' The dispute relates to the state situated in village Kundanpur Tehsil and District Sialkot left by one Dewan whom the respondent Bashir Ahmad claims to be his father. Dewan died on 25th of April 1958, and his landed property was mutated in favour of his collateral Muhammad Din on the ground of Dewan having died issueless. Thereafter, respondent Bashir Ahmad filed a suit for possession of the land in question challenging the validity of the mutation on the ground that he being the son of Dewan was entitled to inherit the property in question. The suit was contested by the legal heirs of Muhammad Din who died during the pendency of the suit. It was contended by the appellants that Bashir Ahmad not being the son of Dewan was not entitled to inherit the property. According to them, his mother Mst. Said Bibi instituted a suit for dissolution of marriage against her husband Diwan on 1st of August 1942, inter alia on the ground that her husband was impotent right from the day of his marriage and as such he never co-habited with her. She further admitted that Bashir Ahmad was the son of another person named Jewan. The pleadings of the parties gave rise to two issues; as to whether the respondent was the son of Diwan and what was the effect of previous litigation on the present one? Issue No, 1 was found against the respondent while issue No, 2 was found against the appellants. As a consequence thereof the suit of the plaintiff-respondent was dismissed. The judgment and decree passed in this behalf by the learned trial Court, was however, set aside by the learned lower Appellate Court vide impugned judgment, mainly on the ground that the contents of Exhs. D. 1, D. 2 and D. 3, certified copies of the judgment of the suit filed by Mst. Said Bibi for dissolution of her marriage, of Goshwara of village Kundanpur and that of the statement of Mst. Said Bibi in the case referred to above respectively, could not be relied upon, the documents having not been duly proved. He held that since it was proved that Bashir Ahmad, respondent was born during the subsistence of marriage between Diwan and his wife Mst.
Said Bibi, therefore, under section 112 of the Evidence Act, presumption went in his favour and it was conclusive proof that he was legitimate son of Diwan. He further held that such proof had not been rebutted, satisfactorily by the appellants, therefore, he decreed the suit filed by the plaintiff- respondent. The defendants-appellants have now come up to the High Court and have challenged the validity of judgment and decree passed by the learned lower appellate Court.
2. The main question to be examined in this case is as to whether the contents or recitals in Exhs. D.
1 to D. 3, can be relied upon being admissions made by Mst. Said Bibi, mother of the respondent, against him. All these documents were tendered in his statement by D. W. 3, one of the appellants.
Exh. D. 1 certified copy of the judgment in the case of dissolution of marriage filed by Mst. Said Bibi against her husband, Diwan, was admitted in evidence without any objection. Exh. D. 2 was also exhibited without any objection. However, objection was raised at the time when certified copy of the statement made by Mst. Said Bibi in that case was presented for being admitted in evidence.
The learned trial Court repelled the objection on the ground that since the relevant file of the case with regard to dissolution of marriage had been destroyed, therefore, the said document was liable to be admitted. The above facts show that objection was raised only with regard to one document Exh. D. 3 while the other documents were exhibited and admitted in evidence without any objection.
It has been held in Umar-ud-Din v. Ghulam Muhammad and another (1) that even in a case where secondary evidence was admitted without any objection such objection cannot be allowed to be raised in second appeal. In that case statement of one Ahmad was not duly proved. The talarama in which said statement was said to be available had not been produced. Instead a register of the petition-writer in which an abstract of the contents of talaqnama existed was produced. This secondary evidence was admitted in evidence without any objection. The said admission as such was objected to in second appeal before the High Court. It was repelled on the ground that such objection should have been raised for the first time at the first possible opportunity and since it was only a question of formal proof, therefore, such objection could not be allowed to be raised later on.
The same view has been affirmed by their Lordships of the Supreme Court in Malik Din and another v. Muhammad Aslam (2) holding that objection regarding the defect, if any, in the method of proof of a document, cannot be raised at the appellate stage. Where a document has been admitted into evidence without any objection in the trial Court such objection cannot be allowed to be raised at the appellate stage. It has been further held that it is now well settled that an objection, as to the formality of proof, must be taken at the earliest stage and if it has not been taken then it cannot be allowed to be taken at the appellate stage. Similar view has been taken in Muhammad Habib and others v. Fazal Karim (3) that objection not taken in the courts below cannot be allowed to be taken at the appellate stage. In that case the objection that Money Suit No, 44 of 1956 being not with regard to the usufruct of the entire land having not been taken at the time of hearing in any of the Courts below, was not allowed to be taken thereafter at the appellate stage.
3. Respectfully following the principle of law as laid down in the authorities, referred to above it can be safely held that the documents Exhs D. 1 and D. 3 were duly proved, their admission to evidence having not been objected to.
(1) AIR 1935 Lah. 628 (2) PLD 1969 SC 136
(3) PLD,1967 Dacca 638
4. The next question which arises for consideration is as to whether the contents, recitals or admissions made in the said documents can be relied upon while deciding the present case. The learned District Judge has referred to certain authorities particularlry AIR 1935 Lah. 628 that where a particular document has not been duly proved its recitals cannot be relied upon. He has further held that Exh. D. 1, copy of the judgment in the case of dissolution of marriage sled by Mst. Said Bibi against her husband Diwan can only be relied upon to the extent that marriage between them was dissolved but the recitals or admissions contained therein cannot be relied upon. The document in question in that case contained the statement of one Mst. Janet admitting the illegitimacy of her son. It was contended that since the document had been exhibited without recording the statement of Mst. Janet who was author thereof, therefore, contents thereof could not relied upon and as such the document was inadmissible in evidence. Since the document had been proved on record, therefore it was held that the, admission of Mst. Janat as contained therein was also admissible as a relevant fact. However, it is not shown in the judgment as to why and in what manner the document was proved on the file. May be that the same being certified copy of the statement of Mst. Janat may have been admitted in evidence. As discussed above, no objection was raised with regard to the admissibility of Exhs. D. I and D.
2. It is, therefore, to be seen as to what extent they are helpful in deciding the point in question. It has been held in Malik Din and another v. Muhammad Aslam (1) that judgment, whether inter partes or not, are conclusive evidence for and against all persons whether parties, privies, or strangers of its own existence, date and legal effect, as distinguished from the accuracy of the decision rendered. It has been further held, that in other words, the law attributes unerring verity to the substantive as opposed to the judicial portions of the record. Where the judgment is inter partes, even recitals in such a judgment are admissible. However, a previous judgment is admissible also to prove a statement or admission or an acknowledgement made by a party, or the predecessor-in-interest of a party, in his pleadings in a previous litigation. In that case, order of the Collector, contained all the admissions as well as the grounds upon which Malik Din appellant before the Supreme Court based his claim and had not thereby challenged the factum of Mutation. It was held by the Supreme Court that for that purpose the recital was certainly admissible at any rate as secondary evidence of the substance of his pleadings i,e, his memorandum of appeal.
' In the present case there is no doubt that the parties to the present litigation were not patties in the previous litigation as evidenced by Exh D.
1. However, in the light of the Supreme Court's judgment admission made by Mst Said Bibi mother of the plaintiff-respondent that Bashir Ahmed plaintiff was not the son of Diwan but of one Jiwan is binding upon her successors-in-interest. The grounds or substance of pleadings as recited in the judgment Exh. D. I as held by the Supreme Court can also be relied upon. I have seen the judgment of the civil Court as contained in Exh. D. I. It gives in substance the case of Mst. Said Bibi on the basis whereof she sought dissolution of marriage. One of the grounds she gave for that purpose was impotency of her husband Diwan right from the day of his marriage with her. It was alleged by her that he had never any access to her meaning thereby that he never co-habited with her. Same view was taken in Sahed All and others v. Prakash Chandra Roy Talukdar and
(1) PLD 190 SC 136 others (1) holding that documents though not inter panes are admissible in evidence as evidencing transactions by which a right or custom was created, claimed, modified, recognised, asserted or denied. Reliance in this respect has been placed by the learned Judge in that case upm Alauddin Mia and another v. Abdul Latif and others (2). The relevant portion of the said judgment may be reproduced below for benefit. It may be noticed that author of the judgment in 9 D L R is the same learned Judge who is the author of the judgment in PLD 1969 SC i,e, former Chief Justice of Pakistan Mr. Justice Hamoodur Rahman: "It appears to be rather late in the day to re-open the controversy which has ranged in the decisions since the case of Gujju Lal. For the question is now well-settled by the highest authority, and the controversy has now been definitely set at rest by the decision of their Lordships of the Privy Council in the case of Dinomoni Chowdhurani v. Broio Mohini Chowdhuranl, where their Lordships specifically held that judgments not inter pastes were admissible in evidence for and against every one under section 13 of the Evidence Act. They are thus admissible either as evidencing transactions by which a right or a custom in question is created, claimed or modified, recognised, in which the right or custom in question was claimed or modified, recognised, asserted or denied and it appears, that their Lordships of the Privy Council have since consistently admitted such judgments in evidence."
5. The above discussion would show that the admission made by Mat. Said Bibi in her pleadings as incorporated in the judgment of the civil Court that her husband Diwan was impotent right from the day of his marriage and had never any access to her can be availed of while deciding the present case. The learned District Judge had not relied upon Exh. , judgment of the civil Court for the reason that admission as made by Mst. Said Bibi cannot be relied upon. As held by the Supreme Court for limited purpose of proving or acknowledgment or substance of pleadings, judgment as such can be relied upon. The view, therefore, taken by the District Judge is erroneous and not sustainable in law. Further judgment in the dissolution case is a judgment in rem and not in personam. Since that judgment decided the status of Mst. Said Bibi as wife or otherwise therefore, it can be taken into account by other parties.
6. Since Exh. D. 1 clearly proves the admission of Mst. Said Bibi that her husband, Diwan, was impotent from the day of his marriage with her and had never any access to her, therefore, question of Bashir Ahmad, plaintiff-respondent being his son does not arise. In this view of the matter the plaintiff-respondent has not been able to prove issue No, 1 and presumption to be drawn under section 112 of the Evidence Act has been satisfactorily rebutted by the appellants. It may be mentioned that decree on the ground advanced by Mat. Said Bibi was granted for dissolution of her marriage with Diwan. It is interesting to notice that she never appeared as witness in the present case, for her son Bashir Ahmad. Her statement was the best evidence to be produced by the plaintiff-respondent. Since the c onus lay on him to prove issue No, 1, therefore, it was for him to examen his mother Mst. Said Bibi as his witness. In the absence thereof, presumption goes against him. {1) PLD 1968 Dacca 689 (2) 9 DI, R 357
7. As a result of the above discussion, the judgment and decree passed by the learned District Judge Sialkot, is hereby set aside and that of the learned trial Court restored. The appeal is accepted without any order as to costs.