SHAKEEL AHMAD, J. This revision petition is directed against the judgment and decree dated 11.12.2012, passed by the learned Additional District Judge-VII, Abbottabad, whereby, Civil Appeal No.88/13 of 2011 filed by the respondents No.1 and 2 against the judgment and decree dated 13.07.2011 passed by Civil Judge-IX, Abbottabad in Civil Suit No.1390/1 of 2007, was Allowed and the judgment and decree dated 13.07.2011 of the learned trial Court was set aside and the suit was decreed in favour of the respondents as well as proforma respondents/defendants.
2. The facts of the case, in brief, are that respondents No.1 and 2/plaintif fs, Banaras Khan and Nadeem Khan instituted a suit for declaration to the effect that plaintiffs alongwith proforma defendants 11 to 19 being legal heirs of Muhammad Ayub Khan son of Arsalah Khan are entitled to inherit the legacy of their predecessor.
They further prayed for grant of mandatory injunction seeking directions against official defendants/ respondents for attestation of inheritance mutation of their deceased father, namely, Ayub Khan, qua the property bearing 'khasra' No.3509, 3512, 3510, 3511, 3142, 3306, 3416, 3756, 3757, 3758, 3419, 3740, 3749, 8835, 3829, 3831, 3832, 3834, 3850 and 3833, situated at Mauza Dhamtaur or whatever property was owned by him, in favour of respondents No.1 and 2/plaintiffs and respondents No.3 to 11/proforma defendants, being his sons, daughters and widow. During pendency of suit, the present petitioners were also impleaded as defendants in the suit, being legal heirs of Ameer Khan, step brother of Ayub Khan and amended plaint was filed by the plaintiffs. After putting their appearance before the trial Court, the petitioners/defendants contested the suit by filing their written statement, wherein, they raised legal and factual objections qua the entitlement of the respondents in the legacy of Arsallah Khan, their predecessor and denied their relationship with Ayub Khan and asserted that in fact plaintiffs and proforma defendants/respondents are offspring of Faris Khan son of Haibat Khan, resident of Mansehra, who posed themselves to be sons of Ayub Khan and grandsons of Arsala Khan, just to grab the legacy of Arsala Khan, for which a case vide FIR No.281 was registered against Faris Khan under sections 419/420/468/471 PPC, however, proceedings in the said criminal case stood abated against him due to his death. They further asserted that Ayub Khan had disappeared in his childhood when he was studying in class 6th and his whereabouts were not known till to-date and thus, the inheritance mutation of the legacy of Arsala Khan was rightly refused to the respondents by the revenue officials and was rightly attested in favour of the petitioners. From the divergent pleadings of the parties, the following issues and additional issues were framed and parties were directed to produce their evidence.
ISSUES
1. Whether the plaintiffs have got the cause of action?
2. Whether the suit is competent in its present form?
3. Whether the plaintiffs are estopped to sue?
4. Whether the plaintiffs and proforma defendants No.5 to 13 are legal heirs of deceased Muhammad Ayub son of Arsalah Khan?
5. Whether defendants No.1 to 4 are bound by law to enter and attest inheritance mutation of Muhammad Ayub in favour of plaintiffs and proforma defendants being legal heirs?
6. Whether the plaintif fs are entitled to the decree as prayed for?
7. Relief.
ADDITIONAL ISSUES 1-A) Whether suit of the plaintiff is based on malafide and real defendants No.5 to 10 (of amended plaint) are entitled to special compensatory cost?
2-A) Whether real defendants No.5 to 10 (of amended plaint) are refusing the status of plaintiffs and proforma defendants No.11 to 19 (of amended plaint) being legal heirs of Muhammad Ayub son of Arsalah Khan for grabbing his legacy?
3-A) Whether real defendants No.5 to 10 (of amended plaint) are the legal heirs of Muhammad Ayub and plaintif fs and proforma defendants have no nexus with him being the offspring of Faris son of Haibat belonging to district Mansehra?
3. In order to prove their claim, respondents/plaintiffs produced six witnesses, while the petitioners/defendants also examined six witnesses in support of their contentions. During evidence, plaintiffs produced Record Clerk NADRA as PW-1, who produced record pertaining to registration of Muhammad Ayub and exhibited his CNIC as Ex.PW 1/1, Banaras Khan, respondent No.1 appeared as PW-2 and produced 'Fard Jamabandi', death certificate of his father Muhammad Ayub, pictures of his grave as well as grave of Ameer Khan and 'Iqrar Nama' qua marriage of Muhammad Ayub as Ex.PW 2/1 to Ex.PW 2/3; Arshad Gul, Adalat Khan, Aurangzeb as PW-3, 4 and 5, while, Secretary Union Council, Dhamtaur was examined as PW-6, who produced record of death certificate and statement of Zulfiqar Khan son of Muhammad Ayub on Oath as Ex.PW 6/1 and Ex.PW 6/2 and application for issuance of death certificate as Ex.PW 6/3. On the other hand, Barkat Khan, petitioner appeared as DW-1, who produced attested copies of criminal as well as civil litigations as Ex.DW 1/1 to Ex.DW 1/4 and also examined Sultan Muhammad (DW-2), Munsif Khan (DW-3), Mirdad Khan (DW-4), Zardad Khan (DW-5) and Babar Ejaz as (DW-6) in support of his claim. In order to determine the blood relationship between the parties, DNA of Banaras Khan respondent No.1 and Basharat Khan, petitioner No.2 got conducted through appointment of Mr. Zafar Iqbal, Advocate as local commission, from Government of Pakistan Institute of Biomedical and Genetic Engineering (IBGE), Islamabad and the result thereof was received in negative, wherein, they both were not found cousins inter se.
4. Consequently, after hearing the arguments, the learned trial Court dismissed the suit of the respondents/plaintiffs vide judgment and decree dated 13.07.2011. Not contented with the same, the respondents No.1 and 2 approached the learned appeal Court by filing Civil Appeal No.88/13 of 2011, which was allowed by setting aside the judgment and decree of the learned trial Court and suit of the plaintiffs/respondents was decreed and they were held to be the legal heirs of Muhammad Ayub son of Arsalah and entitled to inherit the legacy of Muhammad Ayub, as per their legal shares, vide judgment and decree dated 11.12.2012. Hence, this revision petition.
5. I have considered the mosaic arguments put forth by the learned counsel for the parties and perused the record of the case minutely .
6. A perusal of record reveals that originally the suit property belongs to Arsalah Khan, who had two sons, Ameer Khan was from first wife, while, Muhammad Ayub Khan was from second wife, as such, they were step brothers inter se. The present petitioners are legal heirs of Ameer Khan and the respondents claimed to be legal heirs of Muhammad Ayub Khan. The respondents/plaintiffs, who posed themselves to be sons of Muhammad Ayub Khan, filed suit for declaration and mandatory injunction against the petitioners praying therein that they being legal heirs of Muhammad Ayub Khan are entitled to his legacy and the revenue officials are bound to enter and attest inheritance mutation in their favour in respect of the suit property. The defendants/petitioners denied the assertions of the respondents/plaintiffs on the ground that in fact respondents are not the legal heirs of Muhammad Ayub rather they are offspring of one Faris Khan son of Haibat Khan, resident of Mansehra. The contentions of the petitioners are merely based on oral assertions and not supported by any cogent, reliable and trustworthy evidence or documentary evidence. On the other hand, the respondents No.1 and 2 have produced documentary evidence in the Court in support of their claim. The evidence of the witnesses produced by the petitioners in support of their stance, namely, Sultan Muhammad (DW-2), Munsif Khan (DW-3), Mirdad Khan (DW-4), Zardad Khan (DW-5) is based on hearsay evidence as they admitted in their cross-examinations that they heard from general public and the petitioners that Muhammad Ayub was not the son of Arsallah Khan rather he was Faris Khan son of Haibat Khan, Swati, resident of Mansehra. This assertion/deposition of DW 3 to 5 clearly suggests that whatever they deposed/stated is based on the information given to them by someone else. It is by now settled that statement which is merely hearsay can be safely ignored. In this behalf, reference may be made to the cases reported as 'Nazar Khan V. Mst. Hassan Begum and another' (2013 MLD 913 (SC AJ&K) and 'Mujeeb ur Rehkan V. Rehana Bibi through attorney and 8 others' (2020 YLR 722). No doubt, the DNA result qua ascertainment of relationship of the parties inter se was received in negative and petitioner No.2 and respondent No.1 were not found cousins inter se because their fathers were step brothers inter se.
Even otherwise the report of the DNA could not be considered as conclusive proof to establish or discard a relationship between the parties being highly cryptic and weak evidence, as such, no reliance could be placed on it in presence of documentary and trustworthy oral evidence produced by the respondents. It seems that petitioners' only hope to grab the legacy of predecessor of the parties namely Arsala Khan was dependent on DNA test and nothing else. The learned appeal Court after properly appreciating the evidence on record rightly refused to accept it on merit on the basis of overwhelming documentary evidence produced by the respondents in support of their claim.
7. In rebuttal, the petitioners also produced Babar Ejaz (DW-6) to prove that Ayub Khan is in fact Faris Khan but his statement is not confidence inspiring, firstly, because he is not resident of village Ahel Mansehra but he is son of Ex-Patwari of Mauza Ahel and secondly, he had not seen him at the occasion of attestation of a mutation bearing No.1717 before Tehsildar. However, his statement is also in conflict with the statement of his father recorded on 06.03.1999 in the criminal case. The petitioners could not produce even a single witness from village Ahel to substantiate their claim. It is worth to mention here that Sultan Muhammad (DW-2) had earlier appeared in criminal case lodged against Ayub Khan vide Crime report No.281/97 and recorded his statement before the Court as PW-4, wherein, during cross examination, he categorically admitted in clear terms that Ayub Khan is son of Arsala Khan. The said record of criminal case was duly produced and exhibited by the petitioners. The relevant portion of cross-examination of DW-2 in criminal case is reproduced below: "The name of the father of accused is Arsalah Khan. He has two sons namely Ameer Khan and Ayub Khan.
Arsallah had two wives one has died prior to my memory and the name of second one was Mst. Mero. It is correct that Ayub Khan was from the said Mst. Mero. It is also correct that when Ayub Khan was recovered and brought back to his house, Mst. Mero claimed him to be her son Ayub Khan. It is also correct that the present accused was brought up in the same house of Mst. Mero Jan. It is correct that later on his marriage was arranged in the family and he was one of the legal heirs of the Arsalah Khan. It is also correct that the children of the present accused are married in the family of Arsalah Khan."
Thus, in view of above, the petitioners' own witness in his earlier statement in unequivocal terms has established that Ayub Khan was son of Arsala Khan and remained in village with her mother, Mst. Mero Jan and also contracted two marriages.
8. The respondents/plaintiffs in order to establish their claim have produced the record from NADRA pertaining to CNIC of Ayub Khan as Ex.PW 1/1 through Manzoor Hussain, Record Clerk, NADRA, Abbottabad, which was issued on 07.07.2003. Banaras Khan, respondent No.1/ plaintiff appeared as PW-2, who stated that Muhammad Ayub and Amir Khan, both were step brothers, and Ameer Khan in order to deprive his brother from the property of his father, had created a false and concocted story/plan that Ayub Khan was not son of Arsala Khan on the pretext that his brother had disappeared in his childhood. He also produced 'Iqrar Nama' (Ex.PW 2/3) pertaining to marriage of his father, Ayub Khan in the year, 1965 and 1977 with Mst. Zareena and Mst.
Sajida and stated that his father spent his entire life in village Choona. PW-3 Arshad Gul, brother of Mst.
Sajida and PW-4 Adalat Khan confirmed in their statements that their sisters were married to Ayub Khan son of Arsalah Khan resident of Choona, Abbottabad and PW-5 also supported the stance of PW 4 in this respect. All these P.Ws proved that Ayub Khan had contracted two marriages in village Choona in his life time and death of Ayub Khan was also recorded in the record of Union Council Dhamtaur, which was produced by PW-6, Muhammad Zafar, Secretary Union Council as Ex.PW 6/1, which shows that he died on 10.10.2006. Perusal of all these documents reflect that name of the father of Ayub Khan was recorded as Arsala Khan. PW-2 also produced photographs of graves of his father Ayub Khan and uncle Amir Khan as Ex.PW 2/2, whereon name plates of the deceased were affixed, which also reflects the same position. The petitioners have failed to cross-examine PW-2, PW-3, PW-4 and PW-5 on these particular material points and even they have not raised any objection on exhibition of 'Fard Jamabandis' Ex.PW 2/1, Ex.PW 2/2 and Ex.PW 2/3. As the assertions of the respondents qua paternity of Ayub Khan was denied by the petitioners, the burden to prove that Ayub Khan was not the son of Arsala was shifted to them and they failed to discharge this burden through cogent, reliable and confidence inspiring evidence. The record reflects that proceedings in criminal case were stopped by the learned Judicial Magistrate vide order dated 26.04.2006, when accused Ayub Khan alongwith his counsel appeared before the Court and P.Ws despite repeated summons and NBWAs failed to appear before the Court.
9. Last but not least, the petitioners have invoked revisional jurisdiction of this Court under section 115 CPC, which cannot be pressed into service unless it is a case of jurisdictional defect or impugned judgment is the result of misreading or non-reading of evidence on record. Both the Courts are at variance, however, the conclusion drawn by the learned Appeal Court is correct and based on proper appreciation of evidence produced by both the parties. The learned Appeal Court had the jurisdiction to adjudicate upon the matter brought before it. In my view the judgment rendered by the learned Appeal Court is based on sound reasoning. No illegality has been established to have been committed by the learned Appeal Court in exercise of its jurisdiction, which could render the decision without jurisdiction or without lawful authority . Consequently , no case has been made out for exercise of jurisdiction under section 115 CPC, which could justify interference in the findings recorded by the learned Appeal Court.
10. For what has been discussed above, the revision petition being without any substance is hereby dismissed with no order as to 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.