At the outset, learned counsels stated that Civil Revision No.731/2009 is separate and independent petition, and without causing any prejudice to the merits thereof, instant revision petition, bearing C.R.460/2009, can be decided.
Trajectory of the case:
2. Civil Revision throws challenge to concurrent decisions, whereby petitioner's Civil appeal No.66/14 of 2001/20082014 was dismissed vide judgment & decree dated 24.02.2009 and judgment and decree, dated 17.09.2001, of learned trial court was maintained, in terms whereof suit for declaration and permanent injunction by petitioner's mother - petitioner, being minor, at that point in time, was sued through her mother and impleaded as second plaintiff - was dismissed.
Factual statement:
3. Petitioner claimed rights based on inheritance mutation No.1110 dated 26.09.1993 and seeks reversal / setting-aside of inquiry report dated 16.01.1994, noting adverse observations against mutation No.1110.
Facts of the case, essential for adjudication of Civil Revision, are that petitioner claimed to be the daughter of deceased, Jalal alias Jallu ('Jalal') from Mst. Talhian Bibi - petitioner's mother, who was the first plaintiff and died during pendency of the proceedings before the trial court - for the purposes of claiming share in the estate of deceased Jalal. Inheritance mutation was recorded and sanctioned in favour of the first and second plaintiff on 26.09.1993, which mutation was subjected to inquiry by the revenue officer vide order of 24.12.1993. Suit was filed on 27.01.1994, which was contested by respondent No.4 - daughter of predeceased sister of Jalal.
Fundamental controversy, in the light of pleadings, was whether the petitioner was daughter of deceased Jalal or Sikandar Hayat - uterine brother of the Talhian Bibi, mother of the petitioner - and what was the sect of the deceased Jalal at the time of his death. Upon framing of issues - issue Nos.1 and 2 are relevant for the purposes of determination of controversy - parties were directed to lead evidence and upon completion of trial suit, suit was dismissed. Petitioner unsuccessfully filed appeal, Hence, this Civil Revision.
Submissions by counsel for Petitioner.
4. Learned counsel for the petitioner opened arguments by submitting that courts have ignored the relevance and evidentiary effect of the documents Exh.P-3 - Copy of birth certificate of petitioner -, Exh.P-8 - Copy of birth certificate of Zubeida Parveen, daughter of Sikandar - and Exh.P.12 - School leaving certificate of the petitioner. Submits that Exh.P-3 and Exh.P-12 established parentage of petitioner as daughter of Jalal. Further submits that copies of Register of Births, Union Council, were produced by the Respondent No.4, which demonstrated that Sikandar has four daughters - evident from Exh.D-4, 5, 6, & 8 - and petitioner was not one of them.
Learned counsel submits that to prove relationship of petitioner with Jalal, being his real daughter, Sikandar Hayat - uterine brother of petitioner's mother - appeared as witness - PW.1 - and the evidence led fulfil requirements of Article 64 of the Qanun-e-Shahadat Order 1984. Learned counsel read some portions of the evidence of PW-1. Adds that PW.1 appeared as petitioner's next friend, since petitioner was minor. Learned counsel emphasized that respondent No.1, who appeared as witness, DW.1, admitted that Sikandar has four daughters, which per se establish that petitioner was not the daughter of Sikandar, but Jalal. Learned counsel stressed that in terms of Article 128 of Qanun-e-Shahadat Order, 1984, since birth of the petitioner happened during subsisting marriage of Talhian Bibi with Jalal, therefore conclusiveness of the presumption qua birth and legitimacy of parentage stood established. Learned counsel submits that application was filed before this Court, bearing C.M No.1/C of 2017 for producing additional evidence through arranging DNA testing, which mechanism is in vogue for determining the question of disputed parentage. Requests that application be granted. Following decisions are referred to support submissions, reported as "ABDUL LATIF. VS. ADDITIONAL DISTRICT JUDGE, KASUR and 4 others" (2016 CLC 1553), "NAZIM- UD-DIN and others. VS. SHEIKH ZIA-UL-QAMAR and others" (2016 SCMR 24), "SYED SHARIF UL HASSAN through L.Rs. VS. HAFIZ MUHAMMAD AMIN and others" (2012 SCMR 1258), "RAFIQUE AHMED. VS. ASHOK KUMAR and 5 others" (2017 CLC 317), "MUHAMMAD RAMZAN. Vs. THE STATE"
(PLD 2007 Karachi 1), "COMMISSIONER MULTAN DIVISION, MULTAN and others. VS. MUHAMMAD HUSSAIN and others" (2015 SCMR 58) and "F.M.C. UNITED (PVT.) LTD. VS. P.O.P" (2009 PCr.L.J.
1319), and "SHARAFAT ALI ASHRAF. VS. ADDITIONAL DISTRICT JUDGE, BAHAWALPUR and 3 others"
(2008 SCMR 1707), and "GHULAM ZOHRA & 8 others. Vs. NAZAR HUSSAIN (deceased) through his legal heirs" (PLJ 2007 SC 400).
Submissions by counsel for Respondent No.4.
5. Conversely, learned counsel for respondent No.4 submits that petitioner failed to discharge onus to prove factum of relationship, which failure led to the passing of concurrent decisions. Submits that Sikandar, PW.1, appeared as next friend of the petitioner, whose evidence is inconsequential as petitioner, despite attaining majority, had not appeared as witness - indicated that evidence of PW-1 was recorded on 04.11.1998, evidence of PW-2 and PW-3 was recorded on 10.01.2001, by then petitioner had attained majority [as per certificate produced by the witnesses of the petitioner, she was born on 12.01.1981. Adds that petitioner deliberately avoided appearance as witness, which indicates intent to withhold best evidence. Adds that requirements of Article 64 of the Qanun-e-Shahadat Order 1984 were not met and son of real brother of petitioner's mother appeared as DW-3 and stated that couple was issueless, and petitioner is the daughter of Sikandar - PW-1. Learned counsel referred to Exh.D-14 to show that school leaving certificate mentioned that petitioner was daughter of Sikandar. Submits that all the exhibits, relied and sued upon by the petitioners were produced on the statement of the counsel, after completion of cross-examination on petitioner's witnesses, which are otherwise not admissible and rightly overlooked by the courts. Submits that petitioner while filing written statement, in case subject matter of C.R.731/2009 admitted the factum of her parentage, being daughter of Sikandar, and she consciously avoided appearance as witness to avoid confronting her with previous writing in terms of Article 140 of the Qanun-e-Shahadat Order 1984. Further submits that presumption that Jalal died as Sunni Muslim was not rebutted, and otherwise the evidence available substantiates sect of the deceased Jalal as Sunni Muslim. Submits that application for arranging DNA testing, as additional evidence, is an attempt to delay proceedings, which plea otherwise had no basis. Adds that no such application was filed before learned trial court, at appropriate time, which is filed after almost 20 years of death of Jalal. Learned counsel for the respondent No.1 stressed on dismissal of application while referring to the decisions reported as "SHAMSHAD BIBI. VS. RIYASAT ALI and others" (2017 CLC 1199), "MST. LAILA QAYYUM. VS. FAWAD QAYUM and others" (PLD 2019 SC 449), "ALLAH WASAYA and 13 others. Vs. YAR MUHAMMAD and others" (2015 MLD 272).
Determination:
6. Petitioner alleged, iterated by PW-1, Sikandar, that Zubeida Parveen, alias Shahida Parveen [alleged by PW-1 during cross examination], was the elder daughter of Sikandar - whose date of birth was 26.08.1980 - according to Exh.P-8 -. There is no explanation why Zubeida Parveen was not produced as witness to clear the confusion that petitioner and Zubeida Parveen were two separate persons - which confusion deepened in wake of failure of the petitioner to appear as witness - onus was on the petitioner to prove the fact alleged.
Exh.P-3 showed petitioner's date of birth as 12.01.1981, however in Exh.P-12 her date of birth was 21.01.1981 - admissibility of these documents was questionable otherwise as same were not produced by the scribe thereof and had not underwent the test of formal proof - Documents were produced on the statement of the counsel.
7. Petitioner produced and relied upon report of the Tehsildar / Assistant Collector dated 28.10.1993 - Exh.P-5, which indicated statement of Talhian Bibi, stating that name of Sikandar's daughter was Shahida Parveen. No dispute was raised regarding the contents of Exh.P-5.
8. PW-2, statedly related to Taleh Bibi, alleged that petitioner was born in his house, who alleged that Sikandar was in possession of the land as lessee, who was earlier the lessee of Jalal. What weightage or independence could be extended to the evidence of Sikandar-PW-1, in these circumstances, and unless the identity of the petitioner was established that she is daughter of Jalal, Sikandar is an overt beneficiary of the mutation No.1110, wherein, in the absence of proof of petitioner as daughter of Jalal, Sikandar's daughter actually claimed share in the inheritance of Jalal. Though Sikandar appeared as PW-1 and stated with respect to the relationship of petitioner with Jalal but failed to lead convincing evidence to meet the requirements of Article 64 of the Qanun-e-Shahadat Order 1984. Conversely, son of real brother of petitioner's mother appeared as DW-3 and stated that couple was issueless and petitioner is the daughter of Sikandar - no, explicit or implicit, interest of said witness, DW-3, was alleged. Additionally, there is nothing on record that to show that petitioner was treated as daughter of Jalal by the family. It is evident from Exh.P-3 that Jalal had not reported birth of Petitioner for registration, it was reported by Chowkidar, who was not produced. Witnesses of the petitioner admitted that midwife was alive, still she was not produced.
9. Learned counsel emphasized that under Article 128 of Qanun-e-Shahadat Order, 1984 legitimacy of parentage, qua the minor born during valid and subsisting marriage, is conclusively determined, which is irrebuttable and unquestionable. Submission is misconceived. In view of the facts and circumstances, pleaded and evidence produced, the fundamental question is whether Jalal and Telah Bibi were issueless or not - fact in issue is whether petitioner was born out of wedlock of Jalal and Talhian Bibi. In terms of Article 128, ibid, the presumption of paternity arises only when the mother of the child is married to the man, who is alleged to be the father of the child, however, in this case it is not proved that petitioner was born of the body of Talhian Bibi - wife of Jalal. In these circumstances, question of presumption of legitimacy and applicability of Article 128, ibid, does not arise. The judgment referred by learned counsel for the petitioner are distinguishable on facts, having no application.
Reference is made to the cases reported as RAO NARSINGH RAO. V BETI MAHA LAKSHMI BAI AND OTHERS (66 Indian Cases 902 (1922)).
"We have listened very carefully to Mr. Nihal Chand's arguments with complete readiness to grant the application if that could consistently and properly be done.
Mr. Nihal Chand argues that the Court ought to have applied the provisions of section 112 of the Evidence Act and he formulate his case in this way. He says that when the defendants had failed to establish the case which they set up that Rao Narsingh Rao was the son of Shekhar Singh, thereupon there arose a conclusive presumption that Rao Narsingh Rao was the son of Musammat Dunaju by her hubsnad, Rao Balwant Singh. We have pointed out elsewhere that the defendants were under no obligation to prove the paternity of Rao Narsingh Rao. It was for him to prove that he was the son of Musammat Danaju.
He has cited to us the case of Narendra Nath Pahari v. Ram Gobind Pahari (1) and Tirlok Nath Shukul v. Lachmin Kunwari (2). It will noticed that in both those cases the Privy Council found as a fact that the lady had in fact given birth to a child and then on proof that the other requirements of the section were complied with, the conclusive presumption arose. Had Rao Narsingh Rao been able to prove that Musammat Dunaju had on the 2nd March 1894 given birth to a child, practically all his difficulties would have disappeared, as it would, in our opinion, in the circumstances have been proper to conclude that he was in fact the child and that Rao Balwant Singh was the father.
Section 112 could only have been relied upon by him after proof of the giving of birth to a child by Musammat Danaju. The weight of evidence was against the alleged child bearing by Musammat Danaju, and being of opinion that section 112 has no application, we are compelled to decide that the applicant has failed to show that there is any substantial question of law in the proposed appeal and, therefore, reject the application as not fulfilling the requirements of section 110 of the Code of Civil Procedure.
The question of scope of Section 112 (equivalent of Article 128 of Qanun-e-Shahadat Order, 1984) came up for consideration in the case of Kanhaiya Bux Singh and others. Vs. Ram Dei Kuer and others (AIR 1944 Oudh 162), relevant portion is reproduced as.
50. We may finally notice in this connexion the argument advanced on the basis of presumption of legitimacy which it is said must arise in the present case and which will operate to throw the burden of proving the illegitimacy upon the plaintiffs. In our opinion, the argument is somewhat misconceived. In the first place no question of onus arises in cases where evidence has been produced by both parties and the only question is as to whether upon the evidence so produced the case set up in respect of Shambhu being the son of Beni Madho Singh has or has not been established. In respect of that question we have arrived at the finding that Shambhu was not a son of Beni Madho Singh so as to succeed to the estate. In the second place in case where a plaintiff claims to recover property as the son of any person by his lawfully married wife and the defendant denies that the wife ever gave birth to the child and sets up that the plaintiff was the son of a woman other than the lawfully married wife, the onus of proof is upon the person who claims to show that the lawfully wedded wife gave birth to him, before invoking the presumption in Section
112. There is no presumption in favour of legitimacy without laying the foundation for it under Section 112, Evidence Act, namely, that a valid marriage took place between the parents. We agree with Hamilton J. in holding that Shambhu is not a son of Beni Madho Singh from his lawful wife, that Jadunath Singh is the senior most among the descendants of Sheo Baksh Singh and being the nearest male agnate according to the rule of lineal primogeniture is entitled to the talukdari property left by Chaudhrain Mithan Kunwar."
10. This Court finds no plausible reason to allow application for additional evidence by way of DNA testing, which was not filed before the trail court and the appellate court. Application, on its face, lacks bona fides. Even otherwise under the facts and circumstances of the case such plea is unwarranted.
11. The principle of preponderance of probability, in wake of the totality of evidence, is against the petitioner, and upon applying test of prudence, this court firmly believes that existence of relationship inter se petitioner and Jalal is not established, hence, this fact remained disproved. No evidence is otherwise led or available to convince this Court to review the findings on issue - No.2, regarding the sect of the deceased Jalal.
12. No case for interference is made out to upset/ reverse concurrent decisions, in the exercise of revisional jurisdiction when no illegality or irregularity, in exercise of jurisdiction, is pointed or found.
13. This Civil Revision is, hereby, dismissed. No order as to costs.