1. ' MUHAMMAD AFZAL ZULLAH, CJ.---This appeal through leave of the Court is directed against dismissal by the High Court of appellant's Civil Revision which had arisen out of the dismissal of her suit for declaration relating to inheritance of her husband.
2. ' The case has a chequered history. Mst. Rasool Bibi appellant claims to be the widow of Barkat the last male holder who died in 1972. The plea of the appellant was that when she married Barkat as a second wife, earlier he was married to Mst. Saleh who had died in 1970. Barkat had no issue from his earlier marriage, therefore, it seems that he married Mst. Rasool Bibi, 20 years younger to him, so as to leave a child.
3. ' The mutation of inheritance was sanctioned in favour of Nawab of the respondents' side as collateral, behind the back of Mst. Rasool Bibi. She agitated the matter for review of the mutation.
4. Her application was permitted by the Collector. Nawab, to frustrate the review of mutation, brought a suit for declaration that he alone was the heir of Barkat and that Mst. Rasool Bibi was not his widow. This suit was ultimately compromised. Mst. Rasool Bibi purported to have given up her claim to the land in dispute but without giving up her claim as widow of Barkat. This is not all. It appears that before the compromise another party; Walayat who also claims to represent another fine of collaterals filed a suit against Nawab. That suit also ended in compromise/family settlement between them. In the suit filed by Walayat, Mst. Rasool Bibi made frantic efforts to become a party but without any success, up to the High Court in its revision jurisdiction. She also then filed writ petition in the High Court but the same was dismissed because in the meanwhile she was advised to file an independent suit. The present appeal has arisen out of that suit. She claimed to be widow of Barkat and disowned the compromise on the ground that she being a lady was not properly assisted when she was made to thumb-mark the application for compromise with Nawab. Her suit was dismissed. Her appeal met the same fate and civil revision also having been dismissed by the High Court leave to appeal was granted in order to examine the question; as to whether, the appellant was not the widow of Barkat and whether the bar of res judicata would affect adversely, her suit.
5. It is admitted position that the first suit filed by Nawab against Mst. Rasool Bibi was not decided as a result of contest between the parties and the so-called compromise, as has been argued by the learned counsel for the appellant, was in reality not a compromise. And further that the principles laid down in the case of Ghulam Ali and another v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 not having been followed no decree could be passed in favour of Nawab in the suit as a result of the so-called compromise.
6. ' For all these reasons it did not remain a moot point that the suit of Mst. Rasool Bibi was barred by rule of res judicata.
7. ' The next question in the beginning seems to be formidable in so far as the appellant's position is concerned. All the three Courts having rendered concurrent findings that she was not a widow of Barkat, we with the help of the learned counsel have gone through the evidence. With respect the impugned judgment in this case suffers from misreading of evidence as also non-application of some of the well-known principles.
8. ' The appellant relied upon a written Nikahnama. The Courts below assumed that all the persons mentioned in the Nikahnama were to be examined in the Court as if the formality of Nikah had to be repeated. ' This is now settled that for establishing the Nikah, the Registrar or for that matter all the witnesses need not appear. One or more of them and/or other witnesses can prove the Nikah.
9. In this case it was not even noticed that one of the persons who appeared as the appellant's witness was mentioned in the Nikahnama. The counsel for the appellant when examining the witness as P.W.2, did not at all realise that he was mentioned as a witness in the Nikahnama; and questioned him only generally with regard to the appellant being the wife of Barkat deceased. It was in lengthy cross-examination to which the witness was subjected to by the learned counsel for the respondents' side that it came to light that he had witnessed the Nikah. He also offered and made statement on oath when under cross-examination certifying the said Nikah. His testimony was not looked at in this light. Another witness named Nazar Muhammad P.W.3 was also cross- examined at length. His examinationin-chief is not much helpful but through cross-examination conducted by the respondents' counsel it was revealed that not only the appellant but also the collaterals i.e, the respondents' side continued to live together in the house of Barkat; even after his death--the appellant by virtue of her being a widow.
10. ' This feature of the case gives full support to the explanation of the appellant during the course of the trial of her suit, that the compromise was in fact on the basis that she should not insist on getting the land through Court and after the matter is compromised in Court sbe will be allowed her status and share as widow of Barkat. If this would not have been so she would not have at all been allowed to live in the house of Barkat representing herself as his widow. Not only this the combined reading of the oral evidence which was led from both sides in abandance gives an irresistible impression that Mst. Rasool Bibi confidently and assertively by her conduct, right from the time she became aware of the mutation sanctioned in favour of Nawab uptil now the stage of the litigation in this Court, asserted that she was lawfully wedded wife of Barkat. This aspect of the case of her having asserted so in her community was even accepted under cross-examination by the respondents' witnesses-in particular by D.W.4.
11. ' In the light of the foregoing discussion we are satisfied 'that the appellant has adequately discharged the burden of showing that she was the widow of Barkat. Accordingly, this appeal is allowed, the impugned judgments and decree are set aside and her suit is decreed to the extent of 1/4th of her share from the property left by Barkat deceased.