1. ' This judgment will dispose of two revisions bearing Nos. 55 and 56 of 1981 brought by Muhammad Shah petitioner from the judgments and decrees of the Additional Civil Judge, Swabi dated 15-7- 1978 whereby Suit No, 231/1 of the respondents was decreed with costs and that of the peti tioner bearing No, 232/1 was dismissed with costs and the appeals of the petitioner from the above judgments too were dismissed by the Additional District Judge Mardan at Swabi on 16-12-1980.
2. ' Facts gleaned from the record are that the petitioner and Muhammad Akbar deceased the predecessor-in-interest of respondents 1 to 5 are brothers. Muhammad Akbar deceased had some landed property in village Mian Dheri and elsewhere in Swabi, District Mardan. It is alleged that the said Muhammad Akbar had left for Afghanistan more than 60 years back and settled there. It seems that a certain portion of the land of Muhammad Akbar was occupied by one Muhammad Hand his co-villager. This prompted the petitioner to sue Muhammad Hanif in the Court of Civil Judge, Swabi for possession on account of ownership. The suit was contested and in the written statement submitted by Muhammad Hanif while admitting the ownership of the petitioner and his deceased brother Muhammad Akbar over the suit property, took a stand that the same was sold to his father by the petitioner and his deceased brother some 35 years back and since then he and his other heirs are in its lawful possession. In the alternative plea of adverse possession was also raised The pleadings of the parties led to the framing of about 11 issues. During the proceedings Muhammad Hanif defendant submitted an application for deciding the suit on oath. This proposal was accepted by the petitioner and on 30-1-1975 oath was administered to the petitioner and the suit was decreed in his favour the same day. The suit bears No, 401/1.
3. ' The matter, however, did not end here inasmuch as on 18-2-1975 one Aziz Akbar moved the revenue authorities claiming himself, his brother Syed Anwar Shah, his mother Mst. Johar Bibi and his two sisters namely Syed-un-Nisa and Saleha (minors) as heirs of Muhammad Akbar deceased and prayed for the attestation of inheritance mutation of the land left by their deceased father in village Mian Dheri. The matter was taken up by the Revenue Officer and after necessary formalities Mutation No, 422 was attested in the names of the above heirs of Muhammad Akbar on 4-4-1975 in spite of the objection as to the relationship of the respondents with Muhammad Akbar raised by the petitioner. This attestation was impugned by the petitioner by way of an appeal but without success. Exactly two months after the attestation of mutation, the respondents on 4-6-1975 brought a suit bearing No, 231/1 alleging therein that they were the heirs of Muhammad Akbar and were the owners in possession of the land measuring 11 1- Marlas out of 1 Karla' 3 Marlas situated in village Mian Dheri Tehsil Swabi through Muhammad Hanif their Kardar (incidentally the said Muhammad Hanif is the person who had earlier in Suit No, 401/1 claimed the ownership of the disputed land). In the suit it was further alleged that since Suit No, 401/1 decreed in favour of the petitioner against Muhammad Hanif their Kardar, was based on fraud and without impleading them as a party, therefore, it did not affect their right. A decree for a declaration of their right as such and possession thereof was prayed for. Trial in the above suit was in progress when Muhammad Shah (now petitioner) filed another suit bearing No, 232/1 against the respondents challenging the validity of inheritance Mutation No, 422 attested in favour of the respondents on 4- 4-1975 and claiming the ownership and possession of the land measuring 6 Kanals 5 Marlas or whatever is found in the ownership of his brother Muhammad Akbar. The petitioner also alleged that his brother Muhammad Akbar had died issueless, the respondents are not his (Muhammad Akbar's) heirs and that Muhammad Hanif who had earlier lost Suit No, 401/1 was instrumental in getting Mutation No, 422 attested in favour of the respondents and also instituting Suit No, 231/1 in order to deprive the petitioner of his right. This suit too was being proceeded with independently when on 25-3-1976 both the suits were consolidated.
4. ' The pleadings of the parties in both the suits gave rise to the following issues :-
(1) Whether the plaintiffs (in Suit No, 231/1) have got a locus standi being the heirs of Muhammad Akbar ?
(2) Whether the plaintiffs (in Suit No, 231/1) are estopped to bring the present suit ?
(3) Whether the suit (No, 231/1) is res judicata ?
(4) Whether the plaintiffs (in Suit No, 231/1) are not Pakistanis, if so its effect ?
(5) Whether the plaintiffs (in Suit No, 231/1) have got a cause of action ?
(6) Whether the plaintiffs and defendant No, 2 (in Suit No, 231/1) are owners in possession of the suit land and the Court decree in suit No, 401, decided on 30-1-1975 is fraudulent, void and ineffective upon their rights ?
(7) Whether the plaintiffs (in Suit No, 231/1) native relief ?
(8) Relief. Additional issues :
(9) Whether the addresses of the defendants in Case No, 232/1 have been wrongly shown in the plaint, if so, its effect ?
(10) Whether Muhammad defendant (in Suit No, 231/1) is the sole heir of Muhammad Akbar deceased and as such Mutation No, 422, dated 4-4-1975 is wrong and ineffective upon his rights ?
5. ' Both the parties produced evidence in support of their respective claims. The learned trial Court basing its findings on issues 1, 5, 6, 7, 9 and 10 while decreeing the Suit (No, 231/1) of the respondents, dismissed the suit of the petitioner bearing No, 232/1 on 15-7-1978 by a single judgment. The appeals of the petitioner before the Additional District Judge were also dismissed by a consolidated judgment dated 16-12-1980. The petitioner has now challenged the findings of the Courts below by two separate revision petitions which are now being disposed of through this single judgment.
6. ' The learned counsel for the parties heard in detail and the record gone through with their assistance. The learned counsel for the petitioner vehemently disputed the findings of the Courts below and submitted that though both the Courts have by concurrent findings decreed the suit of the respondents but since in doing so, have based their conclusion on evidence which is inadmissible under the Evidence Act, the same can be set aside by the High Court in exercise of its revisional jurisdiction. He further submitted that the respondents were in possession of the best evidence yet they kept it back, therefore, presumption can legitimately be drawn that if they had appeared before the Court they would have not supported the case of the respondents.
7. ' The learned counsel for the petitioner further submitted that in order to establish the relationship of the respondents with Muhammad Akbar deceased the Courts should have formed their opinion about the existence of relationship strictly in accordance with section 64 of the Law of Evidence, 1984. In order to establish the marriage of Mst. Johar Bibi and the paternity of the children, it was incumbent upon the respondents to have produced Mst. Johar Bibi who could have deposed about her marriage with Muhammad Akbar deceased or some other close relations of Mst. Johar Bibi in support of the factum of alleged marriage between Mst. Johar Bibi and Muhammad Akbar deceased. The marriage and the paternity of the children could have been also proved by the production of any of the respondents in person before the Court. He further contended that none of the respondents could appear in Pakistan because of the strained relations between the two countries, will be fallacious because the trials in the cases were concluded in July, 1978 when the relations between the two countries were not that bad. Even otherwise, the learned counsel contended that Aziz Akbar and Anwar Shah, the two sons of Muhammad Akbar were allegedly present in Pakistan during the trial, therefore, one of them could have very easily appeared in the Court in support of their case. The witnesses produced by the respondents, the learned counsel submitted had neither direct nor indirect knowledge about the whereabouts of Muhammad Akbar.
8. None has the personal knowledge about Muhammad Akbar marrying Mst. Johar Bibi and the birth of the children from the said wedlock. Their evidence being without legal foundation should have not and cannot be relied upon. Reliance in support of his arguments was placed on large number of the Indian as well as our own authorities. Some of them with regard to the production of best evidence are Puran Das v. Kartar Singh (1), Surat C. S. & W Mills v. Secretary of State (2), Muhammad Hussain v. Secretary of State (3) and Eastern Express Co. Ltd. v. Western India Skin Exporters ( ), and with regard to the relationship Lakhmi Chand v. Mst. Anandi (5), Ghulam Muhammad v. Allah Yar
(6) ; Ali Bahadar Khan v. Muhammad Yousuf Khan (7) ; Shah Nawaz v. Nawab Khan (8) and Sher Muhammad v. Fazal Bibi (9).
9. ' As against the above the learned counsel for the respondents' main stress was that since there is a concurrent finding of fact, the High Court
(1) AIR 1934 Lah. 398 (2) AIR 1937 P C 152
(3) AIR 1939 Lah. 330 (4) PLD 1958 (W. P.) Kar. 355
(5) AIR 1933 All. 130 (6) PLD 1965 (W. P.) Lah. 482
(7) PLD 1969 Pesh. 85 (8) PLD 1976 SC 767
(9) 1980 CLC 1540 in its revisional jurisdiction should not interfere in the matter. He relied on Abdul Majid v. Khalil Ahmad (1), Keramat Ali v. Muhammad Yunus (2), Pathana v. Wasai (3), Atta Hussain Khan v.
10. Muhammad Siddique Khan (4) and Muhammad Siddique v. Naseer Ahmad (5). He also submitted that the respondents have in support of their case produced most reliable and best evidence whereas the petitioner in his suit has miserably failed to do so, therefore, he cannot challenge the findings of the Court below and the revision is liable to be dismissed.
11. After carefully considering the arguments of the learned counsel for the parties in support of their respective claims I think the learned counsel for the petitioner has been able to make out a very strong case for his client on both scores i,e, on the question of failure of the respondents to produce the best evidence which was availabie and on the question of establishment of relationship between Muhammad Akbar deceased and the respondents. So far the question of production of the best evidence is concerned, it has been alleged that the two sons of Muhammad Akbar A deceased are/were present in Pakistan during the trial. If so, any one of them could have been produced to depose about the marriage of their mother with the deceased, means of livelihood and the place of residence of their father, the actual date of his death and about the birth of the children. This obviously has not been done which has given rise to the presumption that they were not supporting the case. In AIR 1939 Lah. 330 relied upon by the learned counsel for the petitioner it has been held :- "parties to a suit should bring before the Court their best evidence ; when this is not done the Court would be justified in concluding that it would, if brought into Court, not support the case of the party omitting to produce it and, in these circumstances, such party cannot be allowed to take advantage of the abstract doctrine of onus of proof."
12. ' Similar view has been taken in AIR 1934 Lab. 398, AIR 1937 P C 152 and PLD 1958 (W. P.) Kar.
13. 355.
14. As for the second point, the evidence led by the respondents about the relationship of the respondents with Muhammad Akbar deceased i,e, the marriage of Mst. Johar Bibi with Muhammad Akbar deceased and the birth of four children to the spouses is miserably lacking the essential requirements of section 64 of the Law of Evidence, 1984 (section 50 of the Evidence Act, 1872) in that none of the witnesses has the direct or indirect knowledge about the marriage of the deceased with Mst. Johar Bibi and the birth of the children. This information could have been supplied to us by Mst. Johar Bibi herself but she did not appear at the trial where she could have acknowledged her marriage with Muhammad Akbar deceased and admitted the birth of the children as a result of the wedlock. This could have also been established by producing any member of the family or otherwise who had special means of knowledge on the subject. The respondents have also failed to produce any Nikahnama about the factum of marriage of Mst. Johar Bibi with Muhammad Akbar deceased. I think the learned counsel for the petitioner was right in urging before me that there was no hinderance or difficulty in producing Mst. Johar Bibi as a witness at the relevant time when the relations between the two countries were quite normal and people
(1) PLD 1955 FC 38 (2) PLD 1963 SC 191
(1) PLD 1965 SC 134 (4) 1979 SCMR 630
(5) 1982 SCMR 284 from Afghanistan used to visit this country freely. Moreover, it is on the record that the sons of Muhammad Akbar deceased were present in Pakistan during the trial and one of them namely Aziz Akbar was even present during the hearing of this revision petition but none appeared before the Court at the trial to depose about the marriage of Mst. Johar Bibi with the deceased Muhammad Akbar and the birth of the children as a result of the wedlock. They have also not produced their passports or identity cards to establish their parentage. The careful perusal of the evidence leads one to an irresistible conclusion that the whole of it has no legal foundations and the edifice built on such evidence mast collapse. In AIR 1933 All. 130 as cited by the learned counsel for the petitioner it has been held by their Lordships that :- "In order to establish this marriage, plaintiff examined a large number of witnesses. Five of them claimed to be eye-witnesses and deposed to having been present at the marriage ceremony. The remaining witnesses gave evidence of a vague and shadowy character and their evidence might be described as evidence of repute. Some of these witnesses stated that Mt. Anandi and Tara Chand were regarded by members of the Borah community (to which the parties belong) as man and wife. This evidence does not come within the purview of section 50, Evidence Act, as it is not opinion, expressed by conduct as to the existence of such relationship of any person who as a member of the family or otherwise had special means of knowledge on the subject. If section 50 does not apply, there is no other statutory provision either in the body of the Evidence Act or outside the said Act under which such evidence could be let in to prove marriage. We are clearly of opinion that the whole of this evidence was inadmissible and should have been ruled out. We are further of opinion that the evidence is unreliable."
15. ' This dictum has been followed by our Courts reported in PLD 1965 Lah. 482, PLD 1976 SC 767, 1980 CLC 1540 SC (A J & K) and PLD 1969 Pesh.
16. 85.
17. As to the non-interference in this case by the High Court in its revisional jurisdiction, as contended by the learned counsel for the respondents, suffice it to say that since the whole case of the respondents was based on illegal evidence this Court in its revisional jurisdiction has every right to set at naught such a finding. The authorities cited by the learned D counsel for the respondents are not at all applicable to the instant case. The contention of the learned counsel for the respondents that the petitioner too has failed to establish his own case has no basis, in that both the cases were consolidated and the petitioner was able to bring sufficient material on the record to non-suit the respondents.
18. In view of the above discussion I have no other alternative but to accept both these revision petitions and set aside the judgments and E decrees of the Courts below and dismiss Suit No, 231/1 of the respondents and decree the Suit No, 232/1 of the petitioner. In view of the peculiar circumstances of the case there is no order as to costs.