On 4-1-1986 the petitioner filed a suit. In the plaint it was stated that the last male owner of the suit land was Abdullah Khan alias Dulla son of Imam Din. He died on 10-11-1975 and was survived by the petitioner as daughter, respondent No,1 as brother and respondent No,2 as sister. She, therefore, claims 1/2 share in the estate of her father. Respondents, however, managed to get her name excluded from the Inheritance Mutation No,354 attested on 25-8-1976. The said mutation is stated to be illegal and void. Respondent No, 2 conceded the claim of the petitioner in her written statement filed on 18-11-1986. Respondent No,1, however, took the plea that the petitioner is not the daughter of Abdullah. Following issues were framed:---
(1) Whether the suit is barred by law? OPD.
(2) Whether the plaintiff is real daughter of Abdullah Khan deceased? OPP.
(3) If Issue No,2 is proved, whether Mutation No,354, dated 25-8-1976 is illegal, null and void and ineffective qua the rights of the plaintiff on the grounds mentioned in para. No,1 of the plaint? OPP.
(4) Whether plaintiff is entitled to a decree for possession of 1/2 share from the suit land? OPP.
(5) Whether the plaintiff has got no cause of action or locus standi? OPD.
(6) Whether the suit is false and frivolous and the defendants are entitled to special costs, if so, to what extent? OPD.
(7) Relief.
' Evidence of the parties was recorded. The learned trial Court dismissed the suit on 14-6-1989 while a first appeal filed by the petitioner was dismissed by a learned Additional District Judge, Gujrat on 23-7-1990.
2. Learned counsel contends that both the learned Courts below have proceeded to misread the evidence on record and also have failed to take note of the law on the subject while passing the impugned judgments and decrees. No one has turned up for the respondents. Respondent No,1 is represented by Mr. M.D. Chaudhary, Advocate whose name stands listed in the cause list for today but he has not turned up despite several calls. The respondents are accordingly proceeded against ex parte.
3. I have gone through the copies of the record appended with this Civil Revision. I have referred to the respective pleadings of the parties above. It will be noted that although it was denied that the petitioner is the daughter of Abdullah, yet no plea was taken as to whose daughter she is. P.W.1 is the maternal grandfather of the petitioner (she was a minor and this witness was also her next friend). He stated that she is daughter of Abdullah and is her heir. He stated that the respondents are children of Imam Din. In his cross-examination he stated that Seema was wife of Abdullah. It was suggested to him and he admitted that for some time the spouses had cordial relations but after the birth of the petitioner the relations got estranged. He then stated that Mst. Seema is now married to Muhammad Hussain. He denied the suggestion that after 2/3 years of Seema's marriage with Abdullah, Muhammad Hussain abducted her. He also denied that the petitioner was born thereafter. Exh.P.2 is the certified copy of Birth Entry No,4. This document narrates that a daughter named Shehnaz Parveen was born to Abdullah on 20-3-1973. In rebuttal the respondents produced Mst. Sardar Bibi as D. W.1. She stated that she is a mid-wife and had left village Rakh Kolowanwala ten years ago. She said that Seema Bibi was the wife of Abdullah but she had not done any delivery case of her as a mid-wife. D.W.2 is Suba Khan. He is the Chaukidar of the village.
He states that Seema Bibi had been abducted and that Abdullah had been trying to bring her back. He further states that he had not given information regarding the birth of any daughter of Abdullah. In his cross-examination he stated that he has not brought the Register with him where he makes the birth entries. D.W.3 is Ali Ahmad. He has stated that Seema was married to Abdullah but three years after the marriage she was abducted and that no daughter was born to Abdullah from her. In his cross-examination he states that Dullah divorced his wife three years after the abduction. He does not remember as to after how much time of the death of Abdullah was the petitioner born. He states that no case was registered regarding the abduction. Sher son of Rehmat is D.W.4. He has repeated the statement made by D.W.3. In his cross-examination he states that Dullah was dumb. He states that Dullah divorced his wife one year before his death. Further states that the petitioner was born one year after the death of Abdullah. D.W.5 is Ahmad Din, respondent No,
1. He has stated that Seema lived with Abdullah for three years and then she was abducted by Muhammad Hussain. Thereafter Abdullah divorced her. He states that the petitioner is daughter of Muhammad Hussain. He has stated that Dullah could talk and had pronounced divorce. No case was registered; that efforts were made to bring back his wife and then she was divorced.
According to D.W.5 divorce was pronounced one year after the abduction. No intimation was sent to the Union Council. He does not know as to when she was born after the said divorce. Exh.P.5 is a certificate issued by the Chairman, Arbitration Council declaring that divorce between Abdullah and his wife became effective on 8-11-1975.
4. A perusal of the above evidence would show that there is no dispute at all that the petitioner was born to Seema. There is also no dispute that Seema was lawfully wedded to Abdullah. Statement of P. W.1 was recorded on 11-4-1989 when he stated that age of the petitioner is 16 years. This means she was born somewhere in the year 1973. I may state here that this part of the statement of the said witness has not at all been questioned in the course of cross-examination. Now it has come in evidence of D.W.4 that Talaq was pronounced by Abdullah a year before his death. It is an admitted fact that he had died on 10-11-1975. This means the divorce was pronounced somewhere in the year 1974. Even if documents Exh.P.2. And P.5 are to be ignored, on the basis of the said evidence on record it stands proved that the petitioner was born to Seema during the subsistence of the wedlock between Abdullah and Seema. Now Article 128 of the Qanun-e-Shahadat Order, 1984 provides that the fact that any person was born during the continuance of a valid marriage between his mother and any man not earlier than the expiry of six lunar months from the date of marriage, or even two years after its dissolution, the matter remaining unmarried shall be conclusive proof that he is the legitimate child of that man. This rule is subject to the two exceptions mentioned therein but in the present case neither the same have been alleged nor do they exist. These are the refusal of the husband to own the child, or the birth of the child after the expiration of six lunar months from the date on which the woman had accepted that the period of Iddat had come to an end.
5. In view of the above state of evidence on record and the provisions of law it stands conclusively proved in this case that the petitioner was the legitimate child of Abdullah and Seema. The findings to the contrary recorded by the learned Courts below are accordingly liable to be interfered with in exercise of revisional jurisdiction. This Civil Revision is accordingly allowed. Both the judgments and decrees of the learned Courts below are set aside and the suit of the petitioner is decreed as prayed for. The parties are left to bear their own costs.
Revision allowed/