1. ' This is a civil revision petition by the plaintiff in the pre-emption suit. Facts giving rise to it in brief are:- 5 kanals, 14 marlas of land comprised in Khasra No,18 situate at mauza Musa Kamala of Tehsil and District Gujrat belonged to Fazal Elahi son of Ghulam Muhammad, a Gujjar, resident of Musa Kamala. By deed of sale registered on 27-9-1971, he sold it in favour of Qadar Dad and his brother Wali Dad, also Gujjars, and residents of Pakhowal of Tehsil and District Gujrat for a sum of Rs,3,000.
2. Mst. Rasool Bibi claiming herself to be a sister of Fazal Elahi, a co-sharer in the joint land, and, owner of the land in patti and the revenue estate asserted right of pre-emption in respect of the above sale, and, brought a pre-emption suit against the vendees, in the Civil Court at Gujrat on 21-9-1972.
3. It was averred that land in dispute was sold for Rs,2,000 but a false show of payment was made in the sale-deed. Vendees submitted defence and contested the suit. It was submitted by them that plaintiff was not related to the vendor, nor a co-sharer, nor an owner of the estate, and, therefore, had no superior right of pre-emption against them. On 12-7-1973, the trial Court settled issues arising for determination in the pre-emption suit. Of them, only material issue live for decision in second appeal is the plaintiff's superior right of pre-emption. There was no proof that she was co- owner or owner of the land in the patti or village. Her superior right of pre-emption rested solely on her being a sister of the vendor. In this view of the matter, it was unnecessary to advert to other issues and the findings recorded on them. In order to prove her relationship, plaintiff appeared as P.W.1 and deposed that she was daughter of Ghulam Muhammad, and, as such was sister of Fazal Elahi vendor. She denied the suggestion that she was not sister of Fazal Elahi. In addition to her oral statement, she gave evidence of three P.Ws., namely, Abdul Majeed P.W.2, Muhammad Khan P.W.3 and Nabi Bakhsh, her husband P.W.4, and also tendered in evidence an extract from birth register Exh.P.1, registered sale-deed Exh.P.2, an extract from register haqdaran zamin relating to the land in dispute Exh.P.3. In rebuttal, Qadar Dad, a co-defendant in the suit, recorded his own statement as D.W.1 and denied that plaintiff was related to the vendor. He supplemented his testimony by tendering a copy of the plaint in the connected pre-emption suit, extracts from birth register marked Exhs.D.3 to D.5 in evidence. Upon review of the material brought on record, the trial Court found that plaintiff had succeeded to prove her relationship with the vendor and decreed pre- emption suit in her favour subject to her paying Rs,3,000 as price for the land to the vendecs by a specified date. Aggrieved of the judgment, defendants filed an appeal before District Judge, Gujrat.
4. Their appeal was heard by a learned Additional District Judge who disagreeing with the trial Court, on 28-4-1971, reversed its finding recorded on superior right of pre-emption and after setting aside the decree passed by the trial Court dismissed the pre-emption suit. It was held that oral evidence given to support relationship did not conform to the requirements of section 50 of the Evidence Act and was insufficient to discharge the onus of proof resting upon the plaintiff. Against the judgment of reversal, plaintiff preferred a revision petition in this Court. It was admitted to hearing on 4-11- 1980.
5. ' Seen from the above, central point on which the fate of the case hinged was about relationship of the plaintiff to the vendor. If it is found that on evidence she succeeded to establish it, she would succeed, otherwise, civil revision was bound to fail. As said earlier, she as P.W.1 deposed that she was daughter of Ghulam Muhammad and sister of Fazal Elahi who was son of the same father. In cross-examination, she denied the suggestion that she was not sister of Fazal Elahi. Mian Abdul Majeed, a resident of Miana Kot P.W.2 gave similar statement. He deposed that he knew Fazal Elahi and Mst. Rasool Bibi. They were related to him and belonged to his brotherhood. In cross- examination, he denied the suggestion that Mst. Rasool Bibi was not the sister of Fazal Elahi. Oral statement of P.W.3 on point of relationship of Mst. Rasool Bibi to Fazal Elahi, though brief but was on the same lines. Nabi Bakbsh P.W.4 is husband of Mst. Rasool Bibi. He deposed that his wife Mst.
6. Rasool Bibi is sister of Fazal Elahi. They are daughter and son of Ghulam Muhammad. All the P.Ws.
7. Belonged to village Miana Kot. They belonged to a common tribe of Gujjars. P.W.2 to P.W.4 were octogenarians. P.W.2 was a relation of the plaintiff and the vendor. His statement that he was their relation was not questioned in cross-examination. Similarly, the statement of other P.Ws. That they were from the same tribe was not subjected to cross-examination on behalf of the vendees- defendants. Villages Miana Kot and Musa Kamala lie within a short radius of less than a mile.
8. Inhabitants of so closely located villages belonging to a common tribe and brotherhood are cognisant of inter se relationship. There is no material to hold that plaintiffs shajra existed but was not produced. Therefore, oral evidence was admissible to prove the relationship. Plaintiffs own statement on solemn oath though self-serving but was not devoid of truth. It had its own probative force and could not be kept aside as a valueless piece of evidence. P.W.2 as a relation and member of common brotherhood was possessed of necessary knowledge to depose on contemporary events. Testimony of other P.Ws. Attract similar comment. Exh.P.1, an extract from a birth register showed that on 15-12-1905, a daughter was born to Gama, a Gujjar of Musa Kamala.
9. This document was tendered in evidence by the plaintiff herself to prove her parentage. In absence of effective rebuttal, there is no reason to think that it did not relate to her. Land in dispute is situate in Musa Kamala. Vendor also belongs to Musa Kamala. Plaintiff was married to P.W.4, a resident of Miana Kot. There is some evidence that in the past, Miana Kot and Musa Kamala were part of one bigger village. Therefore, the difference of addresses given in the plaints of pre-emption suits was not of much consequence. Further, non-appearance of the vendor on the side of the plaintiff for giving evidence for her was hardly a circumstance of any weight against her. When the Court has to form an opinion as to the relationship of one person to another, under section 50 of the Evidence Act, opinion expressed by conduct is a relevant piece of evidence. Its essential requirements are: Where the Court has to form an opinion about the relationship of one person to another, the opinion expressed by conduct as to that relationship of a person who either as a member of the family or otherwise has special means of knowledge is a relevant fact. The opinion expressed by conduct made admissible under this section may be of a member of family or an outsider provided the person expressing the opinion by conduct has special means of knowledge. On the nature and kind of admissible evidence under section 50 of the Evidence Act, the Supreme Court, in the case of Shah Nawaz and another v. Nawab Khan PLD 1976 SC 767 (at page 778) observed:- "Under section 50 on the other hand, what is made admissible is the opinion expressed by conduct" as to the existence of a particular relationship and not merely a statement as to that relationship.
10. In other words according to section 50 when the Court has to form an opinion as to the relationship of one person to another, it is the opinion expressed "by conduct" as to the existence of that relationship of any person whether member of family or otherwise who has special means of knowledge on the subject, is a relevant fact. The intention underlying the section is clarified by two illustrations to section 50 according to which the opinion of friends and members of the family who have special means of knowledge is relevant because it is based on the conduct and treatment of the persons concerned. Generally speaking an opinion cannot be a substitute for evidence of facts in issue and is inadmissible under the Evidence Act as hearsay. 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. As observed in Ghulam Muhammad v. Allah Yar PLD 1965 Lah. 482 mere rumour or gossip that A is related to B, unaccompanied by conduct on their part and on the part of their friends and relations is a mere hearsay and therefore inadmissible to prove the relationship.
11. Whether the statement by a person has any basis which could give it the value of admissibility, the witness must first disclose his source of information about relationship sought to be proved. Where therefore, the witness gives no evidence of the conduct on which his information about the relationship is based, the opinion of the witness about the relationship would be irrelevant and inadmissible in evidence."
12. "Of them only Mahmood Khan D.W.1 aged 62, and his son Ahmad Khan.
13. ' In the immediately succeeding paragraph of the judgment, while dealing with the testimony of two witnesses, their Lordships of the Supreme Court observed:-- ' D.W.2 aged 45 belong to village Ghari Gulla where Budhe Khan was resident. The former also claims that he is related to Budhe Khan as the witness's grandfather, was younger brother of Budhe Khan. Therefore, by virtue of this relationship it may be stated that both these witnesses had special means of knowledge to testify the relationship."
14. ' Decision in the-case of Ghulam Muhammad and another v. Allah Yar and others PLD 1965 (W.P.)
15. Lahore 482 by Muhammad Akram, J., as his Lordship then was, approvingly referred to. It may be noted that case before the Supreme Court was with regard to a disputed paternity of Nawab Khan and on the type and quantity of evidence led in that case, it was held that Nawab Khan was not proved to be a son of Budhe Khan. Among other distinguishing features of that case, one important factor adversely commented upon was the personal non-appearance of Nawab Khan in the witness-box to depose on his relationship to Budhe Khan. Therefore, the Supreme Court case was not much helpful for deciding of the disputed question of relationship in this case. Dealing with a similar point relating to opinion evidence, this Court, in Haji Illahi Bakhsh and others v. Mst. Nawab Bibi and others PLD 1966 (W.P) Lahore 664, after referring to the decision in Ghulam Muhammad's case (supra) observed:- "With regard to most of the observations made by my learned brother with reference to section 50 I am in respectful agreement but the point where I have found difficulty in accepting his view, and I say so with great respect, is with regard to the general proposition that the evidence of relationship would be 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 A was the son of the deceased or B was his wife, 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.
16. 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 of 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 Act has thus observed:- "Members and friends of the family will be presumed to have special knowledge of the relationship and their conduct will not only be relevant under this section but Courts should attach considerable importance to it in determining the question of relationship."
17. ' The learned author has in support of this view relied upon Muttuswamy v. Venkataswara 12 M I A 203 (1), Khajah Hidayat v. Rai Jan 3 M I A 295 (2) and Fazilatunnisa v. Bibi Qamarunnisa 9 C W N 352 (3).
6. Mr. Khalilur Rehman has also relied on the Privy Council case of R.L. Reddi v. R.V. Reddi AIR 1937 PC 201 which case has also been relied upon by Muhammad Akram, J. In that case their Lordships after reference to section 32 and section 50 of the Evidence Act have observed that the said Act does not contain any provision making the evidence about the general reputation admissible as proof of relationship. But that was a case where evidence was sought to be admitted under the 5th clause of section 32, that is to say, oral evidence of verbal statement made by persons who are dead and who had special means of knowledge. That would be an entirely different situation and with respect to Such witnesses the rigour of section 50 would have to be applied with full force and such an evidence would not be admissible unless foundation for it was laid by the party who had produced them. In the. Privy Council case one witness who was aged 33 years had deposed about the events relating to relationship of 45 years or more. It was in that context that their Lordships had observed that "it cannot rightly be left to time or chance or cross-examination to disclose whether a statement has any basis which could give it value or admissibility". This observation could not be applied to witnesses who were speaking of contemporary events in regard to relationship and who by their position must be presumed to have the special knowledge to speak about it."
18. ' In the later part of para 7 of the judgment, Court further observed:- "All these witnesses belong to the same village and considering that most of them were related to other members of the same Baradri and what they deposed related to contemporary events of which they had direct knowledge, I have had no hesitation in holding that their evidence as to the said relationship was rightly admitted and believed by the learned District Judge."
19. Law of evidence lays emphasis on quality of evidence, rather than its quantity. Evidence as to relationship must also be judged in that context and discretion of the Court to accept or reject the evidence of a witness as to the relationship was not fettered. The fact in issue in the case was the relationship of the plaintiff to the vendor, it can be said to have been proved only if after weighing the various probabilities, a preponderance in favour of existence of the above-said fact in issue is found to exist. In Rishi Kesh Singh and others v. The State AIR 1970 Allahabad 51, it was held that definition of word 'proved', 'disproved', and 'not proved' shows that the burden of proof is to be judged on the basis of "test of probabilities" or "preponderance of probabilities" in the same manner as the Court records a finding in a civil proceeding. In criminal cases a rigorous proof is required for prosecution to establish its case beyond reasonable doubts. On the question of standard of proof in regard to a fact in issue, the test laid down is: Would a prudent person after considering the matters before him either believe it to exist or consider its existence so probable under the circumstances as to act upon the supposition that it exists. While applying the test of a prudent person for holding a fact in issue proved, the Court is bound by a rule coming from itself which dictates a conscientious and reasonably prudent exercise of judgment. In Mirza Khan and another v. Muhammad Ilyas PLD 1991 SC 383, also a pre-emption matter resting on plea of relationship, the Supreme Court observed: "A deposition on oath by a party in his own favour nevertheless remains evidence". Judged in the above context, plaintiff's evidence was neither biased nor infirm. It had the ring of truth in it. Defendant in his statement casually denied the plaintiff's relationship to the vendor and did not corroborate it by other material. It is agreed that extracts from birth register produced in defence were neither relevant nor helpful. Upon existing record, there was no reason to doubt the truth of the statement of the plaintiff and her witnesses on the point of relationship. Plaintiff gave overwhelming evidence to establish that she was sister of the vendor. Defendant was unable to rebut that evidence.
20. ' Having regard to the aforesaid, I am unable to uphold the impugned-judgment of learned Additional District Judge. Consequently, civil revision is allowed, impugned judgment and decree of the lower appellate Court are set aside and those of the trial Court restored with no order as to its costs.
21. ' Records be returned.