' This is a revision petition against the judgment and decree, dated 22-10-1995 passed by the 'learned Additional District Judge, Mailsi whereby he upheld the judgment and decree, dated 29- 10-1989 passed by learned Civil Judge Mailsi in Civil Suit No,397.
2. Briefly stated, the background of the case is that the petitioner sought a declaration to the effect that he is entitled to 102949/1876080 share out of 46 Kanals, 16 Marlas of land as husband of Khan Bibi daughter of Bakhshan Khan and the attestation of Mutation No, 214, dated 22-2-1982 and in consequence thereof later entries and mutation regarding inheritance of Mst. Saleh Bibi were wrong, illegal, against law, collusive and ex parte and liable to be cancelled. He also sought permanent injunction restraining the respondents from interfering or transferring the property in any way. He also sought possession of the disputed land in the same suit.
3. Rajab Khan son of Bakhshan Khan contested the suit while respondents Nos.2 and 3 admitted the suit by separate written statement.
4. From the pleadings of the parties, the learned Civil Judge framed the following issues:--
(1) Whether the suit is not maintainable in its present form? O.P.D.
(2) Whether the plaintiff has no cause of action? O. P D
(3) Whether the plaintiff is estopped to bring this suit by his own words and conduct? O.P.D.
(4) Whether suit is not based on bona fides of the plaintiff? O.P.D.
(5) Whether this Court has no jurisdiction? O.P.D.
(6) Whether suit is barred by time? O.P.D.
(7) Whether plaintiff is husband of late Mst. Khan Bibi? O.P.P.
(8) Whether Mutation No,. 214, dated 22-2-1982 and order, dated 25-7-1984 of A.C., Mailsi with regard to inheritance of Saleh Bibi is against law and fact? O.P.P.
(9) Relief.
5. Parties led their respective evidence and the learned Civil Judge after hearing the arguments passed the impugned judgment against the plaintiff. He preferred an appeal but the same was dismissed.
6. Mirza Muhammad Saleem Baig Advocate for the petitioner and.Ch. Ghulamud-Din Aslam Advocate for the respondent have been heard at length in this revision petition. The learned counsel for the petitioner has submitted that both the Courts below have not considered the statement of Mst. Saleh Bibi, real 'sister of deceased Mst. Khan Bibi, made before the Revenue Officer in the proceedings relating to mutation of inheritance on the point that she had stated there that the petitioner was married to Mst. Khan Bibi and consequently, on her death was entitled to inherit her property.
7. On the other hand, the learned counsel for the respondent has submitted that the factum of Nikah could be proved by producing the witnesses of the Nikah, the Wakil of the Nikah or in the absence of non-availability of this evidence, the persons who has attended the Nikah or by any document such as the Nikahnama, the I.D card, the Pedegreetable, any proceeding where such issue would have arisen and proved by cogent evidence.
8. I have given due consideration to the valuable arguments on both sides and gone through the evidence on record with their able assistance and considered the seasons given by both the Courts below.
9. Admittedly Issues Nos.1 to 6 were not pressed by the defendant and only Issues Nos.7 and 8 were to be decided, the onus of both of which was on the plaintiff.
10. The plaintiff examined Faiz Bakhsh (P.W.1), Ahmad Nawaz Khan (P.W.2) and himself appeared as P.W.3 and tendered in evidence Jamabandi for the year 1981-82 Exh.P.1 Khasra Girdawri Exh.P.2, order of A.0 Exh.P.3, statement of Saleh Bibi Exh.P.4 and copy of Mutation Exh.P.5. On the other hand, defendant Rajab Khan himself appeared as D.W.1 who tendered in evidence order of Collector Exh.D.1 copy of register Haqdaran Zamin for the year 1979-80 Exh.D.2, copy of register Haqdaran Zamin for the year 1981-82 Exh.D.3, copy of register Haqdaran Zamin for the year 1983-84 Exh.D.4 and copy of Khasra Girdawri Exh.D.5.
11. Ahmad Yar P.W.3 who is petitioner in this revision petition stated as under: "Khan Bibi was my wife. When I was married with Khan Bibi, my age was 20- years and the age of Khan Bibi was 19 years. The name of the father of Khan Bibi was Bakhsh Khan who was alive and had died three years after the Nikah. I and Khan Bibi were wedded according to Shariah. When Bakhsh Khan died, agriculture land was in his name and Khan Bibi got her share of inheritance. The witnesses of my Nikah with Khan Bibi were Ashiq Khan and Sanjar Khan. The Wakil of Nikah was Ghulam Hussain. At that time Faiz Bakhsh and Ahmad Nawaz were also present. Ashiq Khan, Sanjar Khan and Ghulam Hussain have died. The Nikah was solemnized by Moulvi Abdul Rehman. Molvi Abdul Rehman has also died. I have been making attempts for restitution of conjugal rights of Khan Bibi through Panchayat but the Rukhsati of Khan Bibi did not take place. He did not do Rukhsati of Khan Bibi due to agriculture land. Saleh Bibi is sister of Khan Bibi. She had given statement in the Court of A.C. Khan Bibi died 6/7 years back. The land of Khan Bibi was transferred in my favour in village Jandey Wala. I have preferred appeals before the A.0 who had directed that I should file a suit in the civil Court. Khan Bibi died issueless. Again said that Rukhsati had not taken place."
' In the cross-examination, he stated as"Nawaz is my brother. The wife of Nawaz is the daughter of Saleh Bibi. The defendant preferred an appeal against mutation of the land of village Jandeywala on which the case was remanded for again deciding it after hearing both the parties and after remand, the Naib Tehsildar decided that the defendant is in possession of the land in dispute and it is he who receives the produce. My Nikah with Khan Bibi took place 60/65 years back at Chah Dhalwala in the month of Chait. Rukhsati had not taken place. I had not filed a suit for restitution of conjugal rights. At the time of Nikah, Khan Bibi was sitting in a room. To take consent of Khan Bibi, Sanjar Khan, Ashiq Khan and Ghulam Hussain had gone there while she was sitting in a room at a distance of 15 to 20 minutes while we were sitting outside the Haveli. It was incorrect to suggest that I was not married to Khan Bibi or I was giving false evidence."
' The statement of P.W.1 Faiz Bakhsh is that "I knew both the parties. Nikah of Ahmad Yar with Khan Bibi was performed two years before the establishment of Pakistan. Khan Bibi was daughter of Bakhsh Khan who remained alive for two years after Nikah and then died. Khan Bibi got share from his inheritance. Rajab Khan is the real brother of Khan Bibi. Rajab did not do Rukhsati of Khan Bibi after death of his father as he was demanding that Khan Bibi should transfer the land in his name. I was present in the Nikah. Khan Bibi died 7 years back. Khan Bibi was my Khala. Ahmad Yar got no share from the inheritance of Khan Bibi." In the cross examination, he stated:-- "I have litigation in respect of land with Rajab Khan. Khan Bibi was 60/62 years old at the time of her death. She was 18/19 years old at the time of her Nikah. At that time Ahmad Yar was 20/21 years old.
Since Nikah till to-date Rukhsati had not taken place. Nikahkhawan was Molvi Abdul Rehman resident of Chak Kikarwala. Nikah was not registered. Haq Mehar was fixed as Rs,32. Nikah took place at,the house of Rajab Khan. Witnesses of Nikah were Ashiq Khan and Sumbal Khan. Haji Ghulam Hussain was Wakil. Ashiq Khan, Ghulam Hussain and Sanjal Khan all the three have died.
There were 20/25 persons there. It was month of Chait and season was as, now-a-days.
Chhoharas were distributed after Nikah by the barbar. Khan Bibi was sitting in a separate room.
Haji Ghulam Hussain had gone to ask for her consent alongwith Sanjal Khan and Sikandar. Ahmad Yar did not file a suit for restitution of conjugal rights. The name of other sister of Khan Bibi is Aman Bibi. At the time of mutation of inheritance of Khan Bibi, I was not present and at the time of mutation of inheritance of Bakhsh Khan I was present. Offer and acceptance was made by Khan Bibi herself. It is incorrect that I am deposing falsely or that no Nikah of Khan Bibi was performed with Ahmad Yar."
(12) Ahmad Nawaz Khan P.W.2 deposed:-- "I had given the permission to Ahmad Yar and Khan Bibi. The Nikah of Khan Bibi took place 4 years before. I was present in the Nikah.' After 2 years of her Nikah, her father died. Khan Bibi died 5/6 years back. Rukhsati had not taken place. Only Panchayats were held. Rajab Khan wants to get the land of his sister in his name."
' In cross-examination, he deposed:-- "Ahmad Yar is my elder brother. Molvi Abdul Rehman died after 2 to 4 years of establishment of Pakistan. Sanjar Khan and Ashiq Khan were witnesses from the side of Khan Bibi. Khan Muhammad and Sumbal were witnesses of Ahmad Yar. The Wakil of Ahmad Yar was Ghulam Hussain. Age of Khan Bibi at the time of Nikah was 18 years. She was present there. At the time of her death, her age was 60/61 years. After the Nikah, Chhoharas were distributed by Karam Hussain barbar. Haq Mehar was not fixed at the time of Nikah. Month was of Chait. It is incorrect that I was giving false evidence being brother."
13. D.W.1 Rajab Khan deposed:-- "Khan Bibi deceased was my sister. At the time of her death, she was 45 years old. She was never married with the plaintiff Ahmad Yar. Deceased Khan Bibi died virgin. She owned land in village Kharala and Jandeywala. The mutation of inheritance of this land was sanctioned. According to it, I, my sister Saleh Bibi, maternal nieces and Aman Mai got the share. Since the death of Khan Bibi, I am in possession of the land in dispute and I receive the produce. My sister Saleh Bibi opposes me as the land owned by her .Is in my possession. The younger daughter of Saleh Bibi is married to the younger brother of the plaintiff. The suit of the plaintiff is false."
' In the cross examination, he deposed: "Saleh Bibi has died. Faiz Bakhsh is her son. He is my real maternal nephew. It is correct that appeal was considered in respect of the land in dispute by the A.C. It is incorrect that Saleh Bibi, had given a statement that Khan Bibi, her sister, was married with the plaintiff. The plaintiff is my maternal nephew. He is son of my cousin. It is correct that mutation of land in Jandeywala was attested in favour of the plaintiff. It is incorrect that Nikah of Khan Bibi was performed with the plaintiff and Rukhsati had taken place. It is incorrect that I had not conducted Rukhsati of Khan Bibi as I wanted that land of Khan Bibi be transferred in my name and then I will conduct Rukhsati. In the land of Saleh Bibi, there is share of brother and sister-in-law of plaintiff. There was a dispute on it. I have been giving share produce to my sisters. I had been giving share to Saleh Bibi and Aman Mai. I did not demand any receipt. There had been suits against me for the recovery of produce and also criminal cases. My father died 35/40 years ago. It is incorrect that my father had married Khan Bibi with the plaintiff. I am alone and have no other brother. The age of my maternal nephew is 30/40 years. I cannot say that age of Faiz Baldish would be 60 years. Khan Bibi died 8/9 years back. It is incorrect that 30/40 years back, Nikah was not registered. Ashiq Khan and Sanjal Khan are our Biradari men. I know Ahmad Nawaz Khan brother of the plaintiff. His age might be 40/50 years.
There had been Molvi Abdul Rehman in our village. It is incorrect that the Nikah of the plaintiff took place with Khan Bibi. It is incorrect that Rukhsati was not conducted as the land had been transferred in her name. The mutation of inheritance was attested 5/6 years back. It is incorrect that the plaintiff is the husband of Khan Bibi. It is also incorrect that plaintiff is entitled to inheritance of Khan Bibi."
14. This is the total oral evidence on the record. Not a single witness of the petitioner is independent and all the witnesses are relatives. No doubt, in matrimonial cases, the relatives and close relations' evidence is admissible because in such occasions as the marriage, they are invited and are present. But the difficulty in this case is that P.W.2 states that the marriage took place four years back. His deposition was recorded on 14-3-1988 and in this manner, the date of marriage comes as 14-3-1984 while according to P.W.3 the marriage took place 60 to 65 years back. His deposition was recorded on 5-6-1989 and in this manner the date of marriage comes as 5-6-1929 or 5-6-1924.
P.W.1 states that the marriage took place two years before the establishment of Pakistan according to which the date of marriage comes to 14-8-1945. The marriage was to take place on one date. In the present case, the difference is ranging between 1924, 1929, 1945 and 1984. It means that all the witnesses are false witnesses and they were not present in the alleged marriage. Even the plaint shows that Nikah was performed in the year 1950 or 1951. As mentioned in para 2 of the plaint, it was performed 35/36 years prior to the institution of the suit which was instituted in the year 1985. Still further, P.W.1 says that Haq Mehar was Rs,32 while P.W.2 states that Haq Mehar was not at all fixed.
Still further, not a single person out of 20 or 25 individuals who are stated to have attended the ceremony, have come to support the plaintiff. Furthermore, Rukhsati is alleged to have not taken place for 40 years. Not a single person of the Panchayat had been produced to show the efforts of the plaintiff. There was also no suit for restitution of conjugal rights from the plaintiff's side. The learned Civil Judge has very rightly concluded that the Nikah was not proved. There remains the evidence of the real sister of the deceased Khan Bibi, namely, Saleh Bibi who had appeared before the revenue authority and deposed that her sister Khan Bibi was married with Ahmad Yar. She has since died and her statement recorded by the A.C. Mailsi on 20-1-1983 is also of no help as she was not cross-examined and even otherwise, the decision based on it stood cancelled on the ,revenue side against which no appeal was filed.
15. There are also concurrent findings of both the Courts below and I see no reason to interfere with the same. As such, the revision petition is dismissed.