' This is plaintiff's second appeal before this Court who lost before the first appellate Court having succeeded before the trial Court.
2. On 21st of March 1960, defendant No, 3 created a mortgage (by registered deed Exh. D. 2) for a sum of Rs, 2,000 of 31 kanals 1 marlas of land described in the plaint, situate in village Dheerke, Tebsil Dasica, District Sialkot, in favour of defendant No, 1 followed by a sale-deed Exh. D. Is dated 23rd of September 1964, of the same land for a sum of Rs, 10.000, by defendant No, 3 in favour of defendants 1 and 2 (defendants 1 and 2 are brothers inter se) of which Rs, 5,000 were paid before the Sub-Registrar, Rs, 2,000 deducted for the discharge of mortgage debt and Rs, 3,000 paid at home.
3. The plaintiff claiming to be a son of defendant No, 3 felt aggrieved by the above transaction tiled a suit against the present respondents on 3rd of September 1964, claiming a declaration that the above sale will have no effect on his reversionary interest ; that the parties are governed by custom and defendant No, 3 had no authority to alienate the land without legal necessity and there was no legal necessity in the present case. The claim of the appellant having been controverted, seven issues were framed, whereupon the learned trial Judge held that the appellant being son of defendant No, 3 was a collateral within fifth degree ; that the property was ancestral qua the plaintiff ; that tee parties were governed by custom, and the custom being that no alienation could be made without legal necessity and that there was no such legal necessity, and the suit was maintainable in its present form and was not barred by res judicata.
4. On appeal, the learned District Judge held that the legal necessity was proved and that the plaintiff was not able to prove that he was son of defendant No, 3.
5. On behalf of the plaintiff eight documents were produced of which material being Exh. P. 1 which is a private agreement dated 4th of August 1962, which is witnessed and wherein defendant No, 3 accepted the plaintiff to be his son A similar agreement entered before the Panchayat is Exh. P. 2 which is purported to be a compromise. The plaintiff's eight witnesses are Afzal Khan (P W. 1 Chiragh Din (P. W. 2), Ishfaq Hussain (P. W. 3), Mehr Din (P. W. 4), Nawab (P. W. 5) Karam Din (P. W.
6), Mehr in (P. W. 7) and Ghulam Muhammad (P. W. 8). All these witnesses are residents of village Dheerke. Their collective evidence is to the effect that defendant No, 3 is an old man in the hands of defendants 1 and 2 and that the custom does not allow alienation without necessity that defendant No, 3 never performed Haj nor had got the eyes operated and that the plaintiff had been acknowledged by defendant No, 3 to be his son. Ishfaq Husain (P. W. 3) claimed to be the writer of Exh. P.
1.
6. The plaintiff's evidence has been controverted by documentary evidence which is Exh. D. 1 sale- deed and Exh. D. 2, mortgage deed, and the oral evidence of the defendant-respondents is of Qaim Din who stated that the appellant is not a son of defendant No, 3 and the sale was for necessity. D.
W. 3 Muhammad Husain is defendant No, 1 who supported his own case, D. W. 2 is Chiragh Din, defendant No,
3. He denied that the appellant is Ws son and claimed that he never got married. He needed the money for performing Hajj. On the claim that he never got married, there is no positive evidence of rebuttal on this point. He claimed to have kept money for Hajj and the remainder he has given to the mosque and the school. He further positively disclaimed the plaintiff to be his son.
In the sale-deed needs of respondent No, 3 were eye operation, domestic needs and performance of Hajj.
7. Relying upon Amir Ali's Mohammedan Law at page 298 the doctrine of Shuba-tul-Aqad on the authority of Patawa-i-Alamgiri, page 295, the learned counsel for the appellant argued that there is a presumption of legitimacy and of existence of marriage if a man and a woman, who are not within the prohibited degree and are not otherwise disqualified under law to contract marriage, have cohabited for a long period. But in this case, there is no such evidence of long cohabitation between the mother of the plaintiff-appellant and defendant No,
3. The learned counsel then argued that existence of agreements Exhs. P. I and P. 2 acts as an estoppel against defendant No, 3.
The doctrine of estoppel is based upon the theory the plaintiff by acting on the statement or conduct of the defendant had 4 changed his position and he will suffer a loss if the defendant allowed to go back on the statement made on conduct. No such circumstance. Is present in this case. Then it was argued that since the plaintiff bad been] claiming himself to be a son of defendant No, 3 right from 1955 to 1965, this would raise a presumption in his favour that the plaintiff- appellant is son of defendant No,
3. A claim on the part of the plaintiff simplicity cannot raise such presumption. Such a presumption, if at all it is to B arise, must be based upon conduct of the defendant himself. The learned counsel criticized the judgment of the learned District Judge on the ground that the ground of legitimacy has not properly appreciated the evidence: since he opined that to prove legitimacy, inter Alfa, the plaintiff should have produced his mother, but he has not done so whereas the other witnesses had already stated that the mother of the appellant had died. This fact of Mst. Mahandan having died is stated briefly in the cross-examination of P. W.
4 Mehar Din. No other witness including the plaintiff appellant had averred this fact. Moreover, mere misappreciation of evident in the absence of misreading or misrepresentation cannot invite the Jurisdiction of this Court. He further contended that the learned District Judge erred in properly enunciating the significance of burden of proof which in the case of legitimacy is of a very light nature, since under Islamic law marriage is an oral phenomenon and if any person were called upon to prove his legitimacy, it will normally be a very di cult thing. Therefore, the norm of burden has not been properly applied by the learned District Judge. Reliance has been placed on Madan Gopal v. Moran Bepari. (1).
8. I have not been able to see any such error in the Judgment of the learned District Judge. In fact he has given an elaborate discussion on this point and has considered the materially relevant evidence. He certainly has not put the plaintiff in such impossible position wherein a normal reasonable person would be made very awkward. Nor has the learned counsel been able to point out any circumstance from the judgment that will show that the standard sought for proving the burden has not the warrant of law. It is further argued that where both the parties have led evidence, the burden of proof becomes irrelevant. There may be no gainsaying the above proposition, but this is of no assistance to the learned counsel in the advancement of his plea. If on balance, a decision has been arrived at which is based on evidence on record and proper reasoning, without discounting any fundamental piece of evidence, I do not think this Court can interfere. Nothing has been pointed out to me by the learned counsel that such fundamental violation has been committed by the learned District Judge. The learned counsel relied on Madan Gopal v. Moran Beparl (1) to support the vie w that finding of fact which is not concurrent but at variance, with that of the trial Court, does not possess the same value and sanctity as a concurrent finding, though normally such a finding prevails. But in order to succeed in upsetting such finding of fact, the principles enumerated in this judgment must be present.
9. As mentioned earlier, the learned counsel for the appellant has not been able to satisfy me that such circumstances are present in this case, nor has he pointed out any such circumstance. In the absence of a substantial error this Court does not interfere even in a finding of fact wherein the decision of the trial Court has been upset by the first appellate Court. The above authority is of no assistance to the learned counsel in his plea (1) P I. D 1969 SC 617 that in case of conflict of decision (based upon facts) between the two Courts below, the opinion of the trial Court is to be given preference. This view is supported neither by law nor by any authority.
10. On the question of necessity, the learned counsel quoted from Rattigon's Customary Law (13th Edition), page 740, para. 63 to show that the illustrations of legal necessity given in the digest do not bring the necessity mentioned by the respondent within its ambit. Both the Court below held that the eye medical treatment by the vendor and the performance of Hajj were good legal necessities. The learned Civil Judge, however, arrived at the conclusion that since no medical treatment has been proved nor defendant No, 3 had performed Hajj. Therefore, in this case there was no legal necessity. The learned District Judge differed with the learned trial Court on the ground that it was not necessary that the money should actually have been applied for the above legal necessity, All that defendants 1 aid 2 were required to satisfy themselves was that the money was needed for such purposes and the rights of the defendants were not defeated merely on the ground that ultimately the money was not applied for such legal necessity. Moreover, the vendor was a very old man and it may be presumed that he would need money for his treatment, and towards the end of his days he may go to Mecca to perform Hajj for salvation in his next life.
Therefore, according to the learned District Judge the vendees bona fide relied upon the vendor's representation, and though there was evidence on the record that the above missions had not been accomplished, but the vendees cannot be made responsible for the failure of the vendor.
Therefore, in this case legal necessity was proved. The learned counsel has not been able to successfully assail the above reasoning before me.
11. The appellant has also placed on record an application for producing additional evidence under Order XLI, rule 27, C. P. C. The documents that the appellant wishes to place before this Court are the birth entries of his children wherein it is mentioned teat Chulam Muhammad is son of Chiragh Din. The reasons that he gives in his petition are that he did not feel it necessary to give this application to the learned District Judge, but in view of the observation made by the learned District Judge it has become necessary to place these documents on the record. Under Order XLI, rule 27, C. P. C. The Appellate Court can admit additional evidence if it is a document or any witness to enable it to pronounce judgment or for any other substantial cause. Muhammad Siddiq v.
Ausalasia Bank Ltd (1) inter Act holds that additional evidence may be allowed if there is a lacuna or defect which hinders the administration of justice. In this case, no such circumstance is present.
Even if this evidence is allowed, it will only prove an admission of the appellant in his own favour and will not show conduct of defendant No,
3. The admission of the appellant will raise no presumption in his favour. The application is, therefore, disallowed.
12. Under these circumstances, there is no merit in this appeal and the same is dismissed. Since the learned counsel for the respondents has not come to contest the appeal, there will be no order as to costs.
(1) PLD 1968 SC 684