1. ' This revision petition by the plaintiff is directed against the judgment dated 28-4-1987 and decree dated 23-5-1987 of learned Additional District Judge, Thatta, allowing the appeal of the respondent and setting aside the judgment and decree dated 31-3-1986 passed by the Senior Civil Judge, Thatta decreeing the suit of the petitioner.
2. ' The facts leading to the filing of the above revision are that the petitioner filed suit for declaration and injunction against the respondent in respect of property bearing No,G.S. 877.878, Ward 'A', Sajawal, district Thatta. The case of the petitioner, as set out in the plaint, was that the aforesaid property was transferred to Piroo son of Aroo Daya by the Settlement Authorities.
3. Piroo died on 20-7-1980 and left behind the petitioner who was widow of Piroo to inherit the property. The property was in possession of Piroo and the petitioner after the death of Piroo, was in exclusive possession of the same. It was the case of the petitioner that through misrepresentation and fraud, the respondent had got the City Survey record mutated on the basis of bogus gift alleged to have been executed by Piroo. It was the further case of the petitioner that Piroo had not executed such gift. The respondent had filed Rent Application being R.A. No, 8 of 1980 for eviction of petitioner from suit property. The petitioner had the knowledge of the fraud after the institution of rent case. The rent application was dismissed on 3-7-1981.
4. ' The respondent contested the suit by filing written statement wherein he contended that Piroo had adopted him as his son and out of love and affection had gifted the suit property to him on 31- 3-1967. The respondent was son of Mst. Chati, the real sister of Piroo. Mst. Chati died on 26-12-1983.
5. It was the further case of the respondent that after transfer of the house, he constructed the same and Piroo was living as tenant of the respondent. According to him, the petitioner was not legally- wedded wife of Piroo. It was the further case of the respondent that the petitioner was married with one Bassar and was living with Piroo without obtaining 'Talaq' from Bassar.
6. ' On the pleadings of the parties, the trial Court framed five issues. The parties led evidence in support of their respective contentions.
7. ' The learned Senior Civil Judge, on assessment of the evidence on the record, decided all the issues in favour of the petitioner and since the petitioner had admitted the respondent to be son of sister of deceased Piroo, the petitioner's suit was decreed to the extent of twenty-five paisas widow's share.
8. ' Being aggrieved by the judgment and decree of the lower Court, the respondent went in appeal which was heard by the Additional District Judge, Hyderabad. The learned Additional District Judge, on re-assessm ent of the evidence on the record, maintained the findings on issues Nos.1, 2 and 4 and reversed the finding on issue No,3 and dismissed the suit. Hence the present revision.
9. ' I have heard Mr. Jhammat Jethanand, learned counsel appearing for the petitioner and Mr. K.B.
10. Bhutto, learned counsel appearing for the respondents and have perused the impugned judgment.
11. I have also gone through the R & P of the case.
12. ' In order to appreciate the contentions of learned counsel for the parties, it is advantageous to reproduce issue No,3 which reads as under:- "3. Whether plaintiff is legally-wedded wife of Piroo?"
13. The petitioner averred in paragraph 4 of the plaint that she is widow of Piroo. The respondent filed written statement. In paragraph 4 of the written statement, the respondent stated that "so far as contents of para. 4 are concerned it is specifically denied that plaintiff was legally-wedded to Piroo". The respondent further stated that "in fact plaintiff was married with one Bassar son of Wasayo Dayo. She left said Bassar and started living with Piroo without obtaining Talaq from Bassar. No Nikah was performed between plaintiff and Piroo till the death of Piroo on or about 20-7- 1980".
14. ' On the basis of the evidence adduced by the parties before the trial Court, it held that "it is proved that the plaintiff is legally-wedded wife of Piroo". In that view of the matter, issue No,3 was answered in the affirmative.
15. ' The lower appellate Court observed that the conclusion is against the spirit of law as well as against the assertion made by the petitioner in her suit. The lower appellate Court observed that the case of respondent was that she was married with Piroo before 12-10-1958 and, therefore, she was required to prove this marriage which she failed.
16. ' The finding of the lower appellate Court is that the petitioner was required to prove that she was married with Piroo prior to Ayub regime which she failed. The case of both sides cover a well- defined common ground. This ground is that the petitioner was living with Piroo since prior to Ayub regime. I am of the opinion that when the facts now admitted are considered in the perspective just now mentioned, the only reasonable conclusion will be that the petitioner was married to Piroo.
17. Indeed the evidential force of the admitted facts which I shall presently state is so great that Mr. K.B.
18. Bhutto, learned counsel appearing for the respondent, had to take up the position that the petitioner had the reputation of being and treated by all concerned as the wife of Piroo. The learned counsel suggested that Mst. Begi asserted that she was married with Piroo prior to Ayub regime which she failed to prove. As such she could not be proved to be wife of Piroo which I regard as wholly untenable. This is opposed to legal presumption. It is advantageous to refer to the dictum of Hon'ble Supreme Court in the case of Major Sher Afzal v. Shamim Firdaus and another (PLD 1980 SC 228) and is reproduced as under:- "Here it may be pointed out that "Mere cohabitation of man and woman, or their behaviour in other respects as husband and wife always affords an inference of greater or lesser strength that a marriage has been solemnized between them. Their conduct being susceptible of two opposite explanations, the Court giving effect to the presumption of innocence (V ante) is bound to be moral rather than immoral."--(This is on the principle that law in general presumes against vice and immorality) Woodroffe and Ameer Ali Law of Evidence) Vol.III, 11th Edition, Commentary under Section 114 of Evidence Act under the heading "marriage" page 2337."
19. ' The Hon'ble Supreme Court also referred to the case of Mohabat v. Mohammad Ibrahim Khan and others (AIR 1929 PC 135) decided by the Judicial Committee. The Judicial Committee held as under:- "The law presumes in favour of marriage and concubinage, when a man and a woman have cohabited continuously for a number of years."
20. ' In Shah Nawaz and another v. Nawab Khan (PLD 1976 SC 767) the Hon'ble Supreme Court held at page 776 as follows:- "So the matter rests in oral evidence only. But the oral evidence is either vague or biased. It does not disclose the place where Mst. Fazal Bibi was given in the marriage and by whom. These are no doubt remote facts and therefore want of direct evidence is perfectly understandable. In such circumstances, Muslim Law presumes in favour of marriage, when there is evidence to show that a man and a woman lived together "for a long time" as man and wife."
21. ' Again at page 778 the Hon'ble Supreme Court held as under:- "Section 50 however, is one of the exceptions to the general rule against hearsay. It is therefore, essential that in order to lay the foundation for the admission of evidence under this section its ingredients must be brought out positively."
22. ' I have gone through the evidence adduced by the parties. The petitioner/plaintiff's evidence on this point is that "after my marriage with Piroo we were residing in the suit house. I was married to Piru about 5-6 years prior to Ayub regime". In her cross-examination, she admitted that "I was wedded to one Bassar. I do not know when Bassar died. It is incorrect to suggest that I was not divorced by Bassar. It is incorrect to suggest that I was not married to Piru and that I was his keep only. My marriage to Piroo was solemnized near Chuhar Jamali in the village Khanto. Syed Noor Shah had acted as Vakil in Nikah, Gold ear-rings were fixed as Haq Mahr which was given to me by Piroo. The marriage was solemnized in the house of my brother. Piroo had no house. My brother Khamoon in whose house the Nikah was performed is still alive and is my witness in this case". In support of her version, the petitioner examined Noor Mohammad Shah. He deposed as under:- "I know deceased Piru. I know the plaintiff. The plaintiff is wife of deceased Piru. The marriage of plaintiff with Piru was solemnized about 2-3 years prior to Ayub regime. I was present in the Nikah ceremony. After marriage the plaintiff was residing with her husband Piru in Sujawal Town. Piru died about 1-1/2 years back. After the death of Piru the plaintiff is still residing in the same house in Sujawal."
23. ' In his cross-examination, he stated as under:- "The marriage was performed in village Khan to Wah in my village. Piru was residing in Sujawal but he had come to Khanto Wah for marriage ceremony. Khamoon the brother of plaintiff was residing in that Village. Khamoon was my Hari. The plaintiff was already residing with her brother in village Khanto Wah, Khamoon the brother of the plaintiff was present at the time of Nikah ceremony.
24. Khamoon had given the hand of plaintiff in marriage to Piru (acted as Waris). Gold ear-rings were fixed as Haq Mahr and the same was given at the time of Nikah. I had read the Nikah."
25. ' To a question in cross-examination, he stated that "three persons were available at the time of nikan ceremony". He denied the suggestion that he was deposing falsely and that no Nikah was performed and that the petitioner was a keep of deceased Piroo.
26. ' The respondent stated in his examination-in-chief as under:- "Piru was married with only Mst. Saran who expired in his lifetime. After the death of my mother, I am sole heir of Piru. He expired issueless.
27. ' House in which deceased Piru expired i,e. Suit property, was in possession of plaintiff who resided with him as his keep."
28. ' In his cross-examination, he admitted that at that time Piroo was residing in the suit house. Mst.
29. Begi the plaintiff was also residing with him at that time. Both these S.Nos. Comprised of one house.
30. Piroo resided in the suit house since 1960. Mst. Begi also resided since 1960 with Piroo". He denied the suggestion that Mst. Begi was not keep of Piroo. He also denied the suggestion that Mst. Begi was legally-wedded wife of Piroo".
31. ' Respondent examined one Haji Kasim in support of his case. Kasim stated as under:- "I also knew deceased Bassar son of Wasayo Dayo. I also know Mst. Begi, the plaintiff. She was married to Bassar son of Wasayo; thereafter she lived with Piru since 1957 when I had returned from Harmain Shard. The deceased Piro had hosted a dinner in my honour which I had refused on this ground. Bassar was also alive at that time and was aggrieved with Piru. Bassar had divorced Mst.
32. Begi in the year 1965. After 11th day of September after compromise between Piru and Bassar on the occasion of marriage of my daughter. Piru had not solemnized Nikah with Mst. Begi till she was divorced by Bassar."
33. ' It is necessary to reproduce his cross-examination which reads as under:- "I do not remember now much before 1957 Mst. Begi was residing with Piroo in a house in Sujawal which is a suit house. Mst. Begi is still living in the same house. Piroo was also residing in the same house till his death. I do not remember the exact date when Bassar expired after the year 1965. It is incorrect that Bassar had divorced Mst. Begi in the beginning. Thereafter she resided with Piroo after being married with him. It is not a fact that Nikah of Mst. Begi was solemnized with Piroo."
34. ' The other witness of respondent stated as under:- "I also knew Piroo maternal uncle of defendant. I also know Bassar son of Wasayo Dayo and also Mst. Begi. Mst. Begi was married to Bassar and had left Bassar and resided with Piroo without being divorced by Bassar. Bassar divorced Mst. Begi in the year 1965. Nikah of Mst. Begi was not solemnized with Piroo and she was residing with him without Nikah."
35. ' It is also necessary to reproduce his cross-examination which reads as under:- "Haji Kasim the witness is my uncle. I do not remember the year since which Mst. Begi resided with Piroo but she was residing about 25 years ago. She started residing with Piroo after 7-8 years of partition. Nikah of Mst. Begi with Bassar was solemnized about 10-15 years before her residing with Piroo. Until residing with Piroo she had been residing with Bassar. It is not a fact that Bassar had left Mst. Begi by divorce. It is not a fact that after divorce by Bassar, she resided with Piroo. Bassar divorced Mst. Begi about 20 years ago. I was married in 1951. It is incorrect to say that I am deposing falsely at the instance of Muhammad Khan, the defendant. I do not know whether Nikah of Mst. Begi was solemnized with Piroo."
36. The evidence adduced by the petitioner would show that the marriage was solemnized according to law. She stated that ear-rings were fixed as dower. Noor Mohammad Shah who performed the Nikah stated that ear-rings were fixed as dower and Piroo gave the same at the time of Nikah. Noor Shah also stated that two or three persons were present at the time of Nikah. The witness for the respondent that Nikah was performed in 1965 whereas the petitioner's witness stated that marriage was solemnized prior to Ayub regime. In the facts and circumstances of the case, I do not see any reason how the learned Senior Civil Judge had erred in coming to the finding that the plaintiff/petitioner had established that a valid marriage had taken place between her and Piroo.
37. The conclusion to which I have come is that marriage of Mst. Begi with Piroo is established.
38. It has come on record that the petitioner and Piroo were living as husband and wife for about twenty years. In view of the position taken up by the respondent, the matter, in my opinion, ends there though even otherwise after the establishment of a continuous cohabitation as has been found in this case, if anybody wants to get out of the presumption that the cohabitation was as husband and wife, the burden would be on him who alleges that petitioner was a keep of Piroo. In the instant case, there exists direct and circumstantial evidence to give effect to the above principle of Mohammadan Law on the subject.
39. For the aforesaid reasons, the revision is allowed, the findings of the learned lower appellate Court on this issue is set aside and the judgment of trial Court is restored. In the circumstances of the case, the parties are directed to bear their own costs.