' This is a regular second appeal under section 100, C. P.0 . Against the judgment and decree, dated 22-3-1973 passed by learned District Judge, Lahore and also against the judgment and decree, dated 3-3-1969 passed by learned Civil Judge, Lahore whereby both the Courts below dismissed the suit of the plaintiff.
2. Briefly stated the case of the appellant/plaintiff is that she brought a suit for possession of 242 Kanals and 12 Marlas of agricultural land situated in Chak No,35 Burj Mahalam Tehsil Chunian District Lahore. The claim of the appellant in that suit was that she was daughter of one Muhammad Din son of Allah Ditta and her father died when she was about 2 years old leaving behind the appellant only child from his wife Mst. Janat Bibi. She was minor and she could not bring suit for realization of the land in question and the present suit was filed through one Chiragh Din son of Jamal Din resident of Burj Mahalam Lahore but during this period the land question was got mutated by the respondent in her own name, and in this way the appellant was deprived of the inheritance from her deceased father, the said Muhammad Din. The suit was contested by the respondent and out of the pleadings of the parties following issues were framed by the trial Court:- - Issues
(1) Who were the heirs in respect of the estate at the time of death of Muhammad Din and what are their shares? OPP
(2) Whether the suit is barred by time? OPD
(3) Whether the plaintiff was bound by the gift made by Mst. Raj Bibi? OPD
(4) Relief.
3. Both the parties adduced their respective evidence and the learned trial Court dismissed the suit of the plaintiff/appellant vide its judgment and decree, dated 3-3-1969. An appeal was preferred against the judgment and decree which was dismissed by the learned District Judge, Lahore vide impugned judgment and decree, dated 22-3-1973.
4. Learned counsel for the appellant has submitted that Mst. Bashiran Bibi filed a suit on 24-4-1956 for measuring 248 Kanals, 4 Marlas, situated in village Burj Mahalam and Burj Kalan and Mutation of Inheritance No,118, dated 3-6-1943 sanctioned in favour of Mst. Churran Bibi respondent and her mother Mst. Raj Bibi in respect of the land situated at village Burj Mahalam and Mutation of Inheritance No, 65, dated 27-7-1943 sanctioned in favour of Mst. Raj Bibi in respect of the land situated in village Burj Kalan and subsequent mutation of oral gift made by Mst. Raj Bibi in favour of Mst. Churran Bibi respondent through Mutation No,207, dated 5-2-1945 regarding the land situated in village Burj Mahalam be set aside and declared to be illegal and not binding on the rights of the plaintiff as the plaintiff Mst. Bashiran Bibi was real daughter of deceased Muhammad Din son of Allah Ditta and the plaintiff is entitled to get whole of the estate left by her father Muhammad Din and that the respondent Mst. Churran Bibi contested the suit and denied the version of the plaintiff stating that the plaintiff has no nexus with the deceased Muhammad Din. The defendant's main defence was that plaintiff Mst. Bashiran bibi was daughter of Mst. Janat Bibi from her second husband's friend namely Umar Din son of Allah Din as both Ahmad Din i.e, second husband of Mst.
Janat Bibi and thereafter, she was married with Ahmad Din son of Illahi Bukhish and that deceased Muhammad Din son of Allah Ditta was remained unmarried and died issueless, and that the plaintiff/appellant Mst. Bashiran Bibi produced 24 P.Ws. And also tendered in her evidence documents Exh.P.1 to Exh.P.24/48 whereas the respondent produced 11 P.Ws. And also tendered documents Exh.D.1 to Exh.D.22. The learned trial Court decided Issues Nos.2 and 3 in favour of the 1.- plaintiff/appellant whereas decided issues Nos.1 and 4 against her and dismissed the suit of the plaintiff on 3-3-1969. The plaintiff tiled an appeal before the learned District Judge, Lahore which was also dismissed on 22-3-1973. He also submitted that the main dispute between the parties was that whether their predecessor-in interest namely Muhammad Din son of Allah Ditta died in the year 1943 remained unmarried and died issueless or was married with Mst. Jannat Bibi, who is mother of Mst. Bashiran Bibi appellant No,1 and the appellant No,1 was born out of their wedlock on 14-10-1941 and she is entitled to inherit the suit land left by Muhammad Din deceased.
5. Learned counsel for the appellant submitted that Mst. Bashiran Bibi produced most important witness P.W.1 Mst. Janat Bibi and she stated that she was married with Muhammad Din deceased and out of their wedlock plaintiff Mst. Bashiran Bibi was born. Her Nikah was solemnized by Mian Allah Bukhish, Imam Masjid of village Burj Mahalam and the witnesses of Nikah were her uncle namely Abdullah and her real brother. Khushi Muhammad P.W.2 and P.W.10 respectively and Mst.
Bashiran Bibi was born after three years of marriage and her husband died about two years after the birth of Mst. Bashiran Bibi, and thereafter she got her second marriage with Ahmad Din about six months. He further submitted that neither the main statement of the P.W. Was cross-examined nor any suggestion was made to the witness that she was not married with Muhammad Din and the plaintiff Bashiran Bibi was not born out of their wedlock. He also urged that the appellant also produced the witness of Nikah namely Abdullah P.W.2 who deposed that he was present in the marriage and the Nikah was performed in his presence by Mian Allah Bukhish, Nikah Khawan and out of their wedlock Mst. Bashiran Bibi was born and both the child and her mother remained in the house of Muhammad Din till his death. The plaintiff also produced P.W.3 Nikah Khawan namely Allah Bukhish who also deposed that he performed Nikah of Mst. Janat Bibi with Muhammad Din 18 years back and out of the wedlock Mst. Bashiran Bibi was born. He also deposed that the said Muhamamd Din died after five years of the marriage when Mst. Bashiran Bibi was 2-1/2 years old.
This witness was also not cross-examined on the relevant points of solemnization of Nikah and birth of Mst. Bashiran Bibi. The appellant also produced Mst. Fatima Bibi, Dai, widow of Waryam as P.W.4 who deposed that she got delivered Mst. Bashiran Bibi from Janat Bibi, wife of Muhammad Din and Muhammad Din died about two years after the birth of Mst. Bashiran Bibi and Mst. Janat Bibi thereafter contracted her second marriage with Ahmad Din. This witness was not cross- examined on the relevant points nor was any suggestion made to her that she did not get delivered the plaintiff Mst. Bashiran Bibi from Mst. Janat Bibi, and that Mst. Bashiran Bibi was not daughter of Muhammad Din. The plaintiff also produced Mst. Rakhi idow of Chiragh Din as P.W.5.
This witness deposed that after the death of her husband she adopted Muhammad Din son of Allah Ditta as she was issueless and she brought up Muhammad Din and when he became young she got him married with Mst. Janat Bibi and out of the wedlock a daughter namely Mst. Bashiran Bibi was born and when Mst. Bashiran Bibi was about 2-1/2 years old the said Muhammad Din was died. She also deposed that she received contribution money from her relatives on the marriage and the Behi was also produced by her as Exh.P.1. This was a very material witness and relative of both the parties but no direct relevant cross-examination was made. Moreover, no suggestion was made to her that due to which reason or enmity she deposed against the defendants/respondents. The plaintiff also produced Noor Ahmad Chowkidar of village Nizampura as P.W.6 who deposed that he got entered the fact of birth of Mst. Bashiran Bibi in the relevant register as daughter of Muhammad Din. This witness also established relations with deceased Muhammad Din and denied that one Umar Din son of Allah Ditta was resident of village Nizampura.
Jamal Din son of Fareeda 'P.W.7 deposed that Mst. Allah Rakhi adopted Muhammad Din who was married with Mst. Janat Bibi. The Nikah was performed in his presence and Mst. Janat Bibi remained his wife till his death. He also deposed that on the marriage of Muhammad Din he recorded money contribution in the Behi Exh.P.1 and the appellant/plaintiff was born out of the wedlock. This witness was also not cross-examined on the relevant points that the Nikah was not performed in his presence or he did not write the detail of the money contribution in Behi or that Mst. Bashiran Bibi is not daughter of Muhammad Din. Rather the suggestion given to him that who performed the Nikah of Muhammad Din at what time the Nikah was solemnized and in which season and after how much time the plaintiff Mst. Bashiran Bibi was born implies admission on the part of the defendants side that Nikah was performed and the plaintiff Mst. Bashiran Bibi was born out of the wedlock. The appellant also produced Sohan Din P.W.8, Bala son of Chiragh Din P.W.9 and Khushi Muhammad P.W.10. All these witnesses stated that Mst. Janat Bibi was married with Muhammad Din deceased and Mst. Bashiran Bibi was born out of their wedlock but the witnesses were not cross-examined that they had made incorrect statement. Another P.W.11 namely Imam Din was produced by the appellant who stated about the factum of Nikah between Mst. Janat Bibi and Muhammad Din. He also stated that Mst. Bashiran Bibi was born out of their wedlock. The plaintiff produced Ali Muhammad P.W.12 and Muhammad Din P.W.13 who deposed that they attended the marriage ceremony of Muhammad Din with Mst. Janat Bibi and Mst. Bashiran Bibi was born out of their wedlock. They also deposed that Nikah was performed by Maulvi Allah Rakha, Imam Masjid of the village. The statements of both the P. Ws. Were also remained uncross-examined on the relevant points of marriage and relationship of Bashiran Bibi with Muhammad Din and Janat Bibi. The plaintiff also produced the second husband of Mst. Janat Bibi, namely, Ahmad Din as P.W.14 in order to disprove the allegation of the defendants that Mst. Janat Bibi was abducted by Ahmad Din and Umar Din. This witness stated that he did not abduct Mst. Janat Bibi alongwith Umar Din but on the other hand this witness proved that her wife Janat Bibi was previously married with Muhammad Din. Thereafter, the plaintiff produced Mst. Allah Jawai widow of Illahia as P.W.15. This witness is real paternal-aunt of Mst. Janat Bibi in whose house Janat Bibi gave birth to Mst. Bashiran Bibi. This witness also stated that Mst. Janat Bibi remained as wife of Muhammad Din for about five years till his death and Muhammad Din died when Mst. Bashiran Bibi was about two years of age. This witness also stated that at the time of birth the name of Mst. Bashiran Bibi was delivered to the Chowkidar as well as to Fatima Bibi Dai, as Barktey but thereafter her name was changed from Barkatey Bibi to Bashiran Bibi. This witness was not cross-examined on material and relevant points of her statement.
6. The evidence of the plaintiff was closed and defendants/respondents produced D.W.1 Muhammad Ishaq, Assistant Clerk Office of D H.O. Kassur. This witness produced the of his office in 1941 which was changed later on, on the application of g-iardian of Mst. Bashiran Bibi. Chiragh Vaccinator Inspector, District Board appeared as D.W.2, who produced his record regarding vaccination which was changed later one alongwith order as Exh.D.5. This witness did not support the version of the defendants side rather supported the claim of the plaintiff. Wali Muhammad son of Allah Din was produced as D.W.3 who deposed that he knew Muhammad Din son of Allah Ditta, who was not married and died issueless, therefore, on his death land was mutated in the names of his mother and sister. This witness has no relationship with either of the parties. In cross- examination this witness admitted that he did not know Mst. Rakhi who was wife of real brother of Allah Ditta father of Muhammad Din. This witness deposed that Mst. Janat Bibi was abducted by Ahmad Din and Umar Din but he stated in cross-examination that no action was taken against the abduction of Mst. Janat Bibi by her parents/relatives and that he never saw the abductor after the occurrence. Ilahi Bukhish son of Nabi Bukhish appeared as D.W.4 who stated that he knew Muhammad Din son of Allah Ditta who was not married with Mst. Jannat Bibi nor Mst. Bashiran Bibi was his daughter and the only legal heirs of Muhammad Din was his sister and mother. He further stated that Mst. Janat Bibi was abducted and thereafter was married with Ahmad Din and that at the time of abduction Mst. Janat Bibi was residing at the house of her parents. On cross- examination this witness admitted that Mst. Bashiran Bibi is daughter of Mst. Janat Bibi. He also stated that he heard that she was abducted and alleged abductor Umar Din was not resident of his village Burj Mahalam but resident of village Nizampura situated 6 miles away from Burj Mahalam and he heard that Umar Din was resident of Nizampura but he never saw him. This witness denied the suggestion of the plaintiff counsel that he participated in the marriage of Mst.
Janat Bibi and paid Rs,4 as contribution money. The name of this witness is present on the register Behi Exh.P.1 recorded at the time of Nikah/marriage. Therefore, the evidence of this witness is also not helpful to the respondents. Dhola son of Fateh Din and Musa son of Wali Muhammad were produced as D.W.5 and D.W.6 who simply stated that Mst. Janat Bibi was not married with Muhammad Din nor Mst. Bashiran 3ihi has any relation with him and Muhammad Din died issueless and they heard a rumour of abduction of Mst. Janat Bibi by Ahmad Din and Umar Din. On cross- examination the said witnesses admitted that they did not know personally the said Umar Din or about his residence or his relatives. D.W.6 stated that Mst. Allah Rakhi was not related to Muhammad Din and Muhammad Din died at the age of only 15 years. However, this witness admitted that he had not seen the alleged abduction of Mst. Janat Bibi. Allah Bukhish son of Nizam Din appeared as D.W.7 who simply stated that Muhammad Din was neither married nor Mst. Janat Bibi and Mst. Bashiran Bibi were related to him. This witness is real uncle of the husband of. Mst.
Churran Bibi respondent. This witness was the main mischief monger who deprived the appellants/plaintiff from their legal shares by joining hands with the concerned Halqa Patwari and succeeded to get mutation of inheritance of Muhammad Din within few days after the death of Muhammad Din to the names of her sisters and Mst. Raj Bibi mother by concealing the real facts that there was widow and daughter of deceased alive. This witness also admitted in cross- examination that there remained enmity and criminal litigation between him and Chiragh Din i.e, guardian of Mst. Bashiran Bibi. Rehmat Ali son of Jalal Din appeared as D.W.8 who stated that Mst.
Bashiran Bibi is daughter of Umar Din son of Alu who abducted Mg. Janat Bibi and then handed over her to Ahmad Din and thereafter Mst. Bashiran Bibi was born. Re also stated that at the time of second marriage of Mst. Janat Bibi with Ahmad Din her second husband was bachelor and Mst.
Janat Bibi was also bachelor. He stated that Mst. Bashiran Bibi is not daughter of Muhammad Din but daughter of Umar Din. In his cross-examination he failed to give full details/whereabouts of Umar Din. Muhammad Din son of Jalal Din appeared as D.W.9 who was Lumberdar of another village namely Matayke Dhariwal. He stated that Maulvi Allah Bukhish and his son Sharif was allotted some land in his village whereafter Mst. Churran got recorded her statement as D.W.10, who stated that her brother Muhammad Din was not married and died issueless, therefore, his inheritance was developed upon his mother and thereafter the same was gifted to her by her mother. Mst. Bashiran Bibi is not daughter of Muhammad Din. In his cross-examination he stated that there was a rumour in the village that Mst. Janat Bibi has been abducted by Ahmad Din and Umar Din but the matter was not reported to the police. He denied that she was also called with the name of Rani Bibi, and who is real father of Mst. Bashiran Bibi.
7. The plaintiff in order to rebut the version of the defendants/respondents particularly the allegation of alleged abduction of Mst. Janat Bibi by Ahmad Din and Umar Din produced the said Umar Din i.e, the alleged abductor as P.W.16. He deposed that he had no nexus with Mst. Janat Bibi and she was never abducted by him nor she was kept in his house as his wife nor he is father of Mst. Bashiran Bibi. He further stated that he was married in Mauza Nizampura and his wife name is Sadan Bibi and there are three issues from her, and he did not know the alleged Ahmad Din nor he abducted Mst. Janat Bibi alongwith him. This witness also stated that Mst. Janat Bibi was married with Muhammad Din and Mst. Bashiran Bibi was born out of that wedlock. The main contention of the respondents was that Janat Bibi was abducted by this witnes alongwith Ahmad Din and Mst.
Bashiran 3ibi is daughter of Umar Din but not a single question was put to that witness; in cross- examination that he abducted Mst. Janat Bibi alongwitn Ahmad Din and that he is fatner of the pla:ntiff Mst. Bashiran Bibi. Even no suggestion was given to that witness that he is not that Umar Din who abducted Mst. Janat Bibi. Abdul Rehman appeared as P.W.17 who produced Nikah register solemnized by Maulvi Allah Bukhish, Nikah Khawan but no cross-examination was made on his statement from the opposite side. Bashir Ahmad P.W.18 process-server appeared who got exhibited summons alongwith his report as P.W.18/1 and P.W.18/2 in order to prove that the other name of Mst. Churran Bibi respondent is Bibi Rani. P.W.19 Mushtaq Ahmad, Clerk M.B. High School produced register of admission wherein husband of Mst. Churran Bibi namely Muhammad Ali got recorded the name of his son Habib Ullah as. Muhammad Bashir. Muhammad H.V.C. District Council, Lahore appeared as P.W.0 and produced list of voters dated 30-4-1926 as Exh.P.W.20/1.
Muhammad Ashraf, Assistant Vaccination appeared as P.W.21 but he was not allowed to give his statement. Abdul Razaq, U.D.C. Election Office Pattoki appeared as P.W.22 who got exhibited in his statement voters list of Unit Nos.2036 and 2196 as Exh.P.W.21/1. Muhammad Ashraf Halqa Patwari appeared as P.W.23 and he produced pedigreetable Exh.P.W.23/1 and Exh.P.W.23/2. The plaintiff Mst.
Bashiran Cibi appeared as P.W.24 and stated that she daughter of Muhammad Din and the name of her mother is Janat Bibi. The father had died and after the death of her father her mother contracted second marriage with Ahmad Din and the disputed land was left by her father Muhammad Din as inheritance. She produced copy Jamabandi for the year 1952- 53 and also produced so many documents Exhs.P.W.24/2 to 48 and closed its case. The learned Civil Judge dismissed the suit of the plaintiff not on any sound reason but merely on the ground that the document Exh.P.1 Behi produced by the plaintiff is not signed by Jamal Din P.W.7 who deposed in evidence that he made entries in the same whereas the plaintiff made an application under Order 12, Rule 2, C.P.C. To give notice to the defendant to admit or deny the document Exh.P.1 and in fact Exh.P.1 was written by Rasham Ali who has not been produced, therefore, Behi cannot be relied upon.
8. Learned counsel for the appellant submitted that the learned Civil Judge has misinterpreted the contents of the said application and the evidence of P.W.7. In the application dated 7-6-1956, on behalf of the plaintiff five kinds of entries were stated to have been made detailed from Serial Nos.16 to 20, wherefrom only entry detailed at Serial No,16 was stated to be written by Rasham Ali whereas it was not stated in the application that the other entries details written in the Behi were also the handwriting of Rasham Ali. In order to clarify this confusion the Behi Exh.P.1 and the other attached Behi on which no exhibit was marked can be looked into. Due to some misunderstanding the learned Court marked only one exhibit on one Behi as Exh.P.1 while the other Behi remained unmarked in spite of the ;act that the same was produced before the trial Court and the same was still present on the record and the same can be seen even now. There was no contradiction between the oral and documentary evidence nor the P.W.7 deposed falsely and the reason of dismissal of the plaint is unfounded and is a result of misreading and misinterpretation of the documents on record. He further submitted that P.W.7 was not confronted by the opposite party with the entires of Behi with the suggestion that the same are not of his handwriting. Furthermore, the page on which Exh.P.1 was marked was the detail of distribution of food which was made .19-10- 1938 a day before the marriage of Muhammad Din and not the detail of contribution money. It is also apparent that the detail of contribution money was not recorded by Rasham Ali but by Jamal Din P.W. And Rasham Ali had only written the detail of distribution of food, therefore, he was not produced who was brother-in-law of respondent Mst. Churran Bibi. The respondent did not rebut the abovesaid facts and did not produce Rasham Ali as her witness. The second ground for dismissal of the suit was that P.W.1, Mst. Janat Bibi stated that her Nikah was got written and the spouses affixed their thumb-impressions whereas Nikah Khawan and other P.Ws. Stated that Nikah was performed orally. The learned trial Court failed to peruse the documentary evidence produced by the plaintiff that the factum of marriage was used to be written by the Nikah Khawan in the relevant registers upto the year 1926 but thereafter the Government issued prohibition order which were also produced in evidence and due to that reason some confusion was created in the mind of P.W.1 by asking from her vague questions. The learned trial Court illegally discarded the evidence of P.W.1 in spite of the fact that no cross-examination was made by the opposite party on the main points whether the marriage was solemnized between her and Muhammad Din or not. The third ground for dismissal of the plaint was assigned that there is contradiction in the statements of Mst.
Allah Jawai and Mst. Allah Rakhi at the house of whom the plaintiff was born. In fact both the said ladies were residents of the same Haveli, therefore, no misstatement was made by them. The last ground of dismissal was about the birth and death of children of second husband of Mst. Janat Bibi namely Ahmad Din. This ground was also unfounded factually and legally and not available, therefore, the suit cannot be dismissed on that score. In fact two copies of the birth register and death register of Muhammad Mukhtar were produced by the parties and some dubious documents were taken into consideration by the Court while deciding the case. It is also pertinent to mention here that due to that fact the respondent Churran Bibi filed an application before the learned appellate Court under Order 41, Rule 27 read with section 151, C.P.C. By stating that some contradictory documents have been produced and admitted in evidence, therefore, the respondents be allowed to adduce additional evidence. The said application filed on 20-11-1970 remained undecided by the learned appellate Court. It was also established by the appellate Court through her evidence on record that in village normally double names of the persons are called and that the respondents party had also two names and confusion was created by the opposite party by asking ambiguous and misleading questions. Similarly the reason assigned by the learned District Judge while dismissing the appeal of the appellant were also unfounded and baseless and the outcome of misreading and ministerpreting the evidence on record. The learned District Judge failed to peruse the entries of Behi placed on record wherein details of contribution money and the names of the contributors are clearly mentioned and the entries of different dates before a day of marriage has not been taken into consideration. It is also noteable that both the Courts below have discarded the evidence of real relatives of the appellant particularly the evidence of P.W.10 Khushi Muhammad real brother of Mst. Janat Bibi was disbelieved due to reason of relationship whereas under the law and dictum of the superior Courts in the cases of inheritance and to establish relationship of the parties only the close relatives of the parties are considered to be the best witnesses. In the present case the appellant proved her version by producing all the conferred persons, close relatives of the parties, who proved the case of the appellant through oral and documentary evidence whereas the respondents/defendants remained failed to controvert the same or to prove their own defence plea.
9. On the other hand learned counsel for the respondents submitted that there are two points for determination i.e, to the effect whether Bashiran Bibi appellant was the daughter of late Muhammad Din and other is that the mother of Bashiran Bibi namely Mst. Janat Bibi was the wife of Muhammad Din. Regarding first point learned counsel for the respondents submitted that both the Courts below after the appraisal of evidence have recorded concurrent finding of the fact that at the time of the demise of late Muhammad Din there were only two legal heirs, namely, Taj Bibi his mother and Mst. Churran Bibi his sister and that Bashiran Bibi was not the daughter of Muhammad Din and that Janat Bibi has not been proved to be the wife of late Muhammad Din. Late Muhammad Din died on 7-5-1943 and was issueless and did not marry during his entire lifetime. At the time of his death his mother Mst. Raj Bibi and sister Mst. Churran were the only legal heirs. Late Muhammad Din had his property in two different villages namely Chak No,35 Burj Mahalam Tehsil Chunian and Chak Burj Kala Tehsil Kasur. After the demise of late Muhammad Din Mutation No, 118, dated 30-6-1943 was sanctioned in favour of Raj Bibi the mother of late Muhammad Din and Churran his sister vide Exh.P.W.24/44. The said mutation was attested at "Ijlas-e-Aam" and it was attested by Lumberdar Allah Bukhish. In the said mutation late Muhammad Din was mentioned as issueless and without any wife. In respect of other property of late Muhammad Din at Burj Kala Mutation No,65, dated 27-7-1943 was again sanctioned in Ijlas-e-Aam only in favour of his mother Raj Bibi and his sister namely Mst. Churran, which was also attested by another Lumberdar Sardar Ali. Thirteen years elapsed and nobody claimed from any side that late Muhammad Din had ever married Janat Bibi or that the plaintiff/appellant Mst. Bashiran Bibi was daughter of late Muhammad Din. Mst. Janat Bibi while appearing as P.W.1 admitted that the sanctioning of mutation came to her knowledge but she did not claim to be the wife of late Muhammad Din. The story introduced by Mst. Bashiran Bibi that she is the daughter of late Muhammad Din is afterthought in order to usurp the property. D.Ws.3, 5, 7, 8 and D.W.10 have all deposed on oath that Mst. Janat Bibi was abducted by Umar Din and Ahmad Din. A suggestion was given to P.W.5, P.W.8, P.W.9 and P.W.11 to the effect that Umar Din abducted Mst. Janat Bibi which was denied by the aforesaid P.Ws. A suggestion was also made to P.W.10 Chiragh Din who is father-in-law of Mst. Bashiran appellant who initially filed the suit claiming to be her next friend. The evidence of the respondent/defendant to the effect that Janat Bibi was abducted by Umar Din and later on was handed over to Ahmad Din who eventually married her, finds corroboration from the birth certificate Exh.P.W.24/43 of Mst.
Bashiran Bibi where her name was recorded as Barkat Bibi and her father's name was clearly mentioned as Umar Din. Umar Din as per evidence abducted Janat Bibi, thus, the oral as well as documentary evidence clearly proves that Bashiran Bibi appellant was the daughter of Umar Din who abducted her mother Janat Bibi and was not the daughter of late Muhammad Din. It is admitted by the appellant that her name was Barkat Bibi. Chragh Din father-in-law of Bashiran Bibi filed a suit on behalf of Bashiran Bibi and claiming himself to be her next friend on 24-4-1956. Just three months before the filing of the suit, this Chiragh filed an application before the D.C./D.H.O. And got an ex parte change vide order of D.C. Dated 9-1-1956 and name of Barkat Bibi was substituted as Bashiran Bibi while the father's name was substituted from Umar Din to Muhammad Din. This was created just three months before the filing of the suit. In the application Chiragh Din had admitted that Bashiran's earlier name was Barkat Bibi. Bashiran was born on 15-10-1941 and correction was sought three months before filing of suit and after 15 years of the birth of Bashiran Bibi. The correction was mala fide, belated, afterthought and was sought to be secured for creating a false evidence and providing false basis for filing the suit claiming inheritance from the property left by late Muhammad Din, although Bashiran Bibi had no concern with Muhammad Din nor her mother, namely Janat Bibi ever married Muhammad Din. Both the Courts below have recorded concurrent finding of facts that the change in the name and parentage of Bashiran Bibi appellant at her birth certificate just before three months of the filing of the suit at the initiative of Chiragh Din was afterthought, mala fide and without any consequence. The proposition that law leans in favour of legitimacy does not mean that others property be usurped by maneouvering false evidence. He further submitted that Exh.D.10 is vaccination register and according to serial No,73 of the aforesaid register vaccination was done to Bashiran Bibi on 12-2-1942 at village Nizampura. According to the birth certificate Exh.P.W.24/43 in which subsequently, change was incorporated vide Exh.D.6 the place of birth is again mentioned as Nizampura. Muhammad Din belongs to village Burj Mahalam and had no concern with village Nizampura. From this documentary evidence is also stands proved positively that Bashiran Bibi was born at Nizampura and her father's name was Umar Din, and that after Janat Bibi was abducted by Umar Din and Ahmad Din, Umar Din later on handed over Bashiran Bibi to Ahmad Din, who latrer on married her as per evidence of the respondents/defendants. P.W.4 Fatima Bibi a witness of the appellant made an admission at line No,2 of her cross-examination that Bashiran Bibi appellant was born in the house of Ahmad Din.
Thus, it stands proved that Bashiran Bibi was born in the house of Ahmad Din and she cannot be the daughter of late Muhammad Din because had she been the daughter of late Muhammad Din, she would not have been born at the house of Ahmad Din who married Janat Bibi, as per evidence of the appellant her mother, Janat Bibi who appeared as P.W.1 and P.W.24, and that as submitted earlier, the sanctioning of two mutations was in the knowledge of,mother of ,Bashiran Bibi, namely Janat Bibi. As per her own statement as P.W.1, Janat Bibi admitted that she came to know about the attestation of this mutation immediately after the same were sanctioned. Surprisingly, she neither filed any suit nor became the next friend of Bashiran Bibi her own real daughter. It was 13 years after the sanctioning of the said mutation that Chiragh who was the father-in-law of Bashiran Bibi filed the suit asserting him to be her next friend, and that the appellant produced Umar Din in rebuttal to show that he never abducted Janat Bibi and, therefore, the entry in the birth certificate of d Bibi showing her parentage as Umar Din was not correct, and that Umar Din whose parentage is mentioned over the birth certificate of Bashiran Bibi (Exh.P.W.24/43), dated 15-10-1941 is a different person and Umar Din who appeared as P.W.16 in rebuttal is also a different person. In Exh.D.6 and Exh.P.W.24/43 the birth certificate of Bashiran Bibi the profession of Umar Din was mentioned as labourer and he belongs to village Nizampura. According to D.W.8 the original village of said Umar Din who abducted Janat Bibi was Ferozepur. On the other hand, Umar Din who appeared in rebuttal as P.W.16 is cultivator by profession and is resident of village Jagoowala.
10. The other important point as to whether Janat Bibi the mother of Bashiran Bibi appellant, was the wife of late Muhammad Din. In this respect it is submitted that Janat Bibi in her statement while appearing as P.W.1 made statement that her Nikah was reduced into writing and that over the said writing she as well as late Muhammad Din put their thumb-impression. This writing pertaining to the stated Nikah between Janat Bibi P.W.1 and late Muhammad Din was never produced. This is never the case of the side of the appellant that the writing, was lost nor any application for producing secondary evidence was filed. As the best evidence was withheld, the entire other evidence oral or documentary to the factum of Nikah becomes inadmissible under law and no reliance can be placed thereupon. He relied upon 1991 SCMR 2126, PLD 1992 Lah. 366, PLD 1979 B.J. 31, 1991 MLD 1742. And PLD 1958 Kar.
355. The documentary evidence in proof of stated Nikah between Janat Bibi P.W.1 and late Muhammad Din has been produced by the appellant in the shape of P.1 which is a "Behi". Behi P.1 is not a public document, the statement of P.W.7 Jamal Din has been thoroughly discussed in the judgment of learned District Judge and the plea of the appellant's counsel to the effect that his statement escaped the notice of the Courts below is not factually correct and that the signature of Jamal Din do not find mention on Exh.P.1, that except P.1 no document was tendered or got exhibited. On Exh.P.1 Behi there is no mentioning of the marriage of Mst. Janat Bibi with late Muhammad Din and that the question of custody of Exh.P.1 is highly important. This P.1 did not come to the Court from proper custody. P.1 was produced in Court by Chiragh. Chiragh never appeared in Court as witness. Allah Rakhi while appearing as P.W.5 admitted in her cross-examination that Behi remained with her and three months before the recording of her statement, Chiragh the father-in- law of the appellant brought it for producing the same in the Court. Thus, the custody of Chiragh or Allah Rakhi P.W.5 either was not proper. Behi is a document which is prepared and kept for keeping in mind the factum of "Newndra" given by the friends and relatives of the bride and bridegroom.
Chiragh and Allah Rakhi were not relative of Janat Bibi or Muhammad Din and they were not supposed to keep Behi. Had the Behi Exh.P.1 been genuine document, the same ought to have been in the custody of either Muhammad Din (deceased) or Janat Bibi or the relative of Muhammad Din and Janat Bibi, and that in P.1 there are entries pertaining to the marriage of other persons also which fact falsifies the claim of Allah Rakhi P.W.5 that Behi Exh.P.1 remained in her custody throughout, and that the District Judge in his judgment has recorded a finding that such type of document (Exh.P.1 Behi) can be prepared at any time and no reliance can be placed thereon, and that there are names of various persons on Exh.P.1 but none has been produced in support of the plea that they ever gave any "Newndra", and that there is not a single amount of "Newndra" mentioned in the Behi Exh.P.l, the document which is primarily meant for keeping the memorandum pertaining to the payment of "Newndra", and that both the Courts below after considering the document and after appraisal of the oral evidence pertaining to the aforesaid document, recorded finding of fact that the said document was forged and was falsely prepared by the appellant, and that P.W.5 namely Allah Rakhi and again P.W.12 A11 Muhammad the witnesses of appellant made categorical admission in their statement that at the time of Nikah the age of late Muhammad Din was 12 years. Janat Bibi who claims to be the wife of Muhammad Din appeared as P.W.1 on 27-10- 1956 and deposed her age as 45 years. The Behi P.1 which has been introduced by the appellant is a document allegedly showing the marriage of late Muhammad Din as dated 19-10-1938. Thus, Janat Bibi who according to the case of appellant, was married on 19-10-1938 would be 27 years of age at the time of her marriage. The story introduced by the appellant appears to be extremely rediculous and unbelievable because the age of late Muhammad Din the alleged husband, as per case of the appellant at the time of his marriage was 12 years while the age of bride, namely, Janat Bibi would be 27 years at the time of her marriage. How a boy of 12 years can be married to 27 years old lady. The entire case, thus falls down, and that the appellants have also raised a plea in their arguments that there are two Mukthars. One is shown to be born in the year 1943 while the date of birth of other Mukhtar pertained to the year 1949. In this respect one application filed by the side of the respondent was also pointed out before the learned District- Judge for seeking clarification. On the premises of this application, the counsel for the appellant was making a case for remand, and that as per the evidence of Ahmad Din himself who appeared as P.W.14, Mukhtar was his son and was also born out of the wedlock of Janat Bibi. It is never the case of the appellant that Mukhtar was the son of late Muhammad Din. As Mukhtar as per evidence of the appellant is not connected with late Muhammad Din, thus, there is no justification for remanding the case in this regard. He further submitted that it is not a case for remand because the suit was filed 43 years back, the plaintiff/appellant concluded her evidence on 5-1-1957 and the defendants/respondents concluded their evidence on 5-3-1958. On 4-5-1959 an issue was framed i.e, Issue No,4 to the effect that as to whether the plaintiff is the daughter of late Muhammad Din.
The learned Civil Judge allowed to produce fresh evidence on the aforesaid issue which order was subsequently set aside by this Honourable Court vide order, dated 20-10-1959 and the revision filed by the respondent bearing Civil Revision No,213 of 1959 was accepted. Again on 24-5-1962 the learned Civil Judge granted permission to the appellant to adduce fresh evidence that she had attained majority and she, therefore, was not bound by the earlier evidence produced by her stated guardian, namely, Chiragh. This order of the learned Civil Judge was impugned by the respondent side in their Civil Revision No,466 of 1962 which was dismissed by this Honourable Court on 9-5-1967 and the plaintiff produced fresh evidence, and that afterwards, the trial Judge, after appraisal of the entire evidence recorded a finding of fact that Janat Bibi was not the wife of late Muhammad Din and further Bashiran Bibi was not the daughter of late Muhammad Din. The finding of the fact was affirmed by the learned District Judge in his judgment in which again the entire evidence was appraised. This Honourable Court in exercise of its jurisdiction in R.S.A. Does not substitute its finding with the finding of the Courts below. The R.S.A. Is not competent and deserves dismissal. It is pertinent to mention here that after the sanctioning of mutations of inheritance of late Muhammad Din in favour of his mother Raj Bibi and sister, namely Churan Bibi, Raj Bibi made a gift of her entire share in favour of her daughter, namely, Churan Bibi. Subsequently Churan Bibi transferred the entire property in favour of Muhammad Bashir son of Muhammad Ali her son by way of gift, and that the R.S.A. Filed by the appellants is not properly constituted. The certified copy of the judgment and decree of the trial Court has not been appended. No dispensation was sought from the Honourable Court. The R.S.A. Thus, deserves dismissal, and that the appellants in their written statements simply narrated the portions of the statements of the parties and even while doing so pick and choose was done. This Honourable Court in the exercise of its jurisdiction while deciding R.S.A. Does not indulge in the reappraisal of evidence that being the function of the Court below. As the two Courts below, after the appraisal of the evidence, have recorded concurrent finding of facts on both material issues i.e, Issues Nos.1 and 4, and that no doubt law leans in favour of legitimacy. That, however, does not mean that a party in order to usurp the property of other persons be allowed to maneouver false evidence just before the filing of the suit. In the present case the documentary evidence positively prove that Bashiran Bibi was not the daughter of Muhammad Din and that, in fact, her name was Barkat Bibi and her father's name was recorded as Umar Din in her birth certificate, and that no misreading or non-reading with the name has been pointed out by the appellants. The appellant conveniently left the portions of the statements of the witnesses which did not suit them and mala fide and dishonest pick and choose was done. As already argued that the two Courts below have already made appraisal of evidence and recorded concurrent finding of fact. The exercise of reappraisal of evidence cannot be done while deciding the R.S.A. R.S.A. Can be decided on the basis of legal submission and law points, and that the late Mst. Churran Bibi the mother of respondent Haji Muhammad Bashir made a registered gift of the suit land in his favour. The other sister of Haji Muhammad Bashir had no objection about the aforesaid gift. The appellants have no locus standi to raise any objection with regard to the registered gift deed made by the real mother of Haji Bashir in his favour. It will be pertinent to mention here that Raj Bibi also made a gift of her share in favour of her daughter, namely, Churan Bibi. Subsequently, as submitted earlier, Churan Bibi made a gift of the entire suit land/suit property in favour of her son Haji Muhammad Bashir through registered sale-deed. As the sister of Haji Muhammad Bashir respondent never raised any objection or grievance against the aforesaid registered gift deed, the appellants are nobody and have no locus standi to question the aforesaid registered gift deed. The objection raised in this regard by the appellants in the written statement is not only irrelevant but also mala fide and that the quality of evidence is important and not the number of witnesses for proving the evidence. As the oral evidence of the appellants stands belied by the documentary evidence, therefore, the Courts below were justified in recording concurrent finding of fact against the appellant on Issues Nos.1 and 4.
11. In rejoinder the learned counsel for the appellant submitted that as the respondents have not controverted and denied the main legal points submitted by the counsel for the appellant in the written statements in support of above titled R.S.A., therefore, under the law those legal points shall be presumed to be accepted and conceding by the respondents and that the respondents have not challenged the findings of the Court below on Issues Nos.2 and 3 before this Honourable Court nor they have raised any objection on the same in their written arguments hence, under law the findings on the issues has attained finality, and that the written arguments submitted by the respondents did not base on the real facts and law points involved in the case but the same consist of incorrect assumption which are not in consonance with the evidence and documents on record. Hence, the written arguments submitted by the respondents have no value in the eye of law, and that the contents of para. No,1 are not denied. However, it is added that when the appellants/plaintiffs produced their evidence in order to discharge their onus to prove the Issues Nos.1 and 4 by corroborative and reliable evidence by producing all the concerned persons, as well as by submitted the relevant documents the onus was shifted upon the respondents not only to rebut the evidence of the appellants but they were also duty bound under the law to prove their version regarding the illegitimacy of Mst. Bashiran Bibi and abduction of Mst. Janat Bibi by the said two persons Umar Din and Ahmad Din as the respondents party had alleged and made allegation in that respect as it has been held in well-reasoned judgment of his Lordship Mr. Justice Mian Allah Nawaz, J., in a case reported in PLD 1993 Lah.
575. The respondents have miserably failed to prove their allegation regarding the alleged abduction and illegitimacy of Mst. Janat Bibi and Mst. Bashiran Bibi respectively by producing any reliable oral or documentary evidence before the trial Court. Moreover, during the course of cross- examination no suggestion was made to the said two ladies who appeared as P.W.1 and P.W.24 regarding their alleged abduction and illegitimacy. Hence, the findings of the Courts below are not sustainable under the law and the same are liable to be set aside, and that the contents of para. 2 of the written arguments of respondents as detailed are incorrect and the same is denied. He further submitted that the findings of the Court below are based on number of misreading, misinterpretation and are the outcome of non-reading of lawful corroborative and reliable evidence produced by the appellants. The appellants have pointed out the misreading, non- reading and misinterpretation committed by the Court below in their written arguments, hence, the citation relied upon by the respondents in PLD 1955 FC 38 is not applicable in the present case and that the contents of this sub-para. As detailed by the respondents are incorrect and the same are denied. It is absolutely incorrect that at the time of death late Muhammad Din was issueless and remained unmarried. It is also incorrect that at the time of death he had only two legal heirs i.e, his mother and sister. In fact as proved by the appellants in their evidence that Muhammad Din was adopted by his paternal-aunt Mst. Allah Rakhi P.W. Got him married in October, 1938 with Mst. Janat Bibi and Nikah was solemnized by Allah Bukhish, Nikah Khawan and Imam of the village mosque in the presence of all near relatives and inhabitants and marriage ceremony was attended by all the relatives of the parties. Mst. Bashiran Bibi was born out of the wedlock, therefore, after the death of Muhammad Din the appellants Mst. Janat Bibi and Mst. Bashiran Bibi were his legal heirs. Hence, the Mutation No,118, dated 30-6-1943 in favour of Mst. Raj Bibi and Mst. Churan Bibi and Mutation No,65, dated 27-7-1943 sanctioned only in favour of Mst. Raj Bibi were illegal, void and incorrect because the appellants were the real legal heirs and were entitled to get mutations in their favour.
It is noteable that the said mutations were immediately got sanctioned by the respondents party maliciously after the death of Muhammad Din by concealing the names of the appellants.
Moreover, Mutation No,18 regarding the land situated at Burj Mahalam was not attested in the presence of the Lumberdar of that village, who was Karim Bukhish whereas the alleged mutation was identified by joining hands with Allah Bukhish of other village i.e, Lumberdar of Mauza Bhadian situated about 3 K.Ms. Away from the village of Burj Mahalam. There is also major contradictions in both the mutations regarding the legal heirs of Muhammad Din (deceased) as the Mutation No,118 was sanctioned in favour of 2 persons i.e, his mother and sister whereas Mutation No,65 was only sanctioned in favour of his mother Mst. Raj Bibi. Ail the facts are sufficient to prove the mala fide and fraud committed by respondents party just to deprive the appellants from their lawful shares.
The mutations were got sanctioned in a secret manner with mala fide intention and by playing fraud and that the parents of the appellant Mst. Janat Bibi had already denied. She was helpless lady, therefore, she had no option except to contract her second marriage whereas Mst. Bashiran Bibi was hardly about 2 years of age at the time of death of his father Muhammad Din. Due to that reason the poor lady could not take any legal action against the respondents in order to get inheritance of Muhammad Din. After the promulgation of Shariah Law in the country they also became entitled to get the whole property left by the deceased. After becoming major and her marriage Mst. Bashiran Bibi promptly filed the present suit against the respondents, and that the contents as detailed by the respondents are incorrect and the same denied. So far as the statement of D.W.3, D.W.5, D.W.7, D.W.8 and D.VV.111 concerned, the said witnesses were not related to the parties nor they have any direct knowledge about the relationship and affairs of the parties, hence, their evidence has no legal value. Moreover, the mere oral allegation levelled by them are not believable under the law. So far as the suggestion given by the respondents side to P.Ws.5, 8, 9 and 11 regarding the abduction of Mst. Janat Bibi by Umar Din he submitted that all the said P.Ws.
Unanimously denied the suggestion of the respondents side and stated in clear words that Mst.
Janat Bibi was not abducted by said Umar Din or Ahmad Din. It is noteable that no suggestion was given to P.W.1 Mst. Janat Bibi, P.W.24 Mst. Bashiran Bibi, and the other P.Ws. Who were also near relatives of the parties regarding the alleged abduction of Mst. Janat Bibi. Hence, the statement of all the P.Ws. Shall be presumed to be conceded and accepted by the respondents side. By this way the respondents have miserably failed to prove their false and baseless allegations levelled against the appellants and to discharge the burden of onus of proof shifted upon them. So far as the change of parentage of Mst. Bashiran Bibi is concerned, the same was got corrected by adopting a legal method by filing an application to the concerned authority and the correction was made by fulfilling all the legal formalities in this regard, and the application was made only to correct the father's name of Mst. Bashiran Bibi is baseless and that the name of grandfather of Mst.
Bashiran Bibi (Barkatey Bibi) was shown in the birth register as Allah Ditta, which is correct name of Umar Din i.e, alleged abductor is Allah Din. This fact clearly proved that no fraud has been committed by the appellants while getting correction of name of Mst. Bashiran Bibi. If the appellant Bashiran. Bibi was in fact daughter of Umar Din then the father's name of Umar Din would have been recorded in the relevant register as Allah Din instead of Allah Ditta, and that as stated in the foregoing paras. The relevant changes of father's name were got by the appellant in accordance with law. Therefore, the question of mala fide and fraud on the part of the appellant does not arise and that Mst. Janat Bibi according to the customs had went to the house of her paternal-aunt at Nizampura in connection with first delivery and Mst. Bashiran Bibi was born at Nizampura, therefore, her place of birth has rightly been shown as Nizampura. Hence, the allegation of respondents in this regard are baseless and without any substance, and that the witness had correctly stated that Mst. Bashiran Bibi was born in the house of Ahmad Din, who is real son of Allah Jawai i.e, real paternal-aunt of Mst. Janat Bibi. Therefore, by giving birth to Mst. Bashiran Bibi at the house of her paternal-aunt it did not mean that the child was the daughter of Ahmad Din to whom Mst. Janat Bibi was later on married after three years from the birth of Mst. Bashiran Bibi and that appellant being minor and helpless lady did not take legal action against the respondents immediately and that a suggestion was given to P.W.16 Umar Din that he is not the same person who abducted Mst.
Janat Bibi alongwith Ahmad Din. Therefore, the statement of the said witness shall be presumed to be accepted by the respondents side and they are estopped to raise this objection at this stage and that contradictions regarding written and oral Nikah cannot be given much value as there was no written Nikahnama as stated by all the P.Ws. Therefore, the question of production of the same .
Could not arise. Hence, the citations stated by the respondents have no application to the facts of the present case and that the witness Jamal Din did not assert in his statement that he has made his signature at the end of his writing. The other writings i.e, distribution of food before and after the marriage were not marked/exhibited although the same were produced on the file of the Court and the same Behis are still present and available alongwith the record of the Court below already summoned by this Honourable Court. It is further stated that there is no mentioning of marriage of Janat Bibi and Muhammad Din on the writing of Behi. The allegations about the authenticity of Exh.P. 1 are false and baseless. The other entries under attack are of later date. So far as the findings of the learned District Judge the same are incorrect and baseless. Such a document cannot be fabricated. In fact the learned District Judge could not read the amount of contribution given by the participants of the marriage, which were written in Pacca Hindsa. In fact the names of the persons who contributed the money were also present. It is also noteable that in the absence of any objection and suggestion on the part of respondents to the concerned P.W. Allah Rakhi that the Behi Exh.P.1 was forged and fabricated one there was no room left to hold this document as fabricated, forged, unreliable or liable to be discarded from the evidence. The findings of the Court below regarding this documentary evidence are absolutely illegal and untenable under the law and that so far as the age of Muhammad Din as 12 years at the time of marriage according to some witnesses cannot be given any weight as the certificates of death and birth of Muhammad Din produced by both the parties show that Muhammad Din was of about 20 years of age at the time of marriage and died at the age of 25 years. Hence, the objection of the respondents in this regard is baseless and unfounded, and that according to the own version of the respondents and the application submitted by them before the learned trial Court below it has been established that some dubious documents have been produced or taken into consideration by the learned Court while passing the impugned judgment and decree. In fact the respondents have tried to mislead and confuse some witnesses of the appellants regarding the date of birth of Muhammad Mukhtar, who was born from the first wife of Ahmad Din. According to the dictum of superior Courts such type of lengthy and misleading cross-examination has been disproved. Moreover, the respondents have not produced any concrete and direct evidence in order to disprove the fact of the marriage and. Birth of Mst. Bashiran Bibi from the wedlock of Muhammad Din (deceased). In civil matters such a benefit of doubt, if any, could not be given to the respondents and on the other hand according to Sharjah and law laid down by the superior Courts every presumption available must be given to the party who claimed to be related to a person as the law leans in favour of legitimacy, and that this Hon'ble Court in exercise of jurisdiction while deciding the above said R.S.A.
Have no authority under the law to reverse the findings of the Courts below and the present R.S.A. Is quite competent under the law and the same is liable to be accepted and that so far as the sanctioning of the subsequent mutation of the whole land by Mst. Raj Bibi in favour of Mst. Churan Bibi and thereafter, the transfer of the land by Mst. Churan Bibi in the year 1978, in favour of Muhammad Bashir is concerned, the same itself shows the mala fide greediness on the part of the respondents. It is also incorrect that R.S.A. Is not properly constituted. After the admission of the R.S.A. By this Honourable Court this objection has no legal value, and that the appellants have given relevant evidence but have also stated legal points and this Honourable Court is quite competent under the law to judge whether the findings of the Courts below are based on misreading, non- reading and misinterpretation or not, and is also competent to set aside the findings of Court below on Issues Nos.1 and 4, and that it is absolutely incorrect that the claim of the appellants is false, mala fide just to usurp the property of any other person. In fact the appellants are entitled under the law to inherit and get the property in question according to law of Shariah as well as law of the land. A detailed reply has already been given in the foregoing paras., and that the arguments of the appellants are based on correct points. Under the law if concurrent findings of facts are found based on misreading, non-reading and misinterpretation of evidence on record the findings can be set aside by this Honourable Court in R.S.A. And that the conduct of Mst. Churan Bibi and Haji Bashir Ahmad is tantamount to defraud not only to the appellants but also to this Honourable Court as well as to the previous counsel of the respondents namely Ch. Ilyas Khan.
After admission of the above said R.S.A. Respondent Mst. Churan Bibi engaged her said counsel and she remained pursuing the case through her said counsel upto her death in the year 1999 but she never disclosed about the transfer of the said land through gift made by her in favour of her son Haji Bashir Ahmad nor Bashir Ahmad came forward and gave his power of attorney to Ch. Ilyas Khan, Advocate nor he engaged any other counsel on his own behalf nor he disclosed the factum of gift during the pendency of the above titled R.S.A. Spreading over about 27 years. If the claim of Bashir Ahmad, respondent is admitted that he became the owner of the said land in the year 1978 then it would mean that the learned Advocate of Mst. Churan Bibi remained pursuing her case on behalf of a person, who had no title or interest regarding the suit property and the real owners remained slept over their right during the said period. The conduct of said respondents is not only objectionable but also disentitle them to any leniency. It is also noteable that the alleged registered gift deed also speaks the mala fide and greediness of the respondent Bashir Ahmad that the same has been fabricated only just to deprive her real sister, hence the appellants have every right to object the mala fide conduct of the respondents and that the oral and documentary evidence produced by the appellants was not only corroborative but also supported each other.
The same has been illegally ignored and discarded only on the basis of surmises and conjunctures without giving due weight under the law, hence the findings of the Courts below on both the Issues Nos.1 and 2 are illegal, unwarranted by law contradictory to each other and different reasons have been assigned by both the Courts below just to discard the same and even on the premises which has not pointed out by the respondents and also not available under the law.
12. I have given due consideration to the valuable arguments of both sides and gone through the whole evidence on record to see if there Was any misreading of the evidence or the exclusion of the relevant evidence or any dubious documents have been taken into consideration for recording the finding. This have been done in the light of the dictim laid down by the Honourable Supreme Court of Pakistan in the case of Madan Gopal v. Maran Bepari PLD 1969 SC 617 where it was observed:-- "The legal position does not admit of any doubt that a concurrent finding of fact reached by the lower Courts will not be disturbed by the High Court in a second appeal even if it disagrees with that finding on its own view of the evidence, although the concurrent finding of the lower Courts may appear to be grossly erroneous, unless, as laid down in subsection (c) of section 100, the error or defect discovered is of a substantial character pertaining to the procedure as provided by the Code or by any other law for the time being in force which may possibly have produced an error of defect in the decision of the case upon its merits. Interference would be justified if the decision of the lower Courts is found to be contrary to law or some usage having the force of law. If the finding of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail although it would not possess the same value or sanctity as a concurrent finding.
Such a finding by the lower appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning duly taking note of the reasons adduced by the first Court which have been disfavoured in the contray', finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the finding of the first appellate Court is not supported by the evidence on record or it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal."
13. The plaintiff examined 24 witnesses including herself while the defendant examined ten witnesses in defence. Both the Courts below have discussed their evidence on the relevant point without any misreading and have given sound reasons of the cpnclusion. The observation of the learned Civil Judge as-- "Mst. Jannat Bibi P.W.1 stated in cross-examination that Nikah was reduced into writing and that this document was thumb-marked by her and Muhammad Din. It is not alleged that the Nikahnama has been lost. There is no explanation why this primary evidence is not forthcoming. The other witnesses have contradicted the statement of P.W.1 by stating in cross-examination that Nikah was not written at all."
' On this point the learned District Judge observed as under:-- "She further stated in cross-examination that her Nikah was duly entered in the Nikah register and the said entry was thumb-marked by her and her husband Muhammad Din. She was contradicted by her uncle Abdullah and other witnesses on this point. Abdullah and Allah Bakhish clearly stated that Nikah was not entered in any register nor Mst. Janat Bibi thumb-marked any entry. In case Mst.
Janat Bibi had been married with Muhammad Din the Nikah registered would have been produced in the Court. The statement of Mst. Janat Bibi was very material regarding this aspect of the case.
She was confident that Nikah had been duly entered and it was thumb-marked by her and her husband Muhammad Din. Th , statements of the witnesses produced by the appellant/plaintiff are discrepant. The only documentary evidence regarding the marriage between Mst. Janat Bibi and Muhammad Din was Behi Exh.P.1. Mst. Allah Rakhi P.W.5 deposed that Muhammad Din was son of her husband's brother and she adopted him as her child because she was issueless. She further stated that she had received 'Naindra' (money received) at the time of marriage between Muhammad Din and Mst. Janat Bibi and she got entered the names of the persons who had paid the money, in Behi Exh.P.1. During cross-examination, she stated that she had purchased Behi Exh.P.1 and prior to it, no Behi was maintained by her and she did not hand over the said Behi to any body till it was taken away by Chiragh three months ago in order to produce it in Court. Her statement is clearly belied by entries made in the Behi. Jamal Din P.W.7 stated that he made entry in Behi at Exh.P.1 regarding the Naindra. Signatures of Jamal Din does not appeal under the said entry. Under entry Exh.P.1 name of Rasham Ali is recorded alongwith the words 'Khayal Khatam Paisa Hazam'. It would be pertinent to note that the amount contributed by the persons was not recorded in the Behi Exh.P.1. The other entries made in the said Behi refute the statement of Mst. Allah Rakhi that the said Behi remained in her possession throughout. While starting the Behi from the other side, it would be apparent that the names of the certain persons in respect of the marriage of Muhammad Din were recorded at pages 5 and 6 while at pages 15, 16, 17 and 18 certain names were recorded and some amount is also recorded underneath those names. Nobody came forward to state that as to who made those entries. None from the persons who contributed the moneyt the time of marriage of Muhammad Din came forward to state that' he has given Naindra at the time of marriage. Entries in the Behi Could be fabricated at any time. Taking the above facts into consideration, I hold that the entries in the Behi lead us no where and those entries cannot prove that the marriage had taken place between Mst. Jannat Bibi and Muhammad Din. Another Behi was produced; put nobody came forward to prove those entries. Thus, I am constrained to hold that I am left with the oral evidence produced by the appellant/plaintiff."
' Regarding the factum of the name of the plaintiff and her parentage, the learned District Judge made the following observation:-- "I have examined Birth Register maintained at the police station. The entries in the Birth Register are copied from the Register maintained by Chaukidar of the village. I have examined entry at serial No,73 of the page 388 of the register. Name of Barkat Bibi was written. She was shown to be the daughter of Umar Din resident of Nizampura. Name of Barkat Bibi was scored out and instead name of Bashiran was recorded. Similarly ' Umar' was scored out and instead ' Muhammad' was recorded to read it as Muhammad Din instead of Umar Din. The place of residence still remain the same. These entries were corrected under the, order of the Deputy Commissioner, dated 9-1-1956.
Similarly in the Register of Nizampura, the entires of Barkety Bibi daughter of Umar Din labourer, resident of Nizampura, were corrected and made as Bashiran Bibi daughter of Muhammad Din cultivator. Place of residence has not been changed. These entries appear to D.W.10. I have examined the copy of application Exh.D.2. This application was made by Chiragh Din son of Jamal Din though whom the present suit was filed. The application is dated 28-11-1955. In this application Chiragh Din clearly mentioned that the girl was named as Barkat Bibi. It was mentioned in para. No,2 of the application that the real father's name of Barkat Bibi was Muhammad Din, but it was inadvertently recorded as Umar Din. A prayer was made in the application that father's name of Barkat Bibi be corrected. But strangely enough name of Barkat Bibi was also changed into Bashiran Bibi although there was no such prayer in the application. Mst. Janat Bibi stated that she had given the name of the girl to Nura Chowkidar as Bashiran. Fourteen years after the birth of Barkat Bibi daughter of Umar Din of Nizampura, Chiragh Din thought of showing her to be the daughter of Muhammad Din so that she could inherit his property. When the application was made 14 years after the birth of the girl, she was known as Barkat Bibi and no request was corrected and changed to Mst. Bashiran. The order of the Deputy Commissioner, whereby the entries were corrected in the Birth Register as well as Vaccination Register, cannot affect the rights of the respondent/defendant as she was not a party to that application and she had no knowledge that the entries in the Birth Register and the Vaccination Register had been changed in this view of the matter. I hold that the change of the entries in the Birth Register and the Vaccination Register do not strengthen the case of the appellant/plaintiff."appellant/plaintiff."
' In view of the above, the judgments of the Courts below seem to be factually correct and legally sound. The R.S.A. Is dismissed, with no order as to costs.