' This Regular Second Appeal is directed against the judgment and decree of the Additional District Judge, Montgomery, now Sahiwal, dated 20-1-1965 whereby he reversed the judgment and decree of the learned Civil Judge, Pakpattan dated 10th September, 1964 and as a consequent thereof decreed the suit filed by the respondent.
2. The dispute in this case relates to inheritance of one Hamid son of Shamira who died in Chak No, 82/1, Tehsil Pakpattan, District Sahiwal on 17th March, 1962. A mutation of inheritance was attested on 19th February, 1964, according to which, Mamoon, respondent the only brother of deceased Hamid, was allowed 3/4th share in his estate while the remaining 1/4th was mutated in the name of Mst. Khanoo alias Khanum as widow of Hamid deceased.
3. On 3rd of April, 1964, a suit for declaration was filed by Mamoon respondent against the appellant challenging the aforesaid mutation on the ground that Hamid had divorced his wife Mst.
Khanoo alias Khanum appellant during his lifetime and as such she was not an heir of the deceased and not entitled to any inheritance. This suit was contested by the appellant and on the pleadings of the parties the learned trial Court framed the following two issues:-
(1) Whether Hamid divorced the defendant during his lifetime?
(2) Relief.
4. The parties produced their evidence in support of their respective claims. The learned trial Court by means of its judgment and decree of 9th September, 1964 dismissed the suit filed by the respondent. Under issue No,1 it was held by the learned Civil Judge that the respondent had failed to prove the dissolution of marriage through divorce. The learned trial Court specifically took notice of the fact that during the course of mutation proceedings the respondent never took up the plea that Mst. Khanoo had been divorced by Hamid. An appeal was filed by Mamoon which was heard by a learned Additional District Judge who proceeded to accept the same on 20-1-1965 and held that Hamid had during his lifetime divorced Mst. Khanoo. Hence this appeal.
5. Many notices were sent to the respondent by this Court but he failed to enter appearance. Lastly a notice was issued to him for 29-10-1988 on which it was reported by the process-server that the respondent has refused to accept service and the service was effected through affixation. This report is supported by an affidavit by the process-server. The appeal is, therefore, being heard in the absence of the respondent.
6. The record has been perused with the assistance of the learned counsel for the appellant. The marriage between the appellant and Hamid stands admitted. The only dispute, however, is as to whether Mst. Khanoo was divorced by Hamid deceased during his lifetime. Under the law, once a marriage is admitted, there is a presumption regarding its continuance and it is for the person alleging the cessation of such relationship to prove the same. In the present case, onus heavily lay on the respondent to show that Hamid had divorced Mst. Khanoo during his lifetime.
7. The learned trial Court for the detailed reasons recorded by it had come to the conclusion that such burden was not discharged by the respondent-plaintiff. This finding was, however, reversed by the learned Additional District Judge. Since the judgment of the learned Additional District Judge was at variance with that of the learned trial Court. I respectfully following the dictum of the Supreme Court in Allah Din v. Habib (PLD 1982 SC 465) have examined the reasons advanced by the two Courts below in support of their respective findings with reference to evidence on the record and have reached the conclusion that the finding of the first appellate Court cannot be sustained.
8. According to the case set up by the respondent before the learned trial Court, both in the plaint as well as in evidence, a stamp paper valuing Rs,10 was purchased by Falak Sher, P.W. 3, from Mateeullah. P.W.2, Stamp Vendor, on which the divorce deed, was allegedly written and later on handed over to Mst. Khanoo. Hakim P.W. 4 and Bakhtawar P.W. 5, were allegedly marginal witnesses of the divorce decd. The learned trial Court had disbelieved Matecullah, Stamp Vendor, with regard to the sale of the stamp paper on which divorce deed was allegedly prepared. It is interesting to note that the learned lower appellate Court observed in its impugned judgment that the learned counsel appearing for Mamoon, was not able -to meet the reasons given by the trial Court for disbelieving the version regarding the purchase of stamp paper. If this he so, the entire story regarding execution of the divorce deed on the stamp paper falls to the ground. There was consequently no occasion for the lower appellate Court to have held that the divorce deed was executed by Hamid. The findings of the learned lower appellate Court are self-contradictory and not sustainable.
9. Another important feature of the case is that during the course of proceedings for. Mutation (Exh.P.2) Mamoon respondent had taken up the position that Hamid never married Mst. Khanoo. In the suit, however, the marriage between Hamid and Mst. Khanoo was admitted but dissolution was pleaded by the respondent. These two pleas are obviously diametrically opposed to each other and speak volumes about the hollowness of the claim of the respondent. It appears that the respondent has been taking different pleas at different times in order to deprive Mst. Khanoo of her, inheritance. No satisfactory explanations of this contradiction have been given by the respondent even when appearing as his own witness as P.W.
6. He has admitted in his cross-examination that he did not inform the Tehsildar about Talaq. In this view of the matter it is quite obvious that the plea now raised by the respondent in the suit was clearly an afterthought.
10. The reliance of the learned Additional District Judge on the oral evidence is based on misreading of the record. The learned Additional District Judge observed that P.W. 3, Khan was a Lambardar of the village and hence respectable person. Khan while appearing as P.W. 3 has nowhere stated that he was Lambardar of any village. But on the other hand, he has admitted that there were two. Lambardars of the village and none of them was present at the time of the Talaq.
According to this witness, it was he who had scribed Talagnama while according to the statement of P.W. 4 Hakim, the brother of Khan Muhammad Lambardar was the scribe. The learned Additional District Judge, while relying on the oral evidence has observed that the witnesses were not cross- examined and as such their testimony stood unchallenged by the appellant. This observation is again based on misreading of record. It is evident from bare perusal of the statements of the witnesses that they were thoroughly cross-examined by the learned counsel appearing for the defendant. Furthermore, while relying upon the testimony of these witnesses the learned Additional District Judge completely lost sight of the fact that all the said witnesses had deposed about the execution of the Talaqnama on the stamp paper which fact had been found to be incorrect by the learned Additional District Judge himself. The failure to notice this important factor, has resulted in miscarriage of justice. In these circumstances, the respondent failed to discharge the onus by producing any convincing evidence and the learned Additional District Judge acted illegally in setting aside the finding of the learned trial Court on issue No,1. The judgment and decree of the learned appellate Court, therefore, cannot be sustained.
' For the foregoing reasons I accept the appeal, set aside the impugned judgment and decree of the lower appellate Court and restore that of the learned trial Court. Since the respondent has not appeared to contest the appeal, there shall be no order as to costs.