ASIM HAFEEZ, J.----This Civil Revision is directed against consolidated judgment and decree dated 17.07.1988 by learned Additional District Judge Dera Ghazi Khan, whereby two appeals - bearing Civil Appeal No.79/13 of 1988 titled as Mst. Noor Jahan etc. v. Muhammad Ramzan, etc. and Civil Appeal No.17/13 of 1988 titled Khan Muhammad v. Mst Hamida Bibi etc. - against consolidated judgment and decree dated 16.01.1988 - passed in consolidated suits bearing Civil Suit No.582 dated 28.07.1975, for Declaration, titled as Mst. Noor Jahan V.
Muhammad Ramzan etc. and Civil Suit No.583 dated 11.05.1977, for Possession, titled as Muhammad Ramzan v. Khan Muhammad were dismissed and finding of the learned trial court - whereby suit for possess ion of the present petitioners was allowed was reversed and suit was dismissed. The petitioners are aggrieved of said particular finding qua dismissal of suit for possession.
Details of connected Civil Revisions: It is pertinent to mention that Civil Revisions bearing C.R.No.329/1989 and C.R. No.330-D/1989 were also filed against impugned judgment and decree dated 17.07.1988, out of which former one was dismissed for non-prosecution on 03.10.2003 and latter was withdrawn in terms of compromise recorded on 18.05.2009, which compromise was set-aside by this court vide order dated 21.01.2020. As a consequence of re-calling of order dated 18.05.2009 instant Civil Revision stood revived and is decided on its own merits.
2. Narration of Facts : The facts of the case are simple. Present petitioners filed suit seeking possession simplicitor of the property in question, claiming to be legal heirs of deceased Amin-ud-Din, whose estate, comprising of property under reference, was mutated through inheritance mutation dated 04.06.1971 amongst Muhammad Ramzan, Mst. Laifan and Mst. Batoolan - claimed to be the heirs of sister of Amin-ud-Din namely Mst. Aliman, who died in united Indian Sub-Continent - and Mst. Nanhi, widow of Amin-ud-Din. Later on, Muhammad Ramzan also claimed share of Latifan vide Mutation No.38746 of 06.03.1975 and inheritance of Mst. Nanhi through Mutation No.38745 of 06.03.1975. Muhammad Ramzan and family were constrained to file ejectment petition for claiming possession of the property , part thereof was allegedly rented out by Amin-ud-Din. Ejectment petition was dismissed on 14.03.1977, whereafter suit for posses sion was filed. One Mst. Noor Jahan filed suit for declaration claiming that Mst Nanhi and Ramzan son of Ramzani were actually legal heirs of Amin-ud-Din and entitled to the estate of the deceased, and upon demise of Mst. Nanhi, Noor Jahan claimed to be her sole legal heir. The property , in dispute, was allotted to deceased Amin-ud-Din vide P.T.O dated 26.10.1959. Learned trial court consolidated both the suits, framed issues and invited the parties to lead evidence. Upon conclusion of trial, learned trial court dismissed the suit filed by Mst. Noor Jahan and decreed the suit of the petitioners for possession . Out of the judgment of the trial court, two appeals were filed, which appeals were dismissed, and suit of the petitioners was also dismissed, which order of dismissal is subject matter on instant Revision petition.
3. Gist of Submissions: Learned counse l appearing for the petitioners contends that ownership of Amin-ud-Din deceased qua the property was an undisputed fact, and the entitlement of the petitioners to inherit out of the estate of the deceased was also proved, but still learned appellate court proceeded to dismiss suit of possession of the petitioner . Further submits that no evidenc e was available to justifiably declare the property .as `ownerless property'
[escheated property]. Learned counsel took this court through relevant portions of testimony of the witnesses produced, for and on behalf of the petitioners in Civil Revisions C.R.No.329/1989 and C.R. No.330-D/1989 -- he referred to pedigree table of Amin-ud-Din drawn in the plaint filed by Noor Jahan to affirm right of the petitioners to the estate of deceased Amin-ud-Din. In brief, learned counsel averred that relationship of the petitioners, being legal heirs of deceased Amin-ud-Din was established and therefore findings to declare property as ownerless property were erroneous.
4. Arguments Heard. Record perused.
5. Opinion of the Court: Before dissecting the evidence available, it is pertinent to highlight couple of critical facts, giving insight into fragility of the claim of the petitioners. It is an admitted fact that ejectment petition filed by Muhammad Ramzan, predecessor in interest of present petitioner , claiming tenancy of part of the property , was dismissed on 14.03.1977 for want of proving the relationship of landlord and tenant between Muhammad Ramzan and Khan Muhammad, wherein observation was made that. Rent Controller cannot determine the question of title and legitimacy of the documents in respect thereof. Khan Muhammad also claimed right in the property being purchaser from Amin-ud-Din. Notwithstanding this fact, the petitioners filed a suit for possession simplicitor , without claiming declaration qua their entitlement or alleged legal right in the property , being the estate of the deceased Amin-ud-Din, when their entitlement regarding legal title in the property was challenged and disputed. The suit for possession, in these facts, was not maintainable. Reference is made to cases reported as Sultan Mahmood Shah through L.Rs v. Muhammad Din and 2 others (2005 SCMR 1872 ) and Province of the Punjab through Collector , Sheikhupura and others v. Syed Ghazanfar Ali Shah and others (2017 SCMR 1 72). Petitioners have claimed alleged rights in the property on the basis of inheritance Mutations which mutations were not proved through producing revenue record and official witnesses, qua its execution and recording. Petitioners claimed share in the estate of deceased Amin-ud-Din - being Distant Kindered - and were required to prove factum of claimed relationship in accordance with the requirements of Article 64 of Qanun-e- Shahadat Order , 1984 ('Order'), though they utterly failed, No pedigree table was produced, mere reference to a pedigree table drawn in the plaint filed by Noor Jahan, one of the claiman ts of the property , would not be sufficient to establish factum of their entitlement and relationship. Respondent No.3 appeared as DW-7, who had not even alleged in examination in chief with respect to pedigree table in the plaint. DW-7 admitted that pedigree table was not written anywhere. DW- 7 alleged that his father , and father's sisters, namely Latifah and Batoolan were declared as legal heirs of deceased Amin-ud-Din but no evidence was produced. Mere mutation of inheritance was not sufficient to establish ownership. No official witness from revenue department was summoned - it is strange that persons claiming competing interests in the property kept their fight amongst themselves and none of them ventured to produce any official witness, except a witness from settlement department. DW-7 admitted possession of Khan Muhammad of the property , who has also claimed interest in the property . It is astonishing that Khan Muhammad and the petitioners entered into compromise, and as a consequence whereof instant Civil Revision was allowed - which order was re-called later on application under section 12(2) of code of Civil procedu re 1908. This fact also discredit the claims of the parties.
The evidence available on record - though not led by the petitioners but referred to - and testimony of DW-7 was irrelevant, inadmissible and deficient, which cannot be believed to form an opinion qua the relationship of the petitioners with the deceased Amin-ud-Din, as no opinion / evidence was expressed by conduct, qua existence of such relationship, by any member of the family or person having special means of knowledge. In terms of Article 64 of the Order , the conduct to be relevant must be of some member of the family or otherwise having means of special knowledge, which is lacking. And mere random statements by witnesses was not sufficient to prove relationship. It is apt to refer to the ratio of decision in the case of Jaleb Khan and 9 others v. Mst. Subhani and another ( 1999 SCMR 2502 ), relevant portion of which is reproduced hereunder:- "The provisions of Article 64 of Qanun-e-Shahadat, 1984 were referred to by the learned Single Judge to hold that when the Court has to form an opinion as to relationship of one with another , the opinion, expressed by the conduct as to the existence of such relationship, of any person, who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact. Reference was made to law laid down by this Court in Shah Nawaz and another v. Nawab Khan (PLD 1976 SC 767) that "the opinion expressed by conduct as to the existence of a particular relationship and not merely a statement as to that relationship". In other words, according to the learned Single Judge, under Article 64 (ibid) when the Court to form an opinion as to the relationship of one person to another , it is the opinion expressed 'by conduct' as to the existence of that relationship of any person whether member of family or otherwise who has special means of knowledge on the subject, is a relevant fact".
[Emphasis supplied] Hence, requirements of Article 64 of the Order (Section 50 of erstwhile Evidence Act 1872) were not meta Learned counsel has not appreciated that eviden ce available failed to prove relationship, as the witnesses were neither asked about their source of information about relationship, to be proved, and proof of relationship was left to chance or cross-examination. Reference is made to the ratio of decision in the case of Ghulam Muhammad and another v. Allah Yar and others [PLD 1965 (W. P) Lahore 482], relevant portion whereof is reproduced hereunder as:- "4. As to the oral evidence of the five witnesses for the defendants, it has been argued that none of them is a competent witness to depose about the relationship between the parties as required by section 50 of the Evidence Act, 1872. According to this section, when the Court has to form an opinion as to the relationship of one person to another , the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of family or otherwise, has special means of knowledge on the subject, is a relevant fact. It is the opinion expressed by conduct, of any person who has special means of knowledge about the relationship, which is relevant. The opinion of a competent witness must be "expressed by conduct" an in case it is not so relevant based on conduct it would be irrelevan t. The two illustrations to this section full bring out the import of these significant words in the section. According to illustration (a), the fact that A and B were usually received and treated by their friends as husband and wife, is relevant.
Similarly in illustration (b), the fact that A was always treated as the legitimate son of B by the members of the family , is relevant. In these cases the opinion of the friends and the members of the family who have the special means of knowledge is relevant because it is based on the conduct and treatment of the persons concerned. The opinion as expressed by conduct is evidence or in other words evidence of the conduct can be given in evidence and from that conduct given in evidence, the Court is to judge the result. Generally speaking the opinion cannot be a substitute for evidence of facts in issue and is irrelevant. But this section is one of the few exceptions to the general rule. It is, therefore, all the more necessary that in order to lay the foundation for the admission of evidence of this kind all the necessary ingredients of this section must be brought out positively . Mere rumour or gossip that A is related to B unaccompanied by conduct on their part or on the part of their friends and relations is a mere hearsay and hence inadmissible as a piece of evidence to prove the issue. Sectio n 50 enacts a rule different from the law in England where the evidence of general reputation is admissible to establish the fact of the parties being married. In this country the evidence is limited to the opinion as expressed by cond uct and there is no other section in the Evidence Act under which the evidence of general reputation can be received in proof of relationship.
In Lakshmi Redi v. Venkata Redf (AIR 1937 PC 201) after reference to sections 32 and 50, their Lordships of the Privy Council observed that the Indian Evidence Act does not contain any provision making the evidence about general reputation ' admissible as proof of relationship. This case is an illustration of the principles contained in section 50 and the following passage in that judgment is of great practical impor tance to the Courts in admitting evidence of this nature:- "The learned trial Judge added to the difficulty of estimating the evidence by permitting witnesses to give their testimony as to matters which could not be within their own knowledge without first stating the source of their information. Time. trouble and expense would have been saved had Cl. (5), S. 32, Evidence Act, been properly applied and witnesses required to prove the statements relied upon with proper particularity and with due attention to the requirement that the person making the statement had special means of knowledge. In a number of cases witnesses were allowed simply to enuncia te from the witness box the proposition which they desired to prove. Thus one witness aged 33 was allowed to say for the plaintiff (P . W. 7): "Appanna was the father of Chinna V enkatana." And another aged 45 for the defendants (D. W . 3): `I did not see Lakshmi Reddi. Venkata Reddi is the father of Lakshmi Reddi. Veera Reddi is the father of Venkata Reddi.'
It cannot rightly be left to time or chance or cross-examination to disclose whether a statement has any basis which could give it value or admissibility . In his judgment the learned trial Judge was at times duly scornful of such evidence but it would have been fairer and less troublesome to have taken the evidence in accordance with the Act. Their Lordships are of opinion that the evidence adduced by the defendants is plainly insufficient to establish their relationship, to Nagi Reddi."
[Emphasis supplied]
6. The alleged sister of Muhammad Ramzan, namely Mst. Batoolan, being pertinent and best witness to establish conduct of a family member , was not produced as a witness, leading to adverse inference in terms of Article 129(g) of the Order . DW-7 appeared as witnesses, whose testimony was inadequate to prove factum of relationship - claimed to be Distant Kindered with deceased Amin-ud-Din. Mere reliance on inheritance Mutations would neither establish ownership nor evidence of conduct to prove relationships. In essence, the dispute was between two claimants, each produced self-serving evidence to substantiate alleged claim(s) without appreciating that evidence produced by one set of witnesses, claimed to be supporting, was averse to the interests of other set of claimants.
Learned counsel referred to evidence of PW-1, PW-2, PW-3, PW-4, PW-5, DW-1 and DW-2 - some portions of their evidence were picked while overlooking other material portions destroying the case of the petitioners. Petitioners cannot be permitted to resort to pick and choose for relying merely on that part of the evidence favouring them and overlook detrimental evidence, such piecemeal appraisal is not permissible.
7. The judgment passed by the appellate court, and in particular findings against the petitioners are apt and do not call for any interference, in the exercise of revisional jurisdiction when no illegality or irregularity is found. In view of the evidence available, property was rightly declared as ownerless property - escheated property - and which vests in the Government of Punjab in terms of Article 172 of Constitution of Islamic Republic of Pakistan, 1973.
8. In view of the above, instant Civil Revision is without any merit and same is, therefore, dismissed. No order as to costs. Of fice is directed to deliver copy of this judgment to Senior Member Board of Revenue, Punjab.