SYED JAMSHED AL1, J. - The dispute in this case relates to inheritance of one Mst. Rehmat Bibi and arises out of the following circumstances:-
2. Vide Mutation No. 354 attested on 1.6.1955 (Ext.P-5) she inherited l/8th share out of the estate of her husband namely Dad. On her death Mutation No. 400 was attested on 23.10.1967. The respondents, who are the children of Mst. Rehmat Bibi, inherited the entire estate to the exclusion of the plaintiffs-respondents.
3. On 19-11.1972, the plaintiffs Ahmad Khan etc., respondents herein, filed a suit assailing the said mutation. Their claim was that Mst. Rehmat Bibi was first married to Nawab, their father and they are the offspring from the said marriage. According to them, after the death of their father, Nawab, Mst. Rehmat Bibi had married Dad. On that basis they claimed 4/10th share of the estate left by Mst.
Rehmat Bibi.
4. The suit was contested by the appellants who claimed that Mst. Rehmat Bibi was virgin at the time of marriage with their father Dad, the plaintiffs-respondents were not the heirs of Mst. Rehmat Bibi and that mutation No. 400 was rightly attested in their favour. Necessary issues arising out of the pleadings of the parties were framed and the suit was tried.
5. Vide judgment and decree dated 10.10.1974, the suit was decreed in favour of the plaintiffs- respondents. First appeal taken by the appellants before the learned District Court was dismissed on 22.7.1976. The defendants-appellants, are now before this Court in second appeal. The fate of this appeal depends on issue No. 1 which is reproduced hereunder:- Issue No. 1. "Whether Mst. Rehmat Bibi was mother of the plaintiffs?"
6. The learned counsel appearing for the appellants has addressed arguments on this issue alone.
He has contended that at one stage the suit was decreed ex parte on 8.9.1973. An application under Order 9 Rule 13, CPC was made on behalf of the appellants to which Rehmat Khan and Muhammad Bibi plaintiff submitted a separate reply while Hussain Bibi plaintiff submitted a separate reply in which she stated that the mother of the plaintiffs and the defendants were different. According to the learned counsel, this was a clear admission which has totally been ignored by the learned two Courts. He next contended that the judgment of the learned Courts were based on conjectures and surmises. He also submits that except the oral evidence there was no other evidence of relationship of the plaintiffs-respondents with Mst. Rehmat Bibi.
7. I have considered the submissions made by the learned counsel for the appellants. The Courts below, on the basis of evidence before them, came to the conclusion that the plaintiffs were the children of Mst. Rehmat Bibi deceased and therefore, entitled to inherit the estate of the said deceased. Finding as to relationship of one person with another is a question of fact and stands concluded by concurrent findings not liable to be interfered with in second appeal.
8. I have gone through the evidence with the assistance of the learned counsel. He could not point out any mis-reading or non-reading except to state that PW-3 was a professional witness who ought to have been disbelieved. To believe or not to believe a witness can hardly be a ground to interfere in second appeal. Appreciation of evidence by the Trial Court is to be respected despite temptation to interfere. The learned two Courts have recorded the concurrent conclusion not only on the basis of the evidence of the plaintiff-respondent but also relied upon the testimony of DW-3, in particular, who had supported the case of the plaintiffs in his depositions.
9. In fact, at the trial the case sought to be made out by the appellants-defendants was that Rehmat Bibi, the mother of the plaintiff was a different woman than Rehmat Bibi widow of Dad. It was so suggested to PW-1, Ahmad Khan, plaintiff. No evidence was led by the defendant- appellants to prove this. I have noticed that DW-1 Mansha, one of the defendant-appellants pleaded ignorance about the name of the mother of the plaintiff-respondents in his examination- in-chief. However, in cross- examination he stated that name of the plaintiff's mother was Rehman.
Apparently, he attempted to suppress the truth. Muhammad Mansha defendant also contended that part of land was being cultivated by Ahmad Khan. This was taken as a strong circumstance lending support to the version of the plaintiffs-respondents. No exception can be taken to the view taken by the learned two Courts.
10. The effect of the reply submitted by Mst. Hussain Bibi to the application for setting aside the ex parte decree has attracted my attention. In this reply Mst. Hussain Bibi stated in para 2 that the plaintiffs and defendants were born to different mothers and that defendants-appellants alone were entitled to inherit the estate of their mother. With reference to para 2 of the application, there was no occasion to so state. The plea based on this statement was never raised before any of the two Courts. This reply is thumb marked. She was never examined to affirm the contents of this reply. The so-called admission was never proved.
11. "Admission" is defined in Article 30 of the Qanun-e-Shahadat Order, 1984 and it is doubtful if the statement made in reply to the application under Order 9 Rule 13, CPC at all qualifies as an admission. I am not inclined to examine this aspect further for the reasons appearing hereinafter.
12. An admission, at best if properly proved is a piece of evidence and is not conclusive according to Article^ of the Qanun-e-Shahadat Order. Viewing, in this context, the statement contained in the aforesaid reply of Hussain Bibi could not operate to nullify the evidence on the record establishing the case of the plaintiffs-respondents.
13. Another aspect of the matter is that an admission of a co- plaintiff or co-defendant does not bind the other co-plaintiff or co- defendant. Buta and others Versus Muhammad Hussain and others (AIR 1929 Lah. 128) and Kishan Singh and others Versus Lachman Das and others (AIR 1930 Lah. 238) support this proposition.
2. In view of the above, the appeal has no merit and is accordingly, dismissed. The parties are left to bear their on costs.