GUL ZARIN KIANI, J.- Point for decision in the second appeal was whether Rehmat son of Ranjha appellant since deceased now represented by his heirs was a nearer collateral of Mahand- propositus for inheriting the land left by him to the exclusion of others. The trial Court had dismissed the suit instituted against him by the plaintiffs. In appeal by them, learned District Judge, Sialkot reversed the judgment of the trial Court and decreed the land in favour of Allah Ditta son of Karam Dad, one of the plaintiffs, now respondent No.1 before this Court. He was held a nearer residuary of Mahand deceased.
2. Necessary facts bearing on the decision of the point in the second appeal were briefly these:- Mahand son of Ditta was owner of 117 kanals and a tew marlas ol land in revenue estate Vanjal of tehsil and district Sialkot. He died issueless. By mutation No. 933 sanctioned on 15.6.1965, his estate was distributed by the Revenue Officer to Rehmat son of Ranjha. He was found a nearer V akjaddi of deceased Mahand and was held entitled to inherit his land.
3. On 12.12.1967, Allah Ditta son of Karam Dad; Muhammad Shall, Abdul Ghani, Said sons of Allah Dad jointly instituted a civil suit against Rehmat son of Ranjha, Muhammad Boota, Said, Faiz sons of Ilam-ud-Din, Rehmat Khan. Ahmad Khan sons of Ali Muhammad for possession of the land in dispute once held by Mahand on the ground that they alone were entitled to it as preferential heirs of the deceased. Plaintiffs were respondents No.1 to 4 in the second appeal. Other respondents were mortgagees of the land from Mahand deceased.
4. Rehmat son of Ranjha submitted a separate written statement. His case was that he was the only true heir of Mahand deceased and the plaintiffs were not his heirs. Defendants No.2 to 4 were proceeded against ex-parte at the trial. It gave rise to following issues for determination:-
1. Whether, the plaintiffs are the sole heirs of deceased Mahanda?OP.
2. Whether, defendant No.1 is the sole heir of the deceased?OD.
3. Relief.
In support of the suit, plaintiffs examined Said Ahmad P.W.1 and one of them, namely, Muhammad Shafi appeared as a party-witness as P.W.2. In addition, seven documents were tendered in evidence. These were an extract from Jamabandi for the year 1965-66 pertaining to the land in dispute-Exh.P.1, copy of pedigree-table for the year 1893-94-Exh. P.2, application in original for a copy of Shajra Nasab for the year 1865 upto date-Exh. P.3, an extract from land records for the year 1865 pertaining to the land owned in the village by Boota, Karatp Dad, Imam Bakhsh sons of Sazawar-Exh. P.4, copy of an extract from land records for the year 1865 pertaining to the land owned in the village by Yara son of Peera- Exh. P.5; an extract from land records relating to the year 1865 pertaining to the land in the village Vanjal owned by Jawaya son of Peera-Exh. P.6 and the copy of disputed inheritance mutation No.933-Exh. P.7. With the above oral evidence and documents marked Exhs. P.I to P.7, plaintiffs evidence was closed. Thereupon, Rehmat son of Ranjha defendant No.1 entered upon his defence. He recorded his own statement as DW-1 and in his testimony tendered copy of pedigree-table prepared for the year 1956-57 Exh. D.1, copy of pedigree-table for the years 1913 14 Exh. D.2, original application for copy of pedigree-table for the year 1865- Exh. D.3. Moharrir Inspection Sadar Qanungo, Sialkot appeared as DW-2. He gave evidence that pedigree-table for the year 1865 was not attached with the Misl-e-Haqiat. At the end, the counsel for Rehmat defendant tendered in evidence an extract from land records for the year 1865 pertaining to the land belonging to Yara and Jawaya sons of Peera. It was either Peera or Heera. It could be read both ways. With the production of above documents, defence evidence was closed.
5. Upon analysis of the oral and documentary evidence noticed above, the trial Court found that the plaintiffs had failed to establish that they were residuaries of Mahand deceased and were unable to link them with his ancestor, which in this case indisputably was Heera. Issue No.1 pertaining to the plaintiffs entitlement as heirs of Mahand was dealt with in a short paragraph by the trial Court and found against them. The trial Court under issue No.1 held, "According to learned counsel for plaintiffs they are descendants of Sazawar who according to plaintiffs is the brother of Yara, the grand-father of Mahand deceased. Plaintiffs produced pedigree-table Ex. P.2. This table does not show that Sazawar is brother of Yara. Said Ahmad P.W.1 stated that Sazawar was brother of Yara. He admits in cross-examination that this relation was told by plaintiffs. As such, he has no independent knowledge and cannot be relied upon. The result is that plaintiffs have failed to establish that they are residuaries of Mahand deceased because they have not been able to link their live to deceased to an ancestor who might have been common to Mahand deceased. I find that plaintiffs are not heirs of Mahand deceased. Issue is decided in negative."
6. Plaintiffs preferred an appeal from the judgment and decree of the trial Court to the learned District Judge Sialkot. Appeal was allowed and the suit was decreed in favour of Allah Ditta alone for the entire land left by Mahand deceased. Other heirs, namely, Muhammad Shall, Abdul Ghani and Said were not found entitled to inherit the land left by the deceased. Learned District Judge extensively referred to the evidence adduced at the trial and relying upon a case in Jati and another v. Girja Singh-A.I.R. 1937 Lahore 917 found that yara, Jawaya and Sazawar decended from a common ancestor Heera or Peera and Allah Ditta being a nearer residuary was entitled to succeed to the estate of the deceased Mahand. Aggrieved of the judgment and decree given in first appeal, Rehmat son of Ranjha preferred second appeal to this Court. It was admitted to hearing on 3.2.1972.
Rehmat died in course of the. His legal representatives were substituted for him on record under an order of this Court.
7. Seen from the above, only question for consideration was the inter-se relationship of the parties to the propositions and about their common ancestor. Oral evidence led by the plaintiffs was not much helpful in this behalf. Said Ahmad P.W.1 was not a family relation. He had no special means of knowledge of the parties 'genealogy. Nor did he profess about it in his evidence. On his own deposition, the parties pedigree was disclosed to him by the plaintiffs. As far his own pedigree, he was not much aware of it. He deposed in his cross-examination that he had seen Sazawar and Yara and they had no other brother. A little later in his cross-examination, he deposed that Sazawar died hundred years ago; Yara ninety years ago and Jawaya eighty years ago. He himself was sixty years of age at the the of recording of his statement in the trial Court. His testimony was evidently self-contradictory. Furthermore, he was not old enough to be witness of contemporary events.
Therefore, his testimony to establish plaintiffs relationship with the propositus was insufficient and led xx nowhere. It did not meet the requirements of Section 50 of the Evidence Act and, therefore, was not reliable. Out of the plaintiffs, Muhammad Shafi gave his own statement as P.W.2. He tried to connect Sazawar with Mahand through their common ancestor Peera or Heera. He gave an account of their pedigree by linking them together with Peera or Heera. There was not much cross- examination on his deposition. However, he denied the suggestion that Yara and Jawaya were brothers. He admitted that he had obtained a copy of Shajra Nasab to establish relationship between Sazawar and Yara. In defence, Rehmat defendant deposed that he was son of Ranjha son of Ghaseeta son of Jawaya son of Peera/Heera. About Mahand deceased, he deposed that he was son of Allah Ditta son of Yara son of Peera/Heera. He further deposed that yara and Jawaya were the only sons of Peera. In cross- examination, he expressed his ignorance about any other son of Peera. Whenpressed further, he deposed that his grand-father Ghaseeta had told him that Peera had only the above two sons. Onus to prove relationship set up in the plaint lay upon the plaintiffs.
It was for the persons who claim to succeed to certain land on the ground that they were descendants of a common ancestor to prove their relationship by convincing evidence. Allah Ditta plaintiff had not entered the witness-box. Testimony of Muhammad Shafi P.W.2 by itself, in absence of strong corroboration from other sources was inadequate to prove the pedigree deposed by him.
Pedigree-tables Exhs. P.2, D.I and D.2 did not disclose parentage of Sazawar, Yara and Jawaya. They were not linked together in them. In default of connecting links in the pedigree-tables, their mention in parallel boxes in the same line was not a presumptive proof of their common parentage. Placement of names of persons in a line in parallel boxes of pedigree-table could be a mere coincidence or matter of convenience for the person recording the pedigree. Therefore, entries in the pedigree-tables Exhs. P.2, D.I and D.2 did not firmly assist on the decision of common parentage of Sazawar, Yara and Jawaya. As far the records of proprietary land held by the parties in the village in the year 1865 Exhs. P.4, P.5 and P.6, those also were not assisting on the point. Exh.PA, indicated the Boota, Karam Dad and Imam Bakhsh sons of Sazawar owned agricultural land in the village Vanjal. It was in their joint ownership. It did not disclose the source of their acquisition. It only showed that they were owners of the land in the village. How it came to them i.e. Succession or inter-vivos transfer was not clear. Exh. P.5, an extract from land records of the same period showed that Yara son of Peera held the land in the village. Similarly, Exh. P.6 showed ownership of the land in the village by Jawaya son of Heera/Peera in the year 1865. Exhs. D.4 and D.5 were identical as the Exhs. P.5 and P.6. Learned District Judge, on a reference to case of Jatt and another v. Girja Singh- AIR 1937 Lahore 917 drew a presumption from the entries in Exh. P.4 to P.6 that the proprietary land must have descended to the persons recorded in them from a common ancestor. Facts of the instant case were not closely parallel to the facts in the precedent case. Therefore, the rule of law laid down in it was inapplicable. There the land was jointly held by first cousins at the the of first settlement from the common ancestor in precisely the same shares as ancestral land would be held. Thereupon, it was presumed that the land was descended from the common ancestor in absence of any indication that the land was self-acquired, in the present case, Yara, Jawaya and sons of Sazawar hadid separate proprietary land in the village. They were not shown in joint ownership of the land in the year 1865. Merely the stance that, the holding of each was approximately of the same size was not a safe-guide to presume that it was once held by their common ancestor and had descended to them from him. Decision on civil rights of the parties to immovable property could not be allowed to rest on slim material of a week texture. Judgment of a Court must be based upon strong evidence and not mere suspicions or conjectures. Later were not a substitute for proof of xx point at issue. As far the pedigree prepared on Exht. P-7 showing Sazawar, Yara and Jawaya as sons of Heera/Peera at the instance of Rehmat son of Ranjha, it was not put to him when he examined himself as a witness in the case. Without confront^ him with the aforesaid pedigree, its correctness could not be presumed. Furthermore, in the inquiry and the order made on mutation No. 933, it was found as a fact that Yara and Jawaya were real brothers and Sazawar was not proved to be their full brother. Hence, his line of heirs was excluded from inheritance. In case the pedigree prepared on the mutation-sheet was taken as correct by the Revenue Officer as urged by learned counsel for respondents, his order must have been altogether different. It gave a clear inference that the pedigree on the mutation sheet was not accepted as correct by the Revenue Officer. I must observe that I examined the record the and again to avoid a possible pit-fall leading to an error in the judgment on the valuable rights of the parties to the land in dispute. At the maximum, it could raise only a mere suspicion about the correctness of the plaintiffs relationship to Mahand but it did not attain the height of legal certainty which alone must be the ultimate guide for decision of a dispute by a Court.
8. Before concluding, it was necessary to notice that the learned counsel for the appellant had relied upon cases reported as PLD 1965(W.P) Lahore 482, PLD 1966 (W.P) Lahore-664, PLD 1976 S.C.
767,1981 CLC 1301 on the standard of proof for establishing relationship by opinion expressed by conduct. I have really benefited from these judgments.
9. In view of the foregoing discussions, I would accept the second appeal; set aside the impugned judgment and decree of learned District Judge, Sialkot and restore those of the trial court with no order as to costs in this court.
10. Original records shall be returned. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.