' MUHAMMAD BASHIR JEHANGIRI, J.---This appeal through the leave of the Court is directed against the dismissal by the Lahore High Court, Lahore, the appellants' Civil Revision No,52-D of 1982.
2. Precisely the relevant facts narrated in the leave granting order are that the dispute between the parties arose out of the inheritance to the estate of Chao Khan, a displaced person who died in January, 1962, leaving behind a daughter Mst. Subhani and a widow Mst. Moj Bibi, respondents Nos.1 and 2 herein. On 18-4-1962, a mutation regarding the estate of the deceased was sanctioned giving 7/8 share therein to Mst. Subhani and 1/8 share to Mst. Moj Bibi. Appellants made a claim before the higher authorities that they too were the legal heirs of the deceased being his collaterals/distant kincdred which claim was finally accepted and vide Mutation No,420, attested on 27-3-1964, appellants were allowed 3/8 share in the estate of Chao Khan.
3. Feeling aggrieved, the two respondents instituted a suit for declaration that they were the only heirs of the deceased Chao Khan; defendants/appellants were not at all related to him and were, thus, not entitled to inherit his property and, therefore, Mutation No,420 allowing 3/8 share to them as collaterals of Chao Khan deceased was void and ineffective qua their rights. The appellants traversed the averments of the respondents by filing a written statement reiterating their claim which they had set up before the Rehabilitation Authorities.
4. The learned trial Judge after framing issues and recording evidence adduced by the parties dismissed the suit of the respondent upholding the claim of the defendants/appellants vide judgment, dated 12-12-1978.
5. Against the above order, an appeal was taken to the Court of learned Additional District Judge which was accepted and the suit of the respondents was decreed holding that the evidence led by the appellants did not connect them with Chao Khan.
6. The learned Judge in Chambers of the High Court seized of the civil revision giving rise to the titled appeal, observed that none of the witnesses called by the parties had any direct knowledge of the true relationship of the appellants with Chao Khan. In the context of pedigree-table received by the Central Record Room from India, it was observed to be the best evidence on the point but unfortunately for the appellants that was not a complete pedigree-table. It was noticed that this pedigree-table was indicative of the names of some of the appellants or their ancestors. But it did not connect them with Sanwat, their so-called ancestors. The provisions of Article 64 of Qanun-e- Shahadat, 1984 were referred to by the learned Single Judge to hold that when the Court has to form an opinion as to relationship of one with another, the opinion, expressed by the conduct as to the existence of such relationship, of any person, who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact. Reference was made to law laid down by this Court in Shah Nawaz and another v. Nawab Khan (PLD 1976 SC 767) that "the opinion expressed by conduct as to the existence of a particular relationship and not merely a statement as to that relationship". In other words, according to the learned Single Judge, under Article 64
(ibid) when the Court to form an opinion as to the relationship of one person to another, it is the opinion expressed 'by conduct' as to the existence of that relationship of any person whether member of family or otherwise who has special means of knowledge on the subject, is a relevant fact". Under this principle, it was held that there was no evidence of conduct; nor was there any evidence that D.Ws. Had any special means of knowledge on the subject of relationship between Chao Khan and the appellants. For these reasons, the revision petition was dismissed.
7. The appellants, still dissatisfied, filed a revision petition in the High Court which too, was dismissed on 16-3-1963. Against the dismissal of their revision petition, the appellants filed C.P.L.A.
No,595-L of 1993.
8. Leave to appeal was granted to consider whether the appellants were proved to be the collaterals of the deceased Choa Khan in view of the pedigree-table available at page 86 of the Paper Book.
9. Ch. Azim-ud-Din, learned Advocate Supreme Court, in support of this appeal contended that the pedigree-table at page 86 of the Paper Book fully corrected the appellants with Chao Khan deceased predecessor-in-interest of the respondents as collaterals. The reliance was also placed on the ocular evidence of Sameen (D.W.1), Muhammad Khan Lambardar (D.W.2), Sher Muhammad (D.W.3) and Sufiad Khan one of the appellants (D.W.4). It, was next contended that it was one of typical cases where question of succession to property left behind in India would fall to be decided in Pakistan, for the purpose of conclusion of the provisions of settlement laws, by grants of land in proportion to the right lost. The argument appears to be that expression "right-holder" has been used in the Act in a special sense, that is, as referring to the name appearing in the revenue or other record in India at the time of the Partition. Reference was made to paragraph 46 of the Rehabilitation and Resettlement Scheme, which lays down in clear terms that cases of inheritance should be decided according to Sharia Law. In this context, it was urged that reference has been made in several places in the scheme to "deceased refugee owners". In support of this contention reliance was placed on the precedent of (i) Mst. Zainab v. Mst. Raji and others (PLD 1960 SC (Pak.)
299), (ii) Mst. Basso v. The Rehabilitation Commissioner (Land), West Pakistan, Lahore and another (PLD 1963 SC 347) and (ii) Muhammad Hassan v. Syed Mumtaz Hussain (PLD 1965 (W.P.) Lahore 35).
10. Conversely Raja Dilshad Khan, learned Advocate Supreme Court, representing the respondents pointed out that the jurisdiction of the Civil Court was only barred up to 24-12-1964 and not later on.
Reference in this context was made to provisions of section 16 of the Act. It was further elaborated that in the instant case the land in dispute was allotted and confirmed on 27-3-1964 whereas the suit was filed on 5-1-1965 which falls after the target date 24-12-1964 and, therefore, the suit was not barred.
11. The case-law relied upon by the learned counsel for the appellant in support of the proposition that the Civil Court was devoid of jurisdiction in the matter of inheritance of the persons covered by the provisions of the Act of 1958 pertained to the period prior to 24-12-1964 and cannot, therefore, be invoked in support of the proposition raised by the learned counsel for the appellants. We are, therefore, convinced that the Civil Court was seized of the jurisdiction and the bar sought to be pressed into service is not applicable to the case in hand. Similarly the First Appellate Court had rightly appraised the evidence and had given a finding of fact that the ocular evidence as well as the pedigree-table relied upon by the appellants had not sufficiently connected the appellants with the predecessor-in-interest of Chao Khan. The ocular evidence was rightly assessed in view of the provisions of Article 64 of the Qanun-e-Shahadat, 1984 that there was no evidence of conduct; nor, was there any evidence that the D. Ws. Had the special means of knowledge on the subject of relationship between Chao Khan and the appellants.
12. It is, thus, clear that the first Appellate Court and the leaned Judge in the High Court had appreciated the controversy both factual and legal in its true perspective and their decisions appear to be unexceptionable on any ground which has been pressed into service before us, therefore, the order of the High Court refusing to interfere in the findings of record by the learned First Appellate Court must be upheld.
12-A. We would, therefore, dismiss this appeal but having regard to all the circumstances of the case would leave the parties to bear their own costs.