SHAHID BILAL HASSAN J. Succinctly, on 27.11.1979, the present appellants instituted a suit for possession against the respondents with the assertion that suit land, mentioned in Para No.1 of the plaint, was transferred to one Malooka son of Dalmeer, who died issueless in the year 1969.
Inheritance mutation No.469 was attested on 29.06.1971 in favour of his widow namely Mst.
Budhi/respondent No.1; the said mutation was stated to be illegal as the appellants and respondents No.2 & 3 were stated to be collaterals of the said Malooka and entitled to the residue after settling the share of the said widow. A pedigree table was drawn in Para No.2 of the plaint. The mutation was stated to have been taken up and decided in the absence and without notice to the said collaterals; hence, a declaratory decree with possession was sought for.
2. The suit was only contested by the respondent No.1 who admitted that Malooka was the last male owner of the suit land and that he died issueless in the year 1969; however, it was pleaded that the respondent No.1 being the widow was the only legal heir and as such was entitled to the entire estate. It was denied that the appellants and other respondents were the collaterals of the said Malooka; moreover, the pedigree table was denied.
The divergence in pleadings of the parties was summed up into issues as follows:-
1. Whether the present suit is not maintainable in its present form? OPD
2. Whether the suit is not competent? OPD
3. Whether Civil Court had no jurisdiction to try this suit? OPD
4. Whether the suit is not properly valued. If so, its effect? OPD
5. Whether plaintiffs are estopped to file the suit? OPD
6. Whether Mutation No.469 dated 29.06.1971 sanctioned by AC-II Lahore is void, inoperative, illegal.
If so, to what effect? OPD
7. Whether suit is within limitation? OPP
8. Relief.
Evidence of the parties was recorded and on conclusion, the learned trial Court vide judgment and decree dated 18.02.1983 dismissed suit of the appellants. The first appeal preferred by the appellants was dismissed on 05.12.1985. It is pertinent to note here that during pendency of the appeal before the first appellate Court, the appellants filed an application seeking permission to produce additional evidence but the same was dismissed for the reasons rendered in the said judgment. The appellants being aggrieved preferred R.S.A. in question and on 06.07.2001 this Court set aside the judgment and decree dated 05.12.1985 ibid and ordered to remand the case to the first appellate Court with direction:- 'Learned first appellate court shall then proceed to take the document accompanying the application for evidence subject to any objection to be raised by the respondent-party and thereafter provide an opportunity to the respondent party to lead evidence in rebuttal and then to decide the matter taking the entire evidence on record in consideration.'
3. The respondents being dissatisfied filed C.P.No.2435-L/01 before the Hon'ble Supreme Court of Pakistan, which was converted into an appeal and allowed on 23.11.2001 and R.S.A. was directed to be decided by this Court in the light of the said judgment dated 23.11.2001. On 12.02.2007, this Court again heard the appeal and allowed the same while announcing the judgment on 01.03.2007 whereby set aside the impugned judgments and decrees passed by the learned Courts below, consequent whereof the suit filed by the appellants was decreed as prayed for.
4. The respondents feeling aggrieved of the said judgment and decree agitated the matter before the Apex Court of the country through Civil Appeal No.1071 of 2007, which was accepted on 27.02.2014 and case was remanded again to this Court with the following observation:- '2. After hearing the learned counsel for the appellants and the respondents we noted that the High Court had examined and given effect to the pedigree-table without the same being formally introduced in evidence through a witness. The learned counsel for the parties agreed to the remand of the case to the High Court so that the said document may be duly exhibited in evidence through a witness, with an opportunity to the appellants to cross examine the witness.
The learned counsel for the respondents, however, submitted that since the respondents have been deprived of their share in property for the last 40 years the appeal be decided by the High Court expeditiously.
3. Thus the appeal is allowed. The impugned judgment and decree are set aside and Regular Second Appeal No.141 of 1987shall be deemed to be pending; the same be decided by the High Court within a period of three months in the light of above direction.'
5. After remand, on 09.09.2015, in view of the provisions of Order XLI Rule 28 CPC, the matter was remitted to the learned Senior Civil Judge, Lahore by keeping this appeal pending here for a sole purpose to provide the parties an opportunity to bring on record the said document in accordance with the law through a witness if still it is required and to cross-examine the said witness by the other side. It was further observed that if the party, who had earlier brought on record such document, does not want to enter into such exercise, the statement of some competent person to that effect be recorded. This exercise was ordered to be completed within sixty days from the appearance of the parties before the learned Senior Civil Judge, Lahore, who (the parties) were directed to appear before the said court on 21.09.2015. In pursuance thereof, the learned Senior Civil Judge, Lahore recorded additional evidence led by the appellants and forwarded the proceedings to this Court on 21.04.2016. On 19.02.2018, learned counsel for the respondents/defendants submitted that his clients have a right to lead rebuttal evidence against the additional evidence, which has already been recorded. Thus, in view of the said submission, this Court ordered:- 'In view of the above development, the office will refer the relevant record immediately to the learned Senior Civil Judge (Judicial), Lahore, who will record rebuttal evidence of the respondents/defendants on 14.03.2018 and if on account of any unavoidable circumstance, the evidence could not be completed/recorded, then the case would be adjourned to 21.03.2018 when no further opportunity would be provided to them. It is, however, clarified that if the learned Presiding Officer is found to be on leave on the said dates, in that eventuality, such proceedings will be completed on the very next day of his availability. The parties are directed to appear before the learned Senior Civil Judge (Judicial), Lahore on 14.03.2018, who after completion of proceedings will remit the file to this Court before the next date of hearing. Adjourned to 04.04.2018.'
After recording evidence in rebuttal i.e. evidence of D.W.6, the learned Senior Civil Judge (Judicial), Lahore transmitted the proceedings, which have been made part of the file.
6. Heard.
7. It is stance of the appellants that inheritance mutation No.469 attested on 29.06.1971 in favour of widow of Malooka namely Mst. Budhi/respondent No.1 is illegal as the appellants and respondents No.2 & 3 are collaterals of the said Malooka and are entitled to the residue after settling the share of the said widow; however at trial stage and before the learned appellate Court they could not substantiate their stance by leading cogent and confidence inspiring evidence because the pedigree table produced by them was not establishing their relationship to the propositus making them residuary.
However, after remand by the Apex Court, the pedigree tables sought to be produced as additional evidence was brought on record as Ex.P8, Ex.P9 and Ex.P10 through statements of witnesses P.W.1 and P.W.2 in the shape of affidavits (Ex.P7 and Ex.P11) and P.W.2 was cross examined whereas the P.W.1 namely Muhammad Rafique did not appear before the Court concerned for facing the cross examination after recording his examination in chief on 12.03.2016. In rebuttal, the statement of D.W.6 was recorded by the respondents. It has emerged on record, during cross examination on P.W.2, recorded after remand from the Apex Court of the country, that the pedigree tables were got issued from the concerned authorities in India in the year 1985 through brother of Muhammad Rafique namely Abdul Rehman and as the same was in Indian language, so it was got translated by the said Abdul Rehman; meaning thereby the said person namely Abdul Rehman was an important witness so as to substantiate the stance of the appellants but he was not produced in the witness box, for the reasons best known to them, so adverse presumption arises against the appellant in view of Article 129(g) of the Qanun-e-Shahadat, 1984 that had he appeared in the witness box, he would not have supported the stance of the appellants. Even, the appellant did not produce the passport or any other documentary evidence of said Abdul Rehman to show and prove that he travelled from Pakistan to Indian from such and such date in the year 1985 despite the fact that allegedly he travelled twice to India: firstly for obtaining pedigree tables and secondly for getting the same translated. Moreover, P.W.2 namely Fazal Din is not party to the lis rather one Fajroo has been arrayed and no exertion has been made by the said Fazal Din that if his alias was Fajroo, he should have got the same corrected/incorporated in the plaint as such.
The deposition of P.W.1 cannot be considered and appreciated because he disassociated the proceedings and did not face the cross examination. Furthermore, the pedigree tables adduced by the appellants are different from one another, because pedigree table in plaint shows Malooka as single son of Dalmeer, the pedigree table attached with the suit discloses Jasmal as brother of Malooka besides Budhi as widow and the pedigree table allegedly obtained from India through Abdul Rehman, brother of Muhammad Rafique, shows four sons of Dalmeer namely Malooka, Jasmal, Mazari and Ameer; thus, the same cannot be relied upon, because it casts aspersions about their authenticity especially when Abdul Rehman, who purportedly went to India for obtaining pedigree table and its translation was not produced in the witness box and even P.W.1 appeared before the trial Court deposed that he has no knowledge of facts and circumstances of this case and statement of P.W.2 before the learned trial Court also remained the same.
8. In addition to the above, Article 96, Qanun-e-Shahadat, 1984 deals with presumption as to certified copies of foreign judicial records, which reads:- 'Presumption as to certified copies of foreign judicial record.-(1) The Court may presumed that any document purporting to be a certified copy of any judicial record of any country not forming part of Pakistan is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Federal Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records.
(2) An officer who, with respect to any territory or place not forming part of Pakistan, is a Political Agent therefore, as defined in section 3, Clause (40, of the General Clauses Act, 1897 (X of 1897), shall for the purposes of clause (1), be deemed to be a representative of the Federal Government in or for the country comprising that territory or place.'
However, in the present case, the documents Ex.P8 and Ex.P9 are not of judicial record and even the same do not bear any certificate as required under Article 89(5) of the Qanun-e-Shahadat, 1984, which provides:- '(5) public document of any other class in a foreign country, -- by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a notary public, or of a Pakistan Consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.'
In this view of the matter, the documents brought on record as Ex.P8 and Ex.P9 cannot be said to have been duly obtained in accordance with law and cannot be relied upon for decision of a matter with regards to inheritance. In judgment reported as Haji Sultan Ahmad through Leal Heirs v. Naeem Raza and 6 others (1996 SCMR 1729), the Apex Court of the country held:- '5. From the above discussed legal position, it is quite obvious that the concurrent finding recorded by the Courts below cannot be interfered with by the High Court while exercising jurisdiction under section 100, C.P.C. how so erroneous that finding may be, unless such finding has been arrived at by the Courts below either by misreading of evidence on record, by ignoring a material piece of evidence on record or through perverse appreciation of evidence.'
Moreover, in judgment reported as Ahmad and others v. Allah Diwaya and others (1998 SCMR 386), it has categorically been held that:- '2. In support of the above petition Mr. Shaukat Ali Mehr, learned Advocate Supreme Court for the petitioners, has contended that the Court below have relied upon pedigree-table, Exh.P10 and Exh.D4, without examining any witness in support thereof to explain the same. To reinforce the above submission he has relied upon the case of Muhammad Hussain and others v. Muhammad Khan (1989 SCMR 1026) and the case of Muhammad Naeem and others v. Ghulam Muhammad and others (19945 SCMR 559), in which been held that the contents of a pedigree-table are to be proved and mere exhibition of the same as a document is not sufficient.'
Further reliance in this regard is placed on Mst. Mangti v. Mst. Noori and others (1995 CLC 210- Lahore).
9. Pursuant to the above, when the appellants have failed to establish their relationship with Malooka, it has rightly been concluded by the learned Courts below that they have no locus standi.
The question of making up deficiency of court fee, while construing law on the subject, has also rightly been adjudicated upon.
10. The crux of the discussion above is that the appeal in hand, being meritless, fails and the same is hereby dismissed with no order as to the costs.