1. ' This revision application under section 115, C.P.C. Is directed against the judgment and decree, dated 26th July, 1986, passed by the learned District Judge, Badin, dismissing Civil Appeal No,4 of 1983, and thereby maintaining the judgment and decree, dated 13-12-1982, passed by Civil Judge, Matli, dismissing Suit No,4 of 1980.
2. ' The relevant facts giving rise to this revision application are that the plaintiffs/applicants filed suit for declaration and permanent injunction against the defendants/respondents in respect of agricultural land bearing Survey Nos.72, 73, 75, 76, 248, 349, Deh Khaskhel, Taluka Matli, District Badin. The plaintiffs/applicants' case was that the suit land was owned by own Datto son of Dino, who died leaving behind two wives, namely, Mst. Kheer Bai plaintiff No,2 and Mst. Chhuti. From Mst.
3. Kheer Bai, the late Datto had one son, namely Loung (plaintiff No,1) and from Mst. Chhuti he had one son, namely Allanditto (defendant No,1) and five daughters, namely Mst. Muradi (defendant No,1), Mst. Bhagul, Mst. Halima, Mst. Rehmat and Mst. Khani. Two daughters Mst. Rehmat and Mst.
4. Khani died issueless. Subsequently, Halima also died and left behind her son Ramzan (plaintiff No,3). Mst. Bhagul also died leaving behind defendants Nos.3 to 7 as her legal heirs. The parties were in joint possession of the suit property and were getting share of the produce according to their respective shares in the property. Few months prior to the filing of the suit, the plaintiffs/applicants learnt that their names were not incorporated in the record of rights and defendants were trying to alienate the suit property. The plaintiffs/applicants approached the defendants but to no avail and, therefore, they filed the suit.
5. ' The defendants Nos.3 to 7 in their written statement, admitted the claim of the plaintiffs/applicants. The defendants Nos.1 and 2 in their written statement contended that plaintiff/applicant No,2 was not legally wedded wife of deceased Datto and that Mst. Rehmat, who was daughter of Datto died in the lifetime of her father. They further contended that Mst. Bhagul, who was real daughter of Datto, sold her share of 22 paisas to one Jado Qaiser and defendant No,2 also sold her share to defendant No,1 and, therefore, the defendant No,1 and Jaddo were exclusive owners and were in possession of the suit land.
6. ' On the pleadings of the parties, the trial Court framed the following 12 issues:-
1. Whether the plaintiffs are the legal heirs of deceased Datto, If yes, to what extent they are entitled to inherits?
2. Whether the plaintiffs and the defendant are in joint possession of the suit land?
3. Whether Mst. Haleema, Mst. Rehmat and Mst. Khani the daughters of Datto Khaskheli died during the lifetime of their father?
4. Whether Mst. Bhagul had not sold her 22 paisas share through registered sale-deed to Jado son of Daim?
5. Whether Mst. Kheer Bai was the legally-wedded wife of deceased Datto Khashkheli?
6. Whether any cause of action has accrued to the plaintiffs?
7. Whether the suit is not properly valued and stamped?
8. Whether the suit is bad for non-joinder of the necessary party?
9. Whether the suit is not maintainable?
10. Whether the suit is time-barred?
(11) Whether the plaintiffs are entitled to any relief?
(12) What should the decree be?
7. ' The plaintiff Loung and one witness P.W. Mevo were examined on behalf of plaintiffs, who produced certain documents. The defendant No,1 examined himself and one witness D.W. Kamal Khan. The issues Nos.7 and 8 were not pressed by the parties and all other issues were decided by the trial Court against the plaintiffs/applicants and the suit was dismissed. The plaintiffs/applicants preferred appeal, which was also dismissed and hence this revision application.
8. ' The revision application was admitted to consider, whether two Courts below were justified in holding that plaintiffs/applicants Nos.1 and 2 were not heirs of deceased Datto and that, whether the lower Courts committed illegality in passing the entire judgment upon untrustworthy oral testimony of Kamal Khan and that, whether the lower Courts erred in holding that the plaintiff No,3 was not entitled to the property left by Datto, although it was proved that Mst. Halima died after.
9. Datto and lastly, whether the joint possession of the suit property by the parties was established before the learned lower Courts and it was proved that the parties were co-sharers in the suit properties and thus the lower Courts committed illegality in holding that the suit was time-barred and not maintainable.
10. ' I have heard Mr. Jhamat Jethanand, learned counsel for the applicants and Mr. Allah Bachayo Soomro, learned counsel for the respondents.
11. ' Mr. Jhamat Jethanand, learned counsel for the applicants has submitted that the evidence produced by the parties is not very lengthy and in order to determine, whether the learned lower Courts have committed illegality in arriving at the impugned conclusion, it is necessary to examine the entire evidence on record. Mr. Jhamat Jethanand, learned counsel for the applicants has read the entire evidence of P.W.1 Loung and has stated that his father Datto expired about 30 years back when he was minor aged about 4/5 years. He has further stated that defendant No,1 is his brother and Mst. Kheer Bai is his mother. He proceeded on to depose that after death of his father, the defendant No,3 managed the suit land and was giving them their share out of produce of suit land.
12. The defendants, however, without their knowledge got the land mutated in their names and stopped paying them share of the produce. He produced the copy of record of right Exh.37 and stated that he, his mother Kheer Bai and Ramzan have been deprived of their legal shares. In cross-examination, he has stated that his father had two sons from his first wife also. Allah Bachayo and Allanditto and five daughters Mst. Rehmat, Mst. Muradi, Mst. Halima, Mst. Bhagul and Mst. Khani. Out of his five sisters, Mst. Muradi is alive and the remaining four sisters have expired after the death of their father. He stated that Rehmat expired one year after the death of her father and Mst. Bhagul sold her share to Jado in the year 1967. He further stated that he has learnt that Mst. Muradi also sold away her share to defendant Allanditto. He stated that the defendants stopped paying his share of produce about 10 years back from year 1981. He further stated that defendants got the Khata of the suit land changed about 12/13 years back. He has further stated that he did not move any application to any authority, as the defendants were threatening them of dire consequences. According to him, he is residing in his village Gharo and his mother, who was Khosa by Caste, belongs to village Dandi. He denied that he and his mother were still living in village Dandi. He denied another suggestion that his father Datto was not married to Mst. Kheer Bai, his mother. He stated that Kalo Khoso is not known to him. He denied the suggestion that he was son of Kalo Khoso and was residing in village Dandi. He further denied the suggestion that Mst.
13. Halima, Rehmat and Khan died during the lifetime of Datto.
14. ' P.W. Mevo aged about 70 years, deposed that he knows the parties and that. The plaintiff is real son of Datto. He stated that Datto father of plaintiff was known to him and plaintiff Loung was born out of the wedlock between Datto and Mst. Kheer Bai. He further stated that Datto had another wife, namely, Mst. Chhuti also, who has expired and Datto also died about 30 years back when the plaintiff was minor. He stated that he never heard the name of Kalo Khoso. He further stated that four daughters of Datto died after the death of Datto and plaintiff No,3 Ramzan is son of Mst.
15. Halima, who was daughter of Datto. He specifically stated that Halima died after the death of Datto her father. He has proceeded on to state that Datto was married with Mst. Kheer Bai plaiptiff No,2 in exchange of the hand of his daughter Mst. Bhagul. He has stated that he had not attended the marriage ceremony of Datto and Mst. Kheer Bai, as, at that time his brother had expired. He has further stated that he was informed by neighbours that Datto married Mst. Kheer Bai and that she was legally wedded wife of Datto. In cross-examination, she has stated that Mst. Halima was major at the time of death of Datto. In cross-examination he has stated that marriage of Datto with Mst.
16. Kheer Bai was held in village Dandi. He had gone to Thatta in connection with the death of his brother and hence he cannot say as to who attend the marriage ceremony of Mst. Kheer Bai and Datto. He has denied the suggestion that plaintiff No,1 Loung is son of Kalo Khoso. He further denied the suggestion that all the daughters of Datto expired during his life. He submitted that Mst. Bhagul had sold out, which were Khoso.
17. ' Now coming to the evidence of defence witness, D.W.1, Allanditto, aged about 50 years, deposed in the year 1982, that his father left five daughters and two sons after his death. According to him, his father expired about 7 or 8 years back. After stating as above, he changed his version and stated that his father left one daughter Mst. Muradi, one wife, namely Mst. Chhuti (his mother) and himself.
18. He stated that remaining three sisters, Mst. Rehmat, Halima and Mst. Khani died during the lifetime of his father. He stated that his father contracted one marriage only and on his death left himself, his mother and two sisters to inherit the property. He next stated that his mother expired about 16/17 years back. He stated that he and his sister Mst. Muradi and Mst. Bhagul and his mother inherited the property, left by his father. He produced the copy of Village Form 9 Exh.52, according to which Mst. Bhagul sold her share to one Jado Khoso, through registered sale-deed. He has stated that remaining agricultural land remained in his possession and he cultivated the same and appropriated the produce. He deposed that nobody else is shareholder in the land. He has stated that his sister Mst. Muradi sold her share to him .Through registered sale-deed Exh.73.
19. According to him, the record of right was, therefore, mutated in his favour. He produced Village Form 15 Exh.74. He stated that the agricultural lands left by his father are in his possession to the extent of 75 paisas and remaining 25 paisas belongs to Jado and are in his possession. He stated that the plaintiff Loung is son of Kalo Khoso. In cross-examination he has stated that his father expired 60 years prior to the death of his mother and at that time his age was 25 years (the witness gave his age as 50 years at the time of deposition). He has further stated that his second brother Allah Bachayo expired about 80 years before the death of his father. He has stated that Mst. Bhagul died about 16/17 years back. According to this witness, his sister Mst. Bhagul was abducted by one Aroo Khoso (the defendants Nos.3 to 7, who have admitted the claim of the plaintiff, are the sons and daughter of Aroo Khoso). He denied the suggestion that his sister Mst. Bhagul was married to Aroo Khoso by his father. He further denied the suggestion that in exchange, his father married Mst.
20. Kheer Bai. He was further stated that Mst. Halima is fourth sister, expired about 100 years back. He has denied that Mst. Halima was married woman and she had one daughter and one son, namely, Ramzan plaintiff No,3. He has stated that his age was about 25 years at the time of death of Mst.
21. Halima. He denied suggestion that fourth sister died after the death of his father and mother. He has conceded that after the death of his father and mother, he used to look after the lands, left by his father and mother, on behalf of other co-sharers and that he used to feed the other shareholders. He denied that he attended the marriage ceremony of his sister Mst. Bhagul. He has denied the suggestion that plaintiff Loung is son of his father Datto and that Mst. Kheer Bai was legally-wedded wife of his father. He has, however, admitted that plaintiff No,2 Mst. Kheer Bai is the sister of Aroo Khoso, husband of Mst. Bhagul. He has denied that the plaintiffs are co-sharers in his property.
22. ' The D,W,2, Kamal Khan has stated that he is Zamindar and has remained 8,D, Member also, He has stated that he knows the family members of defendant No,1 and knew Datto father of defendant No,l, He has stated that Datto had one wife only, namely, Chhuti, According to him, Datto had two sons and five daughters. He has further stated that Mst. Muradi and Mst. Bhagul were alive at the time of death of his father Datto. He has stated that plaintiff Loung is son of Kalo Khoso and not son of Datto. He has stated that Mst. Halima died during the lifetime of her father. In cross-examination, he has stated that he is by Caste Khoso and defendants Nos.1 and 2 are Khaskheli. He has admitted that he was not on visiting terms with the father of the defendants Nos.1 and 2 in their house. He has stated that Ali Khan is local Nekmard of defendants.
23. ' After reading the pleadings and the evidence on record, Mr. Jhamat Jethanand, learned counsel for the applicants has assailed the judgments of two Courts below, contending, that both the Courts below have committed illegalities in arriving at the conclusion that Mst. Kheer Bai was not wife of Datto and Loung was son of Datto and that Mst. Halima died during the lifetime of his father Datto and, therefore, his son Ramzan (defendant No,3) was not entitled to inherit the property of Datto through his mother Mst. Halima and that the suit was barred by time.
24. ' He has vehemently attacked the findings of the trial Court on Issue No,5, whether Mst. Kheer Bai was legally-wedded wife of deceased Datto Khaskheli? He has particularly, referred to the finding of the trial Court to the effect that the evidence of D.W. Kamal Khan is trustworthy and beyond any' doubt, as he is independent witness and holds a responsible position in the village of the parties.
25. He has submitted that D.W. Kamal Khan is not the Nekmard of the plaintiffs Nos.1 and 2 and the defendants Nos.1 and 2 were Khaskheli by caste and Kamal Khan has admitted that he was not on visiting terms to Datto in his house. Mr. Jhamat Jethanand, learned counsel for the applicants has further submitted that the trial Court committed gross irregularity in disbelieving the evidence of witness Mewo for the simple reasons, that he has not participated in the marriage ceremony of Mst. Kheer Bai. He has submitted that important piece of evidence has been ignored by the trial Court. Mr. Jhamat Jethanand, learned counsel for the applicants has contended that Mst. Kheer Bai was married to Datto. No record of marriage was maintained at the relevant time, as Muslim Family Laws Ordinance, 1961 was promulgated subsequently. Mr. Jhamat Jethanand, learned counsel for the applicants has submitted that an important circumstantial evidence has not been adverted to at all. He has submitted that there was a convention in rural areas of Sindh and the practice is still there, whereby either money is taken for giving a female in marriage or in exchange, hand of female from bridegroom's family is taken, It is the case of plaintiffs/applicants that Datto married MM, Kheer Bai, the plaintiff No,2, in exchange to marriage of his daughter Mst, Bhagul to Aroo Khoso, The defendants Nos,4 to 7, who have supported the plaintiffs/applicants, on the point of marriage of Mst. Kheer Bai to Datto, are issues from the wedlock of Mst. Bhagul and Aroo Khoso. The defendants Nos.1 and 2 have not denied in their written statement that defendants Nos.3 to 7 are sons of Aroo Khoso. D.W.1 has denied that Datto was married to Mst. Kheer Bai in exchange of marriage of Mst. Bhagul to Aroo Khoso. He has, however, admitted that Mst. Bhagul was living with Aroo Khoso but has stated that Mst. Bhagul was not married to Aroo Khoso and she was abducted by Aroo Khoso. However, no evidence whatsoever has been produced by the defendants Nos.1 and 2, to establish that Mst. Bhagul was abducted by Aroo Khoso and was not married to him. It is also admitted that Aroo Khoso was brother of Mst. Kheer Bai mother of plaintiff Loung. Mr. Jhamat Jethanand, learned counsel for the applicants has submitted that this very important circumstantial piece of evidence has been totally ignored by the trial Court. He has further contended that defendants have nowhere denied that Mst. Kheer Bai was living with Datto as wife.
26. Their sole defence was that Mst. Kheer Bai was not legally-wedded wife of Datto. Mr. Jhamat Jethanand, learned counsel for the applicants has submitted that when a man and woman live together for a long period under the same roof as a husband and wife, the presumption under Muslim Law is that they are legally-wedded wife and husband and the burden of proving to the contrary is on the shoulder of person, who denies the relationship. Mr. Jhamat Jethanand has vehemently argued that the trial Court, totally ignored the presumption in law. Mr. Jhamat Jethanand has next contended that the trial Court committed another illegality by ignoring the fact that the defendants Nos.1 and 2 alleged that plaintiff No,1 Loung was son of one Kalo Khoso, thereby, that Mst. Kheer Bai was married to said Kalo Khoso. However, except for a word from the defendant Allanditto and P.W. Kamal Khan nothing has been brought on record to show that if any person with the name of Kalo Khoso existed and had any matrimonial relationship with Mst. Kheer Bai. No evidence has been produced on the point of marriage between Kalo Khoso and Mst. 'Cheer Bai and there is nothing on record to suggest, as to how and in what circumstances Mst. Kheer Bai started residing with Datto, if she was married with Kalo Khoso. There is nothing to show, if any person with the name of Kalo Khoso divorced Mst. Kheer Bai or he died and after his death Mst.
27. Kheer Bai started residing with Datto.
28. ' So far the finding to the effect that plaintiff No,3 Ramzan son of Mst. Halima, who was admittedly daughter of Datto has no right to inherit the properties left by Datto, as Mst. Halima died during the lifetime of his father Datto, Mr. Jhamat Jethanand, learned counsel for the applicants has submitted that the evidence of Allanditto is not trustworthy' at all and the trial Court committed gross irregularity in placing reliance on evidence of Allanditto and D.W. Kamal Khan.
29. ' As regards the negative finding on Issue No,2, whether the plaintiffs and defendants are in joint possession of the suit land and affirmative findings on Issue No,10, whether the suit is time-barred.
30. Mr. Jhamat Jethanand, learned counsel for the applicants has submitted that it is result of incorrect finding on Issues Nos.1 and 5. Whereby, it has been held that plaintiffs were not legal heirs of deceased Datto. He has submitted that the finding of the trial Court is liable to be set aside and once it is held .That the plaintiffs are legal heirs of Datto, they shall be deemed to be shareholders and in joint possession of the property, with the result that suit for declaration and injunction would not be hit by law of limitation.
31. ' Mr. Jhamat Jethanand, learned counsel for the applicants has submitted that the judgment of Appellate Court is mere reproduction of judgment of trial Court and suffers from the same illegalities as the judgment of the trial Court. Mr. Jhamat Jethanand has contended that although, there is concurrent findings by the two Courts below but the Appellate Court has not applied its independent mind to the evidence on record and the law applicable with the result that the findings of both the Courts below are totally perverse, illegal and not sustainable in law and are liable to be set aside.
32. ' In support of his contentions, Mr. Jhamat Jethanand has placed reliance on the following cases:--
(1) Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, (2) Mst. Najabat and others v. Mst. Sawan Bibi and others PLD 1982 SC 187, (3) Haji and others v. Khuda Yar PLD 1987 SC 453, (4)
33. Mst. Noorun Nisa v. Abdul Salam and others PLD 1982 Pesh. 42, (5) Abdul Majeed Khan v. Anwari Begum PLD 1989 SC 362 and (6) Nazir Abbas v. Manzoor Haider Shah PLD 1989 SC 568.
34. ' He has further placed reliance on para. 268 of.The principles of Muhammadan Law by D.F. Mulla.
35. ' On the other hand, the main, contention of Mr. Allah Bachayo Soomro, learned counsel for the respondent is that there is concurrent finding of facts and, therefore, this Court should not interfere in exercise of revisional jurisdiction. He has further submitted that the learned two Courts below have rightly appraised the evidence available on record and, therefore, even if a different view is possible on reappraisal of the same evidence, it should not be taken by this Court, in exercise of revisional jurisdiction. However, when confronted with the question, whether any evidence was produced by the defendants in support of their contention that the applicant Loung was son of one Kalo Khoso, he has frankly conceded that no such evidence has been brought on record. He was further asked if any evidence was brought on record to establish, whether any person with the name of Kalo Khoso ever existed having any connection or relationship with Mst. Kheer Bai, plaintiff No,2. Mr. Allah Bachayo Soomro again replied in negative. He was further pointed out that in para.3 of the plaint, it was specifically pleaded that the plaintiff No,1 Loung was son of Datto and whether in reply of said para. Of written statement, it was stated that plaintiff Loung was not son of Datto. He conceded that there was no specific denial on the point that Loung was son of Datto but it was denied that the plaintiffs are the legal heirs of the deceased Datto. He has stated that in additional para. Of the written statement a plea was taken that Mst. Kheer was not the legally-wedded wife of deceased Datto and, therefore, she and the plaintiff No,1 are not the legal heirs of deceased Datto and they did not inherit any property, left by deceased Datto. However, he has conceded that it was not specifically stated in the written statement that Loung was son of Kalo Khoso. In support of his contention, Mr. Allah Bachaho Soomro, has placed reliance on the following judgments:--
(1) Muhammad Atayat Khan v. Rahmat Khatoon 2001 MLD 1083, (2) Muhammad Subhan v.
36. Muhammad Qadam Khan 2001 MLD 1716, (3) Sardar Muhammad Mushtaq v. Sardar Muhammad Pervez Khan 2001 MLD 1725 and (4) Abdul Qayuum v. Mushk-e-Alam 2001 SCMR 798.
37. ' I have given my anxious consideration to the contentions raised by the learned counsel for the parties, and have very carefully perused the entire material available on record, as well as the judgments produced by the learned Advocates for the parties.
38. ' In the case of Ghulam Ali v. Mst. Ghulam Sarwar Naqvi (supra), it has been stated that adverse entry in the Revenue Record and non-participation in the profits of the property would not necessarily amount to an ouster of co-sharers as wrong mutation would not confer any right in respect of the property. It was also observed in that context that a suit for declaration filed upon the denial of the right of co-sharers was within time.
39. ' In the case of Mst. Najabat v. Mst. Sawan Bibi (supra), two persons, Hidayat and Inayat were co- owners of the land alongwith one Naurang, the predecessor of the appellant in that case.
40. Notwithstanding, the co-ownership and possession Naurang got a mutation sanctioned in the year 1902, whereby the names of Hidayat and Inayat were omitted as owners and Naurang was shown as sole owner. On immediate protest of Hidayat and Inayat, Naurang executed a document on 4- 5-1902, in which he admitted the ownership of Hidayat and Inayat. This arrangement was acted upon up to 1953 when legal heirs of Naurang exchanged some of the suit land with another person, which was assailed as contrary to agreement dated 4-5-1902 and suit was filed on 20-5-1954, seeking declaration of title. The suit in those circumstances was held to be within time.
41. ' In the case of Haji and others v. Khuda Yar (supra), the suit land originally belonged to one Ghous, the common ancestor of the parties in that case. On death of said Ghous, the land was entered in favour of his sons Karam, Alam, Saadat, Mehram in equal shares. Alam died subsequently issueless and on his death his share in the land was entered through mistake only in the name of one of his brother Mehram. The Revenue Record continued to show this position from 1877 to 1957 when consolidation took place in the village. The claim was preferred by the legal heirs of Karam and Saadat during consolidation proceeding that they were also entitled to inherit the share of Alam alongwith legal heirs of Mahram, which was rejected because of the entries in the Revenue Record.
42. The descendants of Karam filed a declaratory suit claiming title to the share of the deceased Alam alongwith descendants of Saadat. The suit filed in the year 1957 was held by the Honourable Supreme Court to be within time.
43. ' The ratio of the above three cases is that entries in the Revenue Record can neither create nor extinguish the title to the properties. The entries in the Revenue Record are maintained mainly for the purpose of record and fiscal purposes. Where the parties are co-owners, the possession of one was held in possession for and on behalf of all the co-owners.
44. ' In the case of Nasir Abbas v. Manzoor Haider Shah (supra), the Honourable Supreme Court has held that it is settled, that if the lower Court, misreads the evidence on record and fails to take notice of vital fact appearing therein, coming to erroneous conclusion, it would be deemed to have committed with material irregularity and its decision is open to revision by the High Court.
45. ' In the case of Mst. Noorun Nisa v. Abdul Salam and others (supra), it was held that where misreading is established, the High Court is not only competent but is duty bound to interfere with the concurrent finding of the Courts below, no matter if the finding relates to the question of facts.
46. In support of this view, reliance was placed on the authorities reported as:--
(1) PLD 1980 Pesh. 40, (2) PLD 1978 Lah. 994, (3) PLD 1980 BJ 29, (4) PLD 1980 Lah. 484, (5) PLD 1964 Kar. 549, (6) PLD 1974 SC 22 and (7) 1980 SCMR 760.
47. ' It has been held by the Honourable Supreme Court in the case of Abdul Majeed v. Anwari Begum (supra) with reference to para. 268 of the Mulla's Mohammadan Law, that a presumption regarding Muslini marriage, in the absence of direct proof can be raised and acted upon inter alia on the prolonged and continuous cohabitation as husband and wife.
48. ' In first case, relied upon by Mr. Allah Bachayo Soomro, Muhammad Atayat Khan and Rahmat Khatoon (supra), it has been held by a learned Single Judge of this Court, that the concurrent findings of two Courts below shall not be ordinarily disturbed in revisional jurisdiction until and unless it is proved that the order is illegal, suffers from material irregularity or is in excess of or without jurisdiction.
49. ' In the second case Muhammad Subhan v. Muhammad Qadam Khan (supra), a learned Single Judge of Peshawar High Court declined to interfere with the concurrent findings of the two Courts below, in the absence of jurisdictional error or infirmity in the findings of two Courts below.
50. ' In the case of Sardar Muhammad Mushtaq v. Sardar Muhammad Pervez Khan (supra) the same learned'earned Single Judge dismissed the revision application for the reason that the findings of two Courts below were not result of misreading or non-reading of evidence.
51. ' In the case of Abdul Qayuum v. Mushk-e-Alam (supra) the Honourable Supreme Court held that appraisal of evidence, undertaken by the 1st Appellate Court was perfectly in accordance with the principle settled by the superior Courts about appraisal of evidence in civil matters and same did not suffer from legal infirmity which could be interfered by the High Court under section 115, C.P.C.
52. By taking a different view of evidence and raising inference of its own. The finding of the High Court was reversed by Honourable Supreme Court for the reason that it is now finally settled law that finding of facts, recorded by the 1st Appellate Court based on appraisal of evidence and raising of inference in its discussion would not be interfered with under section 115, C.P.C., merely because a different view was also possible to be taken.
53. ' Now coming to the facts of the present case, the question for consideration is, whether the findings of two Courts below to the effect that the plaintiffs/applicants Nos.1 and 2 were not heirs of deceased Datto and the plaintiff No,3 was not entitled to the properties, left by Datto was contrary to the material available on record and whether the lower Courts committed illegality in holding that the suit was time-barred and not maintainable. It is to be examined on the touchstone of the various principles of law and whether the findings of the learned lower two Courts below were against the established principle of law.
54. ' The moot point of consideration, which will clinch most of issues in the case is whether Mst. Kheer Bai was wife of late Datto and whether plaintiff No,1 Loung is son of Datto. As narrated in the discussion above, it was specifically pleaded in the plaint that Mst. Kheer Bai was wife of late Datto.
55. In written statement, the defendants Nos.1 and 2 took plea that she was "not legally-wedded" wife of deceased Datto, while defendants Nos.3 to 7, who are admittedly maternal grandsons of Datto and sons of Mst. Bhagul, the daughter of Datto admitted relationship of husband and wife between late Datto and Mst. Kheer Bai and relationship of father and son between Datto and plaintiff No,1 Loung. Mr. Jhamat Jethanand, learned counsel for the applicants has very forcefully argued that even the defendants Nos.1 and 2 have not denied in the written statement that Mst. Kheer Bai was not wife of Datto but have taken plea that she was not legally-wedded wife of Datto. In the written statement no plea was raised that Mst. Kheer Bai was, at any time married to one Kalo Khoso and that plaintiff No,1 Loung was born out of wedlock between the said Kalo Khoso and Mst. Kheer Bai.
56. Under Order 8, rule 2, C.P.C., the defendants Nos.1 and 2 were required to raise such plea of fact in the written statement, which they failed to do and during the course of evidence, defendant No,1 Allah Ditto stated that plaintiff No,1 Loung is son of Kalo Khoso and is by Caste Khoso. In support of this contention D.W. Kamal Khan was produced, who stated that plaintiff Loung was son of Kalo Khoso and he was not son of Datto Khaskheli. It appears that the provisions contained in Order VIII, rule 2, C.P.C. Escaped the notice of two Courts below, which provides that the defendant must raise by his pleading all matters, which shows the suit not to be maintainable or that the transaction is either void or voidable on any point of law and all such ground of defence, if not raised, would be likely to take the opposite-party by surprise or would raise issues of facts, not arising out of the plaint. Admittedly, the plea that plaintiff No,2 Mst. Kheer Bai was married to Kalo Khoso or she had relations with said Kalo Khoso of the nature, which could give birth to plaintiff No,1 Loung out of such relationship was not the fact arising out of the plaint and such plea was likely to take the plaintiffs by surprise and thus, the defendants Nos.1 and 2 were duty bound to raise specific plea in the written statement which they failed to raise. It has been held in the judgment reported as 1991 CLC 324 and PLD 1969 Pesh. 241 (D.B.) that Order VIII, rule 2 makes it obligatory on the defendants to particularize in his evidence or points, either of fact or of law, which he desires to take up, so that, the plaintiff should not be taken by surprise and should have an opportunity to establish or revert to any factual or legal question by adducing necessary evidence. It has been held further in PLD 1969 Pesh. 241 and AIR 1963 Pat. 400 that if the new point is to be allowed to be raised, the Court should require the defendant to amend his written statement, frame an issue on the point and allow the parties to adduce further evidence, if any, in support of respective cases on that point.
57. Where that is not done, the trial Court cannot take into consideration a new point raised by the defendant and his decision to that point, therefore, cannot be allowed to stand.
58. The learned lower Courts below have further observed that the plaintiff failed to produce any documentary evidence to establish the factum of marriage between Datto and Mst. Kheer Bai. The learned two Courts below have failed to consider that the Muslim Family Laws Ordinance was promulgated in the year 1961, whereby the documentation, pertaining to the marriages was introduced and prior to that, no documents were normally prepared in respect of Nikah/marriage, particularly in rural areas. The learned lower Courts have further ignored a very pertinent substantial evidence. There is common practice in the rural areas of Sindh that either consideration is taken by the parents in cash or kind for marriage of their daughters or the hands of another female is taken in exchange. The plea was taken on behalf of plaintiff that Mst. Kheer Bai was married to Datto in exchange of marriage of his daughter Bhagul to Aroo Khoso, brother of Mst.
59. Kheer Bai. The sons and daughters of Aroo Khoso and Mst. Bhagul admitted the factum of marriage between Aroo Khoso and Bhagul and between Datto and Mst. Kheer Bai. The defendant No,1 Allah Ditta could not deny that Mst. Bhagul was living with Aroo Khoso brother of Mst. Kheer Bai as his wife and gave birth to defendants Nos.3 to 7, but a plea was taken that Mst. Bhagul was abducted by Aroo Khoso. However, no material was produced in support of the contention that Mst. Bhagul sister of C defendant Allah Ditta was not married to Aroo Khoso but was abducted by him. At this juncture it would be appropriate to refer para. 268 of the Mulla's Mohammadan Law, which have been cited with approval by Honourable Supreme Court. In the case of Abdul Majeed Khan v.
60. Anwari Begum (supra), according to which the presumption regarding Muslim marriage in absence of direct proof can be raised and acted upon with prolonged and continuous cohabitation as husband and wife. Both the lower Courts below totally ignored these very important aspects of facts and law.
61. I further find force in the contention of Mr. Jhamat Jethanand, learned counsel for the respondents that defendants, Nos.1 and 2 did not specifically deny the relationship of husband and wife in their written statement but took plea that Mst. Kheer Bai was not legally-wedded wife of Datto. In view of this plea, it was incumbent on defendant No,1 to establish that under what circumstances Mst.
62. Kheer Bai was living with Datto, if she was not legally-wedded wife of Datto. No doubt, it was incumbent on the plaintiffs also to produce Mst. Kheer Bai in evidence, on the point of marriage between her and Datto but it shall not have the effect of brushing aside, the evidence brought on record.
63. Likewise, the learned lower Courts, while coming to the conclusion that plaintiff No,3 Ramzan was not entitled to inherit the lands left by Datto being son of Mst. Halima because Mst. Halima died in the lifetime of Datto, wrongly placed the onus of proof on the plaintiffs. It is admitted fact that Mst.
64. Halima, mother of plaintiff No,3 was daughter of Datto. A plea was taken by defendants Nos.1 and 2 and Mst. Halima died during the lifetime of Datto and, therefore, they were required to prove this fact, which they miserably failed to do. The two Courts below have placed implicit reliance on the evidence of D.W. Kamal Khan, who has admitted in cross-examination that he was not on visiting terms with Datto in their house. In view of this admission, there is nothing to show, as to how he came to know about the time of death of the womanfolk of the family of Datto.
65. ' For the foregoing reasons, I am of the considered opinion that the impugned findings of the learned two Courts below suffer from material irregularities and misreading of evidence. The established principles of law have been totally ignored by the learned two Courts below with the result that they have come to the erroneous conclusion that Mst. Kheer Bai was not wife of Datto and plaintiff No,1 Loung was not son of Datto and that Mst. Halima mother of plaintiff No,3 Ramzan F died during the lifetime her father with the result that the plaintiff No,3 was deprived of his right of inheritance.
66. Consequent to the above findings, all the three plaintiffs/ applicants were legal heirs of deceased Datto and thus being co-owners, they shall be deemed to be in joint possession of the suit land with the defendants Nos.1 and 2 and as such the suit was within the period of limitation.
67. ' It is held that although, the learned two Courts below have given concurrent findings, but the findings suffer from illegality and as such they are open to revision by this Court. The impugned findings of both the Courts below are consequently set aside and the suit is decreed as prayed.
68. ' The revision application is allowed accordingly. The parties are left to bear their own cost.