' This is defendant's revision petition and is directed against concurrent judgments and decrees of the learned two Courts whereby the declaratory suit filed by the Muhammad Nazir, respondent No,1 was decreed.
2. The facts of the case as given by the learned counsel for the petitioner and gathered from the record are that on 28-10-1967, Muhammad Rafiq, respondent No,2, sold land measuring 9 Marlas and 219 sq. Ft, through a registered sale-deed in favour of the petitioner, Mst. Aziz Begum.
Respondent No,1 claiming to be the real brother of Muhammad Bashir, filed the present suit seeking cancellation of the aforesaid sale-deed on the ground that Muhammad Bashir had died on 16-8- 1965 without leaving any wife or children. It was further averred that Muhammad Rafiq was not the son of Muhammad Bashir. He was not entitled to inherit the property in dispute and, therefore, the sale made by him in favour of the petitioner was illegal and inoperative qua his rights.
3. Apart from Mst. Aziz Begum and Muhammad Rafiq, the vendor, respondents Nos.3 to 11 were also arrayed as defendants in the said suit as successors-in-interest of Muhammad Bashir.
4. The suit was contested on which necessary issues were framed and it was tried. The learned Trial Court reached the conclusion that Muhammad Rafiq was not the son of Muhammad Bashir and, therefore, he could not neither inherits the disputed property nor could alienate it. Accordingly, the suit filed by respondent No,1 was decreed on 12-11-1976.
5. An Appeal was taken before the learned District Court by Mst. Aziz Begum. It was allowed on 1-3- 1978 by the learned Additional District Judge and the case was remanded to the learned Trial Court with a direction that Mst. Aziz Begum be allowed an opportunity to lead her evidence. Pursuant to the aforesaid direction, Mst. Aziz Begum was allowed opportunity to produce evidence. However, again the suit of respondent No,1 was decreed on 29-1-1980. An appeal was taken before the learned District Court which was dismissed vide judgment and decree dated 12-12-1981. These judgments and decrees are the subject-matter of this appeal.
6. The learned counsel for the petitioner submits that the learned Trial Court did not note the documentary evidence while the learned First Appellate Court noted it, but it was not discussed. He further contended that evidence produced by the petitioner regarding relationship of Muhammad Rafiq with Muhammad Bashir coming-forth from his mother Mst. Hajran Bibi (D.W.4) and Muhammad Hussain (D.W.5) real brother of the deceased was arbitrarily rejected. His other grievance was that the documents produced on behalf of the petitioner particularly the birth certificate of Muhammad Rafiq (D.W.3/1) copy from police diary (D.W. 3/3) and sale-deed Exh.D.W.1/1, were ignored from consideration.
7. On the other hand the learned counsel for respondent No,1 has contended that question of relationship is essentially a question of fact which stands concluded by a concurrent finding of fact and, therefore, no interference is called for. He next contended that succession certificate in respect of the assets of the deceased was issued in favour of respondent No,1 (Exh. P.2). He further submitted that the petitioner had filed a suit claiming a declaration that he was son of Muhammad Bshir. It was allowed to be dismissed for non-prosecution under Rule 8 of Order IX of the Code of Civil Procedure on 4-3-1972 (Exh. P-1). Hi the said suit Fazal Karim had appeared as P.W.3 and claimed that he was married to Mst. Hajran Bibi and from the wedlock a son, Muhammad Rafiq, was born. This statement was tendered in evidence as Exh. P.3. He also relied on Exhs. P.4 and P.5, showing that Muhamamd Rafiq was proceeded against under section 107/151 of the Code of Criminal Procedure and was discharged. These are extracts from a register showing the parentage of Muhammad Rafiq as Fazal Karim. He also relied on the statements of Mst. Ghulam Fatima and Mst. Nawab Bibi (P.W.1 & P.W.2), real sisters of Bashir Ahmad deceased, who had deposed that Muhammad Rafiq was not the son of Muhammad Bashir. He was the son of Fazal Karim.
8. I have considered the submissions made by the learned counsel for the parties. The learned two Courts have not taken into consideration the documentary evidence produced by the parties. I have, however, surveyed the entire evidence and proceed to determine the controversy.
9. Respondent No,1 plaintiff examined P.W.1 to P.W.7 in support of his case and produced documents Exh. P1 to Exh.P6.
10. P.W.1 and P.W.2 Mst. Ghulam Fatima and Mst. Nawab Bibi are real sisters of Muhammad Bashir deceased. According to them Bashir was married to Mst. Nawab Bibi first and from whom he had four children. All of them, however, died and thereafter even Mst. Nawab Bibi died. Thereafter, he married Mst. Hajran Bibi, who lived in his house for about 5 months, was then divorced by the deceased and that no child was born from the second marriage of Muhamamd Bashir. Mst. Hajran then married Fazal Karim and Muhammad Rafiq was born from the second marriage of Mst. Hajran with Fazal Karim P.W.3 Nasrullah has been a tenant under the deceased according to him Bashir had informed him that he had no issue from the second marriage. P.W.4 is Muhammad Nazir, the plaintiff, who has supported his case. He also testified that Bashir had divorced Mst. Hajran and she had then remained Fazal Karim. P.W. 5 Mehr Din, a neighbourer, deposed that he was informed by Bashir that his heirs were his brothers and sisters and that Muhammad Rafiq was "pichlag" (off spring from earlier marriage of Mst. Hajran). P.W.6, Kalim Ullah claimed that Bashir had informed him that Muhammad Rafiq was pichlag Mehfooz-ul-Haq, Advocate, P.W.7 affirmed having filed a suit on behalf of Muhammad Rafiq.
11. The judgment in the declaratory suit filed by Rafiq dated 4-3-1982 was produced on the record as Exh. P1. The decision of the application for the grant of succession certificate dated 26-7-1966 was produced as Exh.P2 Copy of the statement of Fazal Karim in the suit of Muhammad Rafiq was produced as Exh.P3, Exh. P4 and P5 were extracts from the register of the criminal cases and Exh.P6 was the disputed sale-deed. According to Exh.P3 (the statement of Fazal Karim) Muhammad Rafiq was his son while Exh.P4, show that Muhammad Rafiq's parentage recorded therein was Fazal Karim.
12. The petitioner produced D.W.1, to D.W.6, and also tendered in evidence documents Exhs.D.W.3/1 to D.W.3/5 and D.W.1/1, Muhammad Bashir D.W. 1 deposed that he had purchased a sharer in the house in Bhati Gate, Lahore from Muhammad Hussain and Muhammad Rafiq. In this sale-deed the parentage of Muhammad Rafiq is recorded as Muhammad Bashir, D.W.2, Muhammad Sadiq lives nearby and according to him Muhammad Rafiq was the son of Muhammad Bashir. Mst. Aziz Begum, the petitioner appeared as D.W.3. She did not know Rafiq personally. D.W. 4, Mst. Hajran, the mother of Rafiq appeared and testified that Muhammad Bashir did not have any other wife except this witness. She claimed that she was married to Fazal Karim before the creation of this country and that Fazal Karim was still alive. She also stated that from Muhammad Bashir she had four children, three sons and a daughter and Rafiq was one of them. Muhammad Hussain, real brother of Muhammad Bashir appeared as D.W.5 and stated that Rafiq was the son of Muhammad Bashir while Muhammad Rafiq appeared as D.W.6, Exh. D.W. 3/1 is the birth entry recorded in 1936.
According to it a son was born to Bashir Ahmad on 13-11-1935, D.W. 3/2 is the death entry of Muhammad Bashir who died on 17-8-1965. D.W. 3/3, is the police diary dated 15-8-1965 which shows that while lodging this report Bashir was accompanied with his son Muhammad Rafiq D.W.
3/4 is mutation No,2412 sanctioned on 26-2-1973 according to which Rafiq was found entitled to the inheritance of the estate of Muhammad Bashir as his son D.W.1/1 is sale-deed registered on 1-6- 1966 whereby Muhammad Hussain, brother of Bashir deceased and Rafiq had sold 4/9 share in house No, 119-B, inside Bhati Gate. Lahore. In this sale-deed parentage of Muhammad Rafiq was recorded as Bashir Ahmad.
13. The testimony of P.W. 3, P.W. 5 and P.W..6, D.W. 1, D .W . 2 and D.W. 3 is not of any significance because it is either hearsay or the witnesses had no special means of knowledge to depose as to relationship of Muhammad Rafiq with Muhammad Bashir. The oral testimony from P.W. 1, P.W. 2, the real sisters of the deceased. D.W. 4 Mst. Hajran the wife of the deceased, D.W. 5, Muhammad Hussain the real brother of the deceased is of course relevant because they are closely related family members and had the special means of knowledge. The plaintiff appeared as P.W. 3 and Muhammad Rafiq appeared as D.W.6, They are deposing in their own favour.
14. As far as the documentary evidence is concerned, the earlier suit of Muhammad Rafiq was dismissed under rule 8 of Order IX of the Code of Civil Procedure. It has, therefore, no bearing on the controversy. Likewise, the grant of succession certificate to Nazir Exh. P2 also does not decide relationship of Muhammad Rafiq with Muhamamd Bashir. The statement of Fazal Karim in the first round of litigation (produced as Exh. P.3( was not substantive evidence for the purposes of this suit, particularly when it has come on the record that he was alive, Exhs. P.4 and P.5, are the copies from the register of disposal of criminal case. These appear to be somewhat relevant as the parentage of Muhammad Rafiq given in these documents is Fazal Karim.
15. Exh. D.3 1 shows the birth of a son to Muhammad Bashir. His name is not given in this entry Exh.D.3/2 is also nor relevant Exh. D.W. 3/3, the police diary is somewhat relevant. The finding of the Revenue Officer in Exh.D.3/4 that Rafiq was the son of Muhammad Bashir rendered in the summary proceedings is not binding on the Civil Court. D.W. 1/1, (the sale-deed) is somewhat relevant.
16. As far as the oral evidence is concerned, it stands proved that Mst. Hajran ws the mother of Muhammad Rafiq. She also admitted that she was married to Fazal Karim who was still alive but according to her this was her second marriage. Mst. Hajran had a motive to support her son. She was evasive on material questions particularly on the year of birth of Muhammad Rafiq. As far as Muhammad Hussain, the brother of the deceased, is concerned he was apparently suppressing truth. According to him Muhammad Bashir was married to Mst. Hajran 12 years prior to the creation of the country. According to his testimony, the year of marriage of Mst. Hajran with the deceased Muhammad Bashir comes to 1935 while Muhammad Rafiq who appeared as a witness in 1978 claimed his age as 47 years which means that his year of birth was 1931. Therefore, his statement that Muhammad Rafiq was the son of Muhammad Bashir is not true. P.W.1, real sister of Muhammad Bashir stated that Bashir was married to Mst. Nawab Bibi 46 years back. Her statement was recorded in 1973 and according to her statement the first marriage of Bashir with. Mst. Nawab Bibi comes to somewhere in 1927. It is also on record that four children were born from this wedlock.
Therefore, the statement made by the two real sisters not only fits in the circumstances of the case but also inspires confidnece.
17. As far as the documentary evidence is concerned, only two documents produced by the petitioner are relevant i.e. Exh. D.3/3, the police diary and Exh. D.W. 1/1 the sale-deed. As far as the police diary is concerned, it was not properly proved and as far as the sale-deed is concerned, the parentage of Muhamamd Rafiq shown as Muhammad Bashir was an admission in his own favour.
As against that in Exhs. P4 and P.5, the parentage of Muhammad Rafiq was given as Fazal Karim.
The burden to prove that Rafiq was son of Muhammad Bashir was on the petitioner and even it could be said that evidence of the parties was equally balanced, it is the party on whom lies burden to prove who should fail.
18. For the above reasons, no case is made out for interference. This revision petition is dismissed with no order as to costs.
Revision .