1. This petition for leave to appeal is meant to discredit the judgment passed by a learned Single Judge 'of the High Court on 19-2-1983, whereby the judgment and decree passed by the civil Court of Original Jurisdiction, Bhimber, and affirmed on first appeal by the learned District Judge, Mirpur, was maintained and the appeal moved by the appellant was disallowed with costs. The controversy has arisen in the following way: The land in suit left by Muhammad Ramzan (deceased) devolved on Mst. Muhammad Bibi, his widow, and mutation was also attested in her favour. The lady then sold the land to Muhammad Hussain, the caveator, by wayi. Of a registered sale-deed. The plaintiff-appellant filed a declaratory suit to avoid this sale in the Court of Sub- Judge, Bhimber, inter alia, on the grounds:-
(1) that Mst. Muhammad Bibi was not the widow of deceased, Muhammad Ramzan, and
(ii) that they are in possession of the suit land and their possession by affix of time had ,matured into title. The learned Sub-Judge vide his judgment and decree, dated 19-8-1979, disallowed the claim put forth by the appellant resulting in the dismissal of his suit. First appeal moved before the District Judge also failed vide order, dated 4th May, 1982. Second appeal, submitted by the appellant before the High Court, was also disallowed on 19-2-1983. Hence this petition for leave to appeal to assail the said judgment of the High Court.
2. 1 have heard the learned counsel for the parties in support of their respective contentions. The learned counsel for the petitioner, Mr. Muhammad Ayub Sabir, has seriously criticised the mode of appreciation of the evidence by the Courts below. In his view the evidence fairly establishes the claim put forth by the appellant, but the learned Courts erroneously found against the appellant.
3. Elaborating his point of view he submitted that Mst. Muhammad Bibi was the relevant person to repudiate the allegation that she is not the widow of Muhammad Ramzan (deceased), but she abstained to come into the witness-box to deny this allegation and the presumption under section 114 of the Evidence Act would go against her. He further maintained that the statement of Mst.
4. Sakina Bibi has wrongly been relied upon by all the Courts below; especially when only a copy of her statement was placed on record. As against this it has been argued by Raja Leharasap Khan, the learned counsel for the respondent, that the lower Courts have returned well-reasoned out judgments which do not call for any interference; especially when the issues decided relate to factual aspect of the case. He further maintained that this Court ought not to appreciate the evidence afresh even if this Court may be on the evidence inclined to have a different view. I have given my earnest consideration to the arguments advanced at the bar and have also examined the relevant record. My view is that the judgments recorded by the Courts below need no interference. My reasons are:
(i) The words 'may presume' in section 114, would indicate that it is for the Court to make or not to make a presumption according to the circumstances of the case. Besides, no adverse presumption need be drawn against a person who fails to depose in a suit filed against him when there is other evidence on the matter, both documentary and oral. This view of mine is in line with case reported as A 1 R 1956 Him. Pra.
4. Ordinarily, non-appearance of a party as a witness would discredit the truth of his case, yet where there is other evidence which rings true, then non-appearance of a party would not discredit his case, which stands otherwise proved.
(ii) All the Courts below after critical survey of the oral and documentary. Evidence found that Mst.
5. Muhammad Bibi being the wife of Muhammad Ramzan was entitled to transfer the suit land to the respondents and Ibis finding needs no interference,
(iii) Had the allegation of the appellant that she was not the widow of Muhammad Ramzan been true the appellant in the natural events would have been at guard to see as to in whose name the mutation was entered after the death of Muhammad Ramzan. This omission on the part of the appellant has rightly, been taken into account by all the Courts below to discredit the claim put forth by the appellant.
(iv) The entries in the pedigree table also, as recorded by all the Courts, bear out the fact that Mst.
6. Muhammad Bibi was the widow of Muhammad Ramzan.
(v) 1 could not find out in the judgments any fact which may point out c any misreading or non- reading of the evidence nor any such defect' has been brought to my notice.
(vi) The question of adverse possession has also rightly been adjudicated upon against the appellant on very cogent reasons. The appellant being co-owner of the suit land with Muhammad Ramzan (deceased) would be considered to hold the land as co-sharer and there is no evidence of open and hostile denial of the right of the other co-sharers. There is also nothing on the record to show that the appellant had ever asserted their hostile title to the knowledge of Muhammad Ramzan (deceased) or his legal heirs after his death.
7. It should be remembered that petition for leave cannot be accepted as a matter of routine to raise false hopes in the mind of a party. Mr. Muhammad Ayub Sabir, I am happy, has put in his best to argue this petition, but unfortunately he could not overcome the inherent weakness in the case.
8. With the above observation the petition for leave to appeal stands dismissed. 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.