1. ' The only crucial question, falling for determination in four second regular appeals in hand, bearing Nos. 369, 371, 438 and 483 of 1977, is whether Mst. Kariman and Mst. Rahiman were sisters of Sodagar the father of Ghulam Hussain and Ghulam Bheek original right-holders and whether Abdul Qadir and Mang a, as their legal heirs are entitled to inherit 3/4th share of the legal estate left by Ghulam Hussain and whole of the legal estate left by the other right-holder Ghulam Bheek.
2. This question has come to this Court in following circumstances.
2. Ghulam Hussain and Ghulam Bheek brothers, were owners of agricultural land in the area of Mauza Dinarpur and Mauza Kalsani, in Tehsil and District Ambala, which now form part of East Punjab (India). Ghulam Hussain was the husband of Mst. Noori/herein appellant in Second Appeals Nos.369 and 371 of 1977. He died in India before 1947. His legal estate, so, was mutated in the name of Mst. Noori as a limited owner. With the advent of partition, Mst. Noori and Ghulam Bheek came to Pakistan as displaced person and were allotted the suit land (completely described in the plaints and shall be hereinafter referred to as 'suit land' or the 'legal estate of Ghulam Hussain and Ghulam Bheek). Ghulam Bheek also died in Pakistan without leaving any issue. Mutation of inheritance of his legal estate was sanctioned in favour of Mst. Noori on 10-2-1954, vide Mutation No,4. With the promulgation of West Pakistan Muslim Personal (Shariat) Application Act (V of 1962), Mutation No,1907 was attested by which Mst. Noori was given 1/4th share as widow of Ghulam Hussain in his legal estate while the remaining 3/4th of his estate was mutated in favour of Abdul Qadir and Mangta. The estate left by Ghulam Bheek was given to Abdul Qadir and Mangta (now deceased and represented by respondent No,5). This mutation led to commencement of litigation between the parties.
3. Three suits titled "Mst. Noori v. Ibrahim etc.," "Ibrahim v. Mst. Noori etc." and Mangti v. Mst. Noori etc." were instituted. The case of Mst. Noori, according to her plaint, was that she was widow of late Ghulam Hussain and was allotted the rights of Ghulam Hussain under the Settlement Scheme as absolute owner; that she was cousin of Ghulam Bheek and was, therefore, entitled to inherit his legal estate. For her claim she banked upon following genealogical table: {{ TABLE TEXT}} Imam Bakhsh Nanoon Sodagar Kanan Shahzada Mst. Noori (without (died in life (Plaintiff) issue) time of his father)
3. Ghulam Hussai (alias Sahina) (without issue- died in India)
4. (Mst. Noori wife) Ghulam Bheek Habib Khan (without (without issue-died issue). in Pakistan)
5. ' Abdul Qadir and Mangta, in second suit, contended that Mst. Noori was holding suit land as limited owner under Custom; that she was the wife of Ghulam Hussain but was neither related to Ghulam Hussain nor to Ghulam Bheek; that Abudi Qadir was the son of Umar Bakhsh who was the son of Mst. Rahman who was the real sister of Sodagar father of original right-holders. The plaintiff further narrated that Mangta plaintiff was the son of a Sodagar who was son of Mst. Kariman/ the other sister of Sodagar father of the right-holders; that Mst. Kariman and Mst. Rahiman and Nanoon were the sisters and borther of Sodagar. On the strength of this family descent, it was claimed that they were reversioners of the right-holders and were so, entitled to inherit the entire legal estate left by Ghulam Bheek and 3/4th share out of the estate of Ghulam Hussain alongwith Mst. Noori. Pedigree- table claimed by these plaintiffs is as follows: {{TABLE}} Imam Bakhsh I I I Kariman Rehiman Sodagar Nanoon I I I Sodagar Umar Bakhsh I I I I I Kanan Shahzada Mangta Abdul Qadir (without (without I I issue) issue)
6. I I I I I Akhtari Sughran Riasat I All I I Rafician Ibrahim 1 I I Habib Khan Ghulam Ghulam (without Hussain Bheek issue)
7. ' The third suit was brought by Mangti on the premises that that Mst. Kariman and Mst. Rahiman were not the sisters of Sodagar; that Imam Bakhsh, who was father of Sodagar, had one brother Gandila who was survived by three sons Nathan, Mahrab and Murad; that Nathan was survived by Namad, Burkhurdar, and Jeera; that she was the daughter of Burkhurdar and so was entitled to inherit the suit land. For the proper appreciation of her claim it would be appropriate her Pedigree- table given in her plaint. It is as follows: {{TABLE}} Karamalli I________________ I________________ I Jhandu Kanwar Meed. All 1 I Ghandila I I Mama n I j 1 Ghumana I Bahala (without issue)
8. (Wife Mst.
9. Bhagan)
10. I Nathan I I 1 I Mehra b (without issue) I Murad (without issue)
11. 1 1 I Namad Barkhurdar Jeera 1 I I Mst. Mangti Nathoo (Defendant (Wife No, 1) Azizo)
12. 1I I Sodagar Tangla - Nanoon I (without I I issue) Shahzada 1 (without I issue)
13. 1 1 1 Ghulam Hussain Ghulam (Wife Bheek Mst. Noori)
14. ' The fourth set of claimants comprised of Ibrahim, Niaz, Muhammad, Sanjrit and Babu herein respondents Nos. 7 to 10. Strangely enough, they did not file any suit to seek declaration of their rights. They, however, in their written statement laid claim that Mst. Noori was neither related to Ghulam Hussain nor to Ghulam Bheek and in fact they were the legal heirs of the above right- holders. They relied upon their claim upon the following relationship with the right-holders; {{TABLE}} Karam All 1 Kanwar I I Imam Bakhsh Gadila I 1 I Nathan Amri Nanoon Sodagar I I I Barkhurdar Ghulam - I I Qadir I I I I I I I Nathoo Mangti Latif I I ____________________ I_____ I I I I II 1 Abdur Abdul I I Niaz Rehman Rahim I 1 Muhammad I I 1 I I Ghulam Ghulam Habib Khan Hussain Bhiek (without issue)
15. (without (without I issue wife issue)
16. Noori)
17. I I I Kanan Shehzada Umri (without issue) (without 1 issue) Shahn awaz Baboo
4. The above suits were consolidated by the Court of trial. Mst. Noori was treated as plaintiff and other plaintiffs as defendants. Abdul Qadir and Mangta died and were substituted by respondents Nos.1 to 5. Mst. Mangti was described as defendant No,6 while defendants Nos.7 to 10 are claimant who had not filed suit yet they came forward with a claim that they were actual legal heirs of Ghulam Hussain and Ghulam Bheek. On the divergent pleadings of the parties, eleven issues were framed. Arguments were addressed before me by the learned counsel for the parties on issues Nos. 1, 2, 8 and 9. These are, therefore, being reproduced below:
(1) Whether the plaintiff was owner of the land in suit? OP
(2) Are the defendants the heirs of Ghulam Hussain and Ghulam Bheek? OD.
(3) Was the plaintiff entitled to succeed to the land left by Ghulam Bheek as full owner? OPD
(8) Are defendants Nos. 4 to 9 also entitled to succeed to the land in suit? OD
(9) If issue No,4 is proved whether the right of the plaintiff as limited owner of the land in suit has not been extinguished according to Shariat Act of 1962? OP
(11) Relief.
5. In order to substantiate their respective claims, the parties led oral as well as documentary evidence. Upon the consideration of the same, the learned trial Court found that Mst. Noon was the wife of Ghulam Hussain; that the parties were governed by the Custom; that with the promulgation of Act V of 1962, the estate was to devolve according to Muslim Law of Inheritance; that Mst. Noon as widow, was entitled to inherit 1/4th share from the legal estate of Ghulam Hussain and his remaining estate was to devolve upon Abdul Qadir and Mangta who were legal heirs of Mst.
18. Kartman and Mst. Rahiman who were the sisters of Sodagar/father of right-holders; that Mst. Noon was neither related to Ghulam Bheek nor to Ghulam Hussain. On the claim of Mst. Mangti, it was found that on the principle that nearer excludes the remoter, she was not entitled to inherit the legal estate left by right-holders. On these conclusions, the learned trial Court decreed the suit filed by Mst. Noon to the extent of 1/4th share in the estate left by Ghulam Hussain; that the suit of Abdul Qadir and Mangta was decreed to the extent of 3/4th of estate of Ghulam Hussain and to the extent of legal estate of Ghulam Bheek. Resultantly the suit of Abdul Qadir and Mangta was decreed to the extent of 3/4th share of the estate of Ghulam Hussain and to the extent of entire estate left by Ghulam Bheek. The suit of Mangti was dismissed. This happened vide consolidated decision dated 26-1-1973. Against this decision, three appeals were filed which, too, were dismissed by the learned District Judge, gargodha vide consolidated decision dated 14-9-1977. This is how these four appeals have come to this Court. R.S.As. Nos. 369 and 371 of 1977 are by Mst. Noon R.S.A.
19. No, 348 is by Mst. Mangti and R.S.A. No, 483/77 is by Abdur Rahim and three others/defendants Nos.
20. 7 to 10.
21. 5-A. The arguments advanced by Ch. Khurshid Ahmad, learned counsel for Mst. Mangti can be conveniently summarised below:-- ' Firstly, That Mutation No, 369 pertaining to Mauza Kalsani, Tehsil Thanisar, District Karnal was produced by Mst. Mangti before the trial Court; that it was sealed on 18-1-1966 and was not admitted into evidence. The learned trial Judge, while dealing with the question of its admissibility came to the conclusion that the copy of mutation could not be read into evidence as it was not obtained in accordance with the mandatory mechanism embodied in section 78(5) of the Evidence Act and so excluded it from consideration. According to the learned counsel, the learned first Court of appeal also refused to read the above document on the same premises. In this factual background, the appellant/Mst. Mangti obtained the certified copy of the aforesaid mutation alongwith the certificate of the legal keeper of the document, the certificate under the seal of Notary Public and certificate of the diplomatic agent of Pakistan in India. Having obtained the certified copy, the appellant had filed an application under Order XLI, Rule 27 of the Code of Civil Procedure in this Court for permission to produce the aforesaid documents in evidence. On the aforesaid circumstances, it was strenuously argued that document be admitted to be tendered as additional evidence within the term of Order XLI, Rule 27 of the Code of Civil Procedure.
22. ' Secondly, that the aforesaid mutation was attested as back as on 29-4-1927; that it was 30 years old document; that it completely negatived the claim of Abdul Qadir and Mangta that Mst.
23. Rahiman and Mst. Kariman were daughters of Imam Bakhsh and were so sisters of Saudagar.
24. According to the learned counsel, the contents of this mutation clearly established that Mst. Mangti was the descendent of Gandeela who was the real brother of Imam Bakhsh and so Mst. Mangti was entitled to inherit the 3/4th share in the legal estate of Ghulam Hussain and entire legal estate of Ghulam Bheek.
25. ' Thirdly, that the contents of this mutation contradicted the evidential value of Nawab Ali, D.W.12 and Abdul Ghafoor, D.W.13, Abdul Hakeem, D.W. 14 and Ghulam Haider D.W.16.
26. ' Fourthyly, that the contents of Mutation No, 1907 dated 20-12-1963/ Exh, DO1 clearly demonstrated that respondents Nos. 1 to 5 had abandoned their claim and admitted that they had no relationship with Ghulam Hussain and Ghulam Bheek. Reliance was placed on Allah Yar and others v. Raja and others (1989 SCMR 802).
27. ' Fifthly, that the evidence produced by defendants Nos. 1 to 5 was not admissible in view of conditions incorporated in section 50 of the Evidence Act. Reliance was placed on K.N. Guru Sawami v. Indo Carnatic Bank Ltd. And others (AIR 1940 Madras 873), Mirza Akbar v. King-Emperor (AIR 1940 PC 176), Mad Ajab and others v. Awal Badshah (1984 SCMR 440) and Bashir Ahmad v.
28. Ahmad ul Haq Siddiqui (1985 SCMR 1232).
29. ' On the contrary, Mr. Shehzad Shaukat, learned counsel appearing on behalf of defendants Nos.1 to 5, strenuously supported the impugned decisions on following grounds:-- ' Firstly, that the concurrent conclusions of two Courts below on issues Nos. 1, 2, 3, 8 and 9 were essentially of facts and, therefore, were not liable to interference under section 100 of the Code of Civil Procedure. Reliance was placed on Sh. Rashid Ahmad v. Settlement Commissioner, Lahore and others (1970 SCMR 280) and Jehangir Rustam Kaklia v. State Bank of Pakistan (1992 SCMR 1296).
30. ' Secondly, that the oral evidence produced by defendants Nos.1 to 5 fully satisfied the requirements of conduct evidence as laid down in section 50 of the Evidence Act/Article 64 of the Qanun-e-Shahadat, 1984 and was correctly believed by the Court. Reference was made to Anwar and others v. Sher Bahadar and others (1990 CLC 274).
31. ' Thirdly, that the admission made by Abdul Qadir embodied in Mutation No, 1907 dated 31-3-1963 was false, surreptitiously entered in the mutation with an objection to deprive Abdul Qadir from his share in the inheritance. According to the learned counsel even this admission was not put to Abdul Qadir under section 145 of the Evidence Act/Article 140 of the Qanun-e-Shahadat, 1984 and so it could not be read into evidence in view of rule laid own in Sikandar Hayat and 4 others v.
32. Master Fazal Karim (PLD 1971 SC 730) and Bhag Bhari v. Akbar Khan and others (1987 CLC 1543).
33. ' Fourthly, that the certified copy of Mutation No, 369, sought to be tendered as additional evidence in this Court, was not relevant in view of section 78(6) of the Evidence Act. According to the learned counsel, even this certified copy did not bear the certificate as required by the above section.
34. Reliance was placed on Sanawal Das v. Jagio Mal and others (AIR 1924 Lah. 68), Murli Das v. Achut Das (AIR 1924 Lah. 493), M/s. Bangal Friends & Co., Dhaka v. M/s. Gour Benode Saha & Co., Calcutta and another (PLD 1969 SC 477) and Asad Ali and others v. Settlement and Claims Commissioner, Karachi (PLD 1973 Note 65 at. p.88 ' Lastly, that the entries of mutation were not sufficient in quality and quantity to establish that Mst.
35. Kariman and Mst. Rahiman were not the sisters of Sodagar, the father of the right-holders.
36. According to the learned counsel in Rajputs of Karnal District there was custom of exclusion of sisters from the inheritance when the male members of family was present and so in the pedigree the names of sisters were not mentioned. On this premises, it was submitted that the mutation was not efficacious to contradict the evidential value of witnesses produced by respondents Nos. 1 to 5.
6. Mr. Muhammad Younas Khokhar, learned counsel appearing on behalf of Noori, supported the impugned decisions. Mr. S.M. Zamir Zaidi, Advocate, appearing on behalf of respondents Nos. 7 to 10, however, feebly argued the case and did not seriously contest the findings of the two Courts below on issues Nos. 1, 2, 3, 8 and 9.
7. Before I proceed to examine the crucial question, I find it necessary to reiterate four well-settled and well-entrenched propositions of law having a decisive bearing upon the resolution of the aforestated question. Firstly; that Order XLI, rule 26, C.P.C. Deals with the power of Appellate Court to admit additional evidence. This enacts that the parties to appeal shall not be entitled to produce additional evidence/oral or documentary in appellate Court. This is subject to conditions, if the Court from whose decree an appeal is preferred has refused to admit evidence which ought to have been admitted, or that appellate Court requires any document to be produced in evidence or witnesses to be examined to enable it to pronounce a judgment or for any other substantial cause.
37. The Privy Council had reiterated on number of occasions that the parties to appeal cannot be permitted to patch up or fill in the lacuna in their evidence by way of adducing additional evidence.
38. See Kessowji Issur v. GIP Ry. Co. (31 Born. 381), Parsotim Thakur v. Lal Mohar Thakur (AIR 1931 PC 143) and Narasima Murti v. Hayat Khan (1940 Mad. 911). The last circumstance has been rendered otiose by Supreme Court in Zar Wali Shah v. Yousaf Ali Shah (1992 SCMR 1778). It was held therein: "It is not necessary to admit any additional evidence in this Court. It appears that the trial Court could have collected more evidence but failed to do so. Even if one of the other party had failed to produce all the material documents and/or failed to request for proper examination of the disputed document/signatures, the Court had ample power to do the needful so as to advance justice rather than injustice. The concept of bar against filing the gaps is no more available, in the present Pakistan jurisprudence and the law including the precedent law on Islamic principles; which are being made applicable progressively to the proceedings before the Courts and other forums which are required to record/admit evidence. See Mian Aziz A Sheikh v. The Commissioner of Income Tax (PLD 1989 SC 613)."
39. ' Secondly, Article 89 of Qanun-e-Shahadat, provides the mode of proving foreign document.
40. Clause (5) of the said Article says that a foreign document may be proved by the original says or by a certified copy which must be B certified by the legal keeper of the document, the certificate of a Notary Public and Pakistan Consul's Diplomatic Agent in that Country. Article 96 of Qanun-e- Shahadat, states that there shall be a presumption of genuineness and accuracy to a certified copy of foreign judicial record, if they are certified in the manner laid down in this article. Thirdly; that the entries of mutation which are not incorporated in Jamabandi do not carry presumption of truth and are designed to keep the record for the collection of the land revenue. As these C entries are prepared by the officials in discharge of their official duties, these are, therefore, admissible under Article 49 of Qanun-e-Shahadat that these are entitled to weight, according to circumstances of each case and in accordance with the bulk of the evidence of the parties. The onus to prove these entries lies upon those who are beneficiaries of these entries. See Nagheshar Bakhsh Singh v. Mt. Ganesha (AIR 1920 PC 46); Gangabai v. Fakirgowadda (AIR 1930 PC 93) and Niaz Ali v. Muhammad Din (PLD 1993 Lah. 33). Fourthly, that Article 64 of Qanun-e-Shahadat, deals with conduct evidence. This prescribes that the person whose opinion is sought to be given in evidence, must be proved to have C special means of knowledge; that opinion alone is evidence that the opinion as expressed by the conduct is only evidence. The members of the family are presumed to have special means to depose in respect of relationship under this Article. See Anwar v. Sher Bahadur (1990 CLC 274).
41. ' Guided by the above principle, I herein proceed to examine the contentions of the parties. The first contention of the learned counsel of Mst. Mangti has a substantial force. The perusal of the certified copy of the Mutation No, 369 indicates that it was certified to be true copy by the legal keeper of the document. It further bears the certificate of the notary public and is also certified by the Pakistani Consul/Diplomatic Agent of Pakistan in India. This certified copy, therefore, satisfied all the necessary ingredients for its reception in evidence as ordained in Article 89(5) of the Qanun-e- Shahadat, 1984. The perusal of the record further shows that certified copy of this mutation, though improperly obtained, was tendered into evidence in the Court of first instance; that it was sealed on 18-1-1966; it was not admitted into evidence and the learned trial Judge refused to take it into consideration while dealing with the merits of claims of the parties. So, happened before the first Court of appeal. On these facts, I am of clear view that Mst. Mangti-appellant had made a fit case within the terms of Article 86 of the Qanun-e-Shahadat, 1984 read with Order XLI, Rule 27 of the Code of Civil Procedure for its reception. This document was ruled out of consideration on the calls of mandatory technicalities. Had it conformed to the requirement of Article 86 of the Qanun-e- Shahadat Order, 1984/section 78 of the Evidence Act, it would have been admitted into evidence.
42. This document was of foreign jurisdiction. Its correct copy was tendered in evidence. On these circumstances, I allow C.M. No, 4355-C/78 in R.S.A. 438/77 and admit Mutation No, 369 in evidence.
43. As far as its evidential effect is concerned, it will be examined later on. This disposes of the first and second contentions of the learned counsel for Mst. Mangti.
44. ' Coming to the merits of the case, it is necessary to note that defendants Nos. 1 to 5 relied upon the testimony of Nawab Ali, Abdul Ghafoor, Abdul Hakim, Bulanda and Ghulam Haider to prove their family ascent. All of these witnesses stated that Mst. Kariman and Mst. Rahiman were the sisters of Sodagar. Nawab Ali was Lambardar of Danarpur.He stated that Ghulam Hussain and Ghulam Bheek used to say that Mst. Kariman and Mst. Rahiman were their aunts. Conspicuous feature of this witness is that he was married to the real niece of Mst. Noori. Abdul Ghafoor, D.W.12, also stated that when Ghulam Hussain married Mst. Noori; that he was present in the marriage ceremony where Mst. Kariman and Mst. Rahiman were present; that Ghulam Hussain treated them as his aunts. To the similar effect is the testimony of Abdul Hakim, D.W.13 who was Lambardar/member of District Board and assessor of Denarpur. Bulanda, D.W.14 and Ghulam Haider, D.W. 16 made similar statements. The aforesaid witnesses were the residents of Denarpur where Ghulam Hussain and Ghulam Bheek were born, grew and Ghulam Hussain died in the said revenue estate. D.W.13 was the Lambardar of the revenue estate, member of the District Board, was assessor of Denarpur; was on visiting terms with the family of the right-holders. The aforementioned witnesses so was possessed of special means of knowledge regarding the relationship of Abdul Qadir and Mangta and so their testimony was clearly within the parameters of section 50 of the Evidence Act/Article 64 of the Qanun-e-Shahadat, 1984. These witnesses stood the gruelling test of cross-examination and nothing was extracted to demolish their evidential value. On a comprehensive assessment of their evidence the learned two Courts below, in my humble estimation, correctly came to the conclusion that Mst. Kariman and Mst. Rahiman were the real sisters of Sodagar. Against this evidence, Mst. Mangti banked upon the testimony of Noor Muhammad, D.W.1, Pir Bakhsh, D.W.2, Fateh Muhammad, D.W.3, Umra, D.W.4 and herself. She further relied upon geneological table given in Mutation No, 369. As far as the oral testimony is concerned, it is sufficient to note that these witnesses admitted that they were not the residents of Mauza Denarpur; that they were not on visiting terms with the family of the right-holders. The testimony of the above witnesses did not satisfactorily fulfil the requirement of section 50 of the Evidence Act/Article 64 of the Qanun-e- Shahadat, 1984. On this assessm ent I have no hesitation incoming to the conclusion that the learned two Courts below correctly found their testimony was incredible and did not exude confidence. The concurrent conclusion of facts reached by the two Courts below, on this aspect of the case, is eminently just. It neither suffers from any misreading of evidence nor any non-reading of evidence nor is in defiance of any rule of appraisement of evidence. Now remains the evidential value of Mutation No, 369. Undisputedly it had been incorporated in the Jamabandi. Furthermore, it appears from the record that neither Ghulam Hussain nor Ghulam Bheek had lodged claim on the basis of this mutation and had not secured any allotment on the land abandoned in Kalsani.
45. Furthermore, it is common ground between the parties that the Rajputs of Denarpur and Rajputs of Mauza Kalsani, Tehsil Thansir were governed by the Custom under which the females were excluded by the males on the doctrine of rule of G primogeniture. Therefore, the non-mention of the name of Mst. Kariman and Mst. Rahiman in Pedigree-table embodied in this mutation does not warrant inference that Mst. Kariman and Mst. Rahiman were not sisters of Sodagar and the testimony of Nawab Ali. Abdul Ghafoor, Abdul Hakim, Bulanda and Ghulam Haider was correct. This mutation, in no manner, corporates the claim of Mst. Mangti. The upshot of whatever has been stated above is that concurrent conclusions of the two Courts below on issues Nos. 1, 2, 3, 8 and do not suffer from any jurisdictional or legal error calling for interference by this Court under section 100 of C.P.C.
46. ' As a result of above discussion, these R.SAs. Are bound to fail. These are, accordingly, dismissed, leaving the parties to bear their own costs.