This second appeal is filed by Anwar, Ashraf and others, the legal heirs of Sher D.1 against the judgment and decree of variance passed by the learned Additional District Judge Attock, whereby he accepted the appeal and dismissed the suit filed by the appellants/plaintiffs.
2. The facts in brief are that on 23-4-1906, Anwar and others filed a suit for possession in respect of their share of 1/3rd in agricultural land measuring 27 kanals 19 marlas completely detailed in the plaint, left by Khan Bahadur who died issueless. The appellants/plaintiffs claimed that they were the legal heirs of Sher D.1 who was the real brother of Mir Afzal Khan and Sher Bahadur, that Sher D.1, Sher Bahadur and Mir Afzal Khan were the real sons of Amir Khan, that the Revenue Authorities have attested mutation of inheritance unlawfully excluding the plaintiffs from their share. The suit was resisted by the defendants who asserted that Sher D.1, Sher Bahadur and Mir Afrul.Were not the real brothers. As a matter of fact Sher Bahadur and Mir Afral Khan were born from Mst. Khanum Jan while Sher D.1 was born from Habib Jan. Sher D.1 was the consanguine brother of Sher Bahadur and Mir Afial and therefore, were not entitled to inherit from the estate left by Khan Bahadur son of Amir Khan.
3. The pleas of the parties were put into the folloiwng issues:-
(i) Whether Sher D.1 the predecessor-in-interest of the plaintiffs was the real uncle of deceased Khan Bahadur? OP
(ii) If issue No.1 stands proved, what is the share of the plaintiffs in the suit property? OP (i.e)Relief.
4. The learned Civil Judge by judgment and decree dated 15-7-1969 decreed the suit to the extent of 1/3rd share in the suit land holding that Sher D.1 and Mir Afzal were the real brothers. On appeal, the learned Additional District Judge by impugned decision varied the decision of the first Court, came to the conclusion that the said Sher D.1 was not real brother of Mir Afzal Khan and so dismissed the suit for possession. Hence this second appeal.
5. Learned counsel for the appellants/plaintiffs in support of this appeal raised the following points: (i)It was contended that the finding of the first Court of appeal on issue No.1 was contrary to law and the result of misapplication of Section 50 of the Evidence Act. It was urged that the learned first Court of appeal discarded the evidence of P:W.1 Muhammad Ayyub and PW3 Hafiz Hazir Khan who was Imam Masjid. According to him, Hafiz Hazir Khan possessed special means of knowledge therefore, his opinion in respect of the relationship of the parties was of decisive evidential value.
(ii)The second argument of the learned counsel for the appellants was that the appeilate Court is to give due respect to finding of the trial Court who has the privilege of recording evidence and noting the demeanour of witnesses while the first appellate Court is to decide the case with reference to material on record. In this case the trial court who had recorded the evidence of the parties had come to conclusion, that P.W.3 was a truthful witness as his evidence completely demonstrated that he neither withheld anything nor stated anything wrongly. Strength was sought from the provisions of Section 50 of the Evidence Act.
(i.e)Thirdly it was suggested that the evidence of the respondents/defendants was either irrelevant or inadmissible within the frame-work of section 50 ibid. D.W.3 Ghulam Haider, D.W.4 Ghafoor Khan, D.W.5 Sher Afsar had no means of special knowledge, therefore, they were incompetent witnesses to depose in respect of relationship of the parties. D.W. 2 and D.W.5 also showed the lack of special means of knowledge. As far as Mst. Karam Jan was concerned, she was a partisan witness as she lived with the respondents.
On the strength of this argument it was argued that the rule of preponderance of evidence weighed in favour of acceptance of the version of the plaintiffs/appellants.
(iv)It was lastly contended that the Revenue Authorities undertook the inquiry a number of times and came to the conclusion that Sher D.1 and Vial were the real brothers. Such a finding reflected in Mutation must have to be given due eight.
6. Learned counsel for the respondents/defendants in the beginning of the arguments raised the preliminary objections to the effect that the question raised by the learned counsel related to a finding of fact which was not open to interference in Section 100 of the Code of Civil Procedure. It was next contended that the findings of the first Court of appeal were correct, eminently just and recorded after the consideration of oral as well as documentary evidence produced by both the parties.
7.. I have heard the arguments of the parties and perused the record with their assistance. The only question calling fur examination is whether the findings of the first Court of appeal on the issue of relationship as to whether Sher D.1 and Mir Afzal were the real brothers or consanguine brothers.
Both the learned counsel addressed the Court on this vital question and took the Court to the evidence on record in this regard only. I will herein now proceed to determine the respective contentions of the parties.
8. The contentions of the parties arise from the objection of both the parties that evidence on record is not admissible within the framework of section 50 of the Evidence Act (Presently Article 64 of the Qanun-e-Shahadat), which is as under:-- "Opinion on relationship when relevant. 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 the family or otherwise, has special means of knowledge op the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Divorce Act, 1809 (IV of 1869) or in prosecution under Section 494 or 495 of Pakistan Penal Code (Act XLV of 1960).
Illustrations (a)The question, is, whether A and B were married.
The fact that they were usually received and treated by their friends as husband and were, is relevant.
(b)The question is, whether A was the legitimate son of.8. The fact that A was always treated as such by members of the family, is relevant:"
9. This section/article deals with the admission of class of circumstantial evidence when the Court has to form an opinion as to relationship of one person to another. For the purpose of receiving evidence of circumstantial nature of this type the two sections of Evidence Act are relevant i.e. Section 32 and Section 50: The point of difference between the two sections is that under Section 32 (5), statements of the deceased person are admissible whereas under this section the relevant fact is the opinion of a person alive or, deceased expressed by conduct the qualification of special means of -knowledge being common to both the provisions, Secondly, the statement under Section, 46 must have been made before the question in dispute was raised but under this section it is immaterial where opinion was expressed before or after the controversy arose:
10. A plain reference to Section 50 ibid shows that the person Whose opinion, is made evidence by this section must be shown to have special -means oft knowledge on the. Subject. In order to lay foundation for the reception of evidence under this Section, the following requirements are to be fulfilled: (i)The person. Whose opinion is sought to be 'given in evidence must be proved to have special means of knowledge on the subject..
(ii)The opinion alone is evidence; (i.e)The opinion as expressed by conduct only is evidence or in other words the conduct only can be given in evidence.
(iv)That a member of family is presumed to possess special means of knowledge to give evidence in respect of relationship under this section.
11. The evidence of a member of family was examined under .Section SO of the Evidence Actin Sitaji v. Bijcndra Narain (AIR 1954 SC 601), his Lordship Bose, J. Who delivered the judgment said as follows: "A member of the family can speak in the witness box of what he has been told, and what he has learned about his .Own ancestors, provided what he says is an expression of his own independent opinion (even though -it is based on hearsay derived from decased, not living, persons) and is not merely repetition of the hearsay opinion of others, and provided the opinion is expressed by conduct his sources of information and the time at which he acquired the knowledge (for example, whether before the dispute or not) would affect its' weight, but not its admissibility."
12. In Ghulam Muhammad and. Another v. Allah Yar and others.(P; D 1965 Lahore f32), examining the evidential value of the; opinions of friends and the members of the family who have a, special mean, of knowledge, it, was, observed: , "In these cases tire 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 person concerned. The opinion as expressed by conduct is evidence or in other words evidence of the conduct can be given in evidence and form that conduct liven 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 mote necessary that in order to lay- the foundation for the admission of evidence of this Section must he brought out positively. Mere rumour or gossip that A is related to unaccompanied by conduct on theirpart 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. Section 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 conduct and there is no other section in the Evidence Act under which the evidence of general reputation can be received in proof of relationship.
13. Dealing with the evidence of a member of family his Lordship Mr. Justice A.S. Faruqui in Haji Ilah Bakhsh and others v: Mst Nawah Bibiand others PLD 1966 Lah. Hfrl held as under:- '
"With regard to most of the observations made by my learned brother with reference to section 50 1 am in respectful agreement but the point where 1 have found difficulty in accepting his view, and 1 say so with great respect, is with regard to the general proposition that the evidence of relationship would lie inadmissible unless foundation for the admission of such evidence is laid by the party who seeks its admission. That in many cases such a requirement would be necessary is true but this cannot be laid down as a general proposition. For instance, if a brother of the deceased was to depose that was the son of the deceased or was his were, I do not think it would be necessary to ask questions of such a witness in the first instance regarding the means of his special knowledge.
Such a means would be presumed in such a case. In my opinion, therefore, when a witness is shown either to be a relation or a friend of the family and he deposes to a fact of relationship there would be a presumption that he had the special knowledge of such relationship. It would not in such a case be necessary to preface his evidence or relationship with questions which must first lay down the foundation based on- conduct with regard to such evidence. Munir in his Commentary on the Law of Evidence on section 50 of the Evidence Acthas thus observed:--- "Members and friends of the family will be presumed to have special knowledge of the relationship their conduct will not only be relevant under this Section but Courts should attach considerable importance to it in determining the question of relationship."
The learned author has in support of this view relied upon Muttuswamy v. Vankataswara 12 MIA 203, Khajah Hidayat v. Rai Jan 3 1 A 295 and Fazilatunnisa v. Gibi Oamarustnisa 9 CWN 352."
14. The ratio emerging from the aforesaid authorities is that when a wiliness is shown either to be a relation or a friend of the family and deposes as to the fact of relationship there would be presumption that he had a special means of knowledge of such a relationship and it would be immaterial in such case to preface his evidence of relationship.
15. Applying these principles to the facts of the case, it is quite clear that neither Maulvi Muhammad Ayyub nor Hafiz Hair Khan were the members of the family of the parties to this suit. Maulvi Muhammad Ayyub stated that he has formed his opinion on account of the fact that Sher D.1, Mir Afzal and Sher Bahadur lived in the same house and were being treated as real brothers. He did not show any other means of knowledge by which he could form his opinion in respect of exact relationship of the parties: Shcr D.1, Mir Afral and Sher Baha.Dur had the same father and, therefore, very apparently must have lived like real brothers. The statement of Muhammad Ayyub is of no help to the resolution of the controversy. Similarly, Hafiz Hazir Khan is Imam Masjid, he is not a member of the family. He did not indicate his source of knowledge.
16.As against it, Mst. Karam Jan, the widow of Mir Afzal and the mother of Khan Bahadur whose left estate is the subject-matter of dispute, clearly stated that Sher D.1 was the consanguine brother of Mir Afzal, and she was of subjected to cross-examination. It is a settled principle of law that if the fact given in examination-in-chief is not subjected to cross-examination, it seemed to have been admitted. According to me, the learned first Court of appeal was justified in placing, reliance upon the evidence of Mst: Karam Jan, Mst. Karam Jan was the widow of Mir Afzal therefore, she had direct means of knowledge about the ' exact relationship between the parties.
17. There is yet another aspect of the case that Mst. Durani, the widow of Sher D.1 was alive but she was also not, produced before the trial Court. Withholding of this material evidence leads to presumption that if .She had appeared before the Court she would have not supported the case of the appellants/plaintiffs.
18. For whatever has been stated above, I do not find any infirmity in the judgment of the learned Additional District Judge. Accordingly this appeal fails and is dismissed with costs throughout.