Even otherwise, for the sake of arguments, for the time being, even if it is believed that there was the alleged talaqnama purportedly executed by deceased Raheem Bux, admittedly the same was not routed through the union council concerned in accordance with provisions of Muslim Family Laws Ordinance, 1961, as nothing has been brought on record to show that the alleged talaqnama was sent to the union council concerned by deceased Raheem Bux and furthermore it is the own case of the applicants that their father deceased.
33. Raheem Bux had allegedly given divorce/talaq to the plaintiff/ respondent on 29.06.2010 through a written Divorce Deed/ Talaqnama and their father had died on 30.06.2010 i,e, on the following day of the alleged talaq to the plaintiff/respondent, which patently does not appeal to a prudent mind on one hand and on the other such a Talaq could not legitimately deprive the plaintiff/ respondent of her inheritance in the estate of the deceased Raheem Bux, for, effectiveness of the Talaq entire exercise was to be done in the manner provided under the provisions of Section 7 of the Ordinance ibid, which provide that a copy of the divorce deed is sent to the union council concerned, which has to issue notice thereof to the wife for holding reconciliation proceedings and on failure thereof the certificate for effectiveness of talaq was to be issued on expiry of 90 (ninety) days and whereas admittedly neither such proceedings were held nor was there any question of such proceedings as deceased Raheem Bux had died within one day of the alleged talaq. Thus, I am of the considered view that the plaintiff/respondent is entitled to inherit the share from the estate of deceased Raheem But according to shariah. The trial Court without applying judicious mind dismissed the suit, filed by the plaintiff/respondent Mst. Aasia vide judgment and decree dated 24.02.2012, which were not sustainable and were liable to be reversed. I am of the humble view that the impugned judgment, passed by the appellate Court, setting aside the judgment and decree of the trial Court, based on evidence and logical reasons shall prevail. Reference can be made to the case of Muhammad Nasir Mehmud and others v. Mst. Rashidan Bibi (2000 SCM R 1013), wherein the Honorable Supreme Court of Pakistan has observed that:- "There is nothing to show that the Appellate Court had misappreciated or misread the material on the record while recording the said finding. In cases in which findings of Courts below are at variance, ordinarily the findings of fact recorded by the Appellate Court are to be preferred In the case of Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617), it was held:-- "If the finding of facts reached by the first Appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as concurrent finding by the lower Appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on record and is supported by logical reasoning, duly taking note of the reasons advanced by the first Court which have been disfavoured in the contrary finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded."
34. In the case of Muhammad Sadiq and 2 others (cited by the respondent's learned counsel) a Division Bench of this Court had held that although the Courts below had differed on the kind of transaction yet in the absence of grounds specified in sections 100 and 115 of C.P.C., it was the finding of the lower Appellate Court which will be held binding and conclusive. In the case of Ghulam Ali (also cited by the respondent's learned counsel) it was held that a finding on a question of fact reached in the first appeal on the basis of evidence on the record was not open to be reversed in revision even if a contrary view was possible on the same evidence. I respectfully follow the rule laid down in the above-quoted judgments and held that in the present case the Appellate Court had properly appreciated the evidence on record and rightly recorded finding of fact on Issue No,3 in favour of the respondents."
35. In the case of Hakim-ud-Din through L.Rs, and others v. Faiz Bakhsh and others (2007 SCM R 870), the Honourable Supreme Court of Pakistan while setting aside the judgment of the learned Lahore High Court, Multan Bench, has held as under: "It is basic and fundamental principle of administration of justice that in case there is a conflict between, the judgment of the trial Court and the First Appellate Court, then normally judgment of first appellate Court is to be given preference over the judgment of Trial Court, unless and until the judgment of the First Appellate Court is based on misreading or non-reading or in violation of the principles laid down by the superior Courts while exercising power by the learned High Court under section 115, C.P.C. In the case in hand, the learned High Court has interfered with in the findings recorded by the First Appellate Court without any justification and logic as mentioned hereinabove. The respondent has failed to prove his case as mentioned above, therefore, substantial justice has been done between the parties in view of judgment of the First Appellate Court, therefore, learned High Court had erred in law to interfere in the findings of act recorded by the First Appellate Court while exercising power under section 115, C.P.C.
15. In view of what has been discussed above, I am of the considered opinion that the findings of the fact rendered by the learned Appellate Court in favour of the respondent/plaintiff Mst. Aasia, after proper appreciation of the evidence, are based on proper reappraisal of the evidence on record, which, suffering from no illegality or jurisdictional defect, do not call for any interference.
36. The learned Advocate for the applicants has also not been able to point any mis-reading or non- reading of the evidence by the Appellate Court, nor has he been able to point out any jurisdictional defect in the impugned judgment dated 27.06.2015, passed by the Appellate Court, attracting the provisions of Section 115 of the Code of Civil Procedure (Act V of 1908). Accordingly, the revision application is dismissed with no order as to costs.