' Through this civil revision under section 115 of C.P.C. The petitioner has sought setting aside of judgment and decree of lower Appellate Court-dated 6-4-1991.
2. Brief facts of the case are that Meraj Din died on 5-10-1971, according to respondents Nos.l to 3.
He left behind three sons namely Salah-ud-Din, Siraj Din (since died) and Ahmad Khan and two daughters Akhtar Bano and Nazir Begum. The said Meraj Din deceased left behind the estate, consisting of some agricultural land in village Tibbi District Sheikhupura and also a house in Krishan Nagar. Mutation regarding the house at Krishan Nagar was sanctioned in favor of said three sons and two daughters. This mutation was challenged in the Court of learned Civil Judge and a declaration was sought by respondents Nos.1 to 3 that they are only legal heirs of said Meraj Din and Akhtar Bano and Nazir Begum were not daughters of said Meraj Din. Written statement was filed by appellants Nos.1 and 2 and they claimed that Mst. Akhtar Bano and Mst. Nazir Begum, predecessor-in-interest of respondents Nos.1 to 3, were daughters of said Meraj Din. The divergent pleadings of the parties necessitated the framing of the following issues:--
(1) Whether the suit is barred by time? OPD
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the suit has been incorrectly valued for the purposes of court-fee and jurisdiction if so what is the correct valuation for the said purposes? OPD
(4) Whether the Civil Court has no jurisdiction to try this suit? OPD
(5) Whether the suit is false and vexatious? OPD
(6) Whether the suit property has been incorrectly described in the plaint, if so, what is its effect?
OPD
(7) Whether Mst. Nazir Begum, the predecessor-in-interest of defendant No,3 and Mst. Akhtar Bano the predecessor-ininterest of defendants Nos.1 and 2 were not the real daughters of Meraj Din, deceased? OPD
(8) Whether defendants Nos.1 to 3 are not entitled to inherit the property of Meraj Din, deceased?
OPP
(9) Whether the impugned order dated 2-6-1972 passed by defendant No,4 regarding the appointment of legal heirs is illegal, without jurisdiction based on fraud misrepresentation, collusive void and ineffective against the rights of the inheritance of the plaintiffs of Merai Din deceased?
OPP
(10) Whether the plaintiffs are entitled to a decree for permanent injunction as prayed for? OPP
(11) Relief.
3. The evidence of both the parties was recorded. P.W.1, Abdul Majeed appeared and supported Salah Din etc./respondents/plaintiffs. He stated that he knew Meraj Din, who left Salah-ud-Din, Siraj Din and Ahmad Khan as sons and Mst: Akhtar Bano and Nazir Bano were not his daughters. P.W.2, Munawar Ali also supported the plaint. P.W.3, Ahmad Khan, one of plaintiffs has supported the plaint also. On the other hand the defendants/appellants produced Haji Muhammad Akbar Khan, D.W.1, who supported the assertion that Nazir Begum and Akhtar Bano were daughters of said Meraj Din. He further stated that the said two ladies had died. He further stated that Muhammad Tariq Iqbal, appellant, is son of Mst. Akhtar Bano and Muhammad Tufail, appellant was her husband.
D.W.2, Muhammad Ahmad also appeared and supported the assertion that Mst. Akhtar Bano and Nazir Begum were daughters of Meraj Din alongwith three sons. D.W.3, Muhammad Tufail appeared from one of the defendants as he was husband of Akhtar Bano and supported the defence plea.
The learned counsel for defendants also produced documentary evidence and after closure of evidence of both parties, the learned Civil Judge decided Issues Nos.1 to 6 against the defendant while Issues Nos.7 to 10 were decided against the plaintiffs/respondents and the suit was dismissed, vide judgment and decree dated 27-3-1988. The appeal was filed by the respondents, which was accepted vide judgment and decree dated 6-4-1991 and suit was decreed. Hence this civil revision.
4. The learned counsel for petitioners has argued that sufficient documentary evidence was available on record which was supported by oral statenfents of defendants' witnesses that Mst.
Akhtar Bano Begum and Nazir Begum were daughters of Meraj Din, but the learned Additional District Judge has relied upon the oral statements of the plaintiffs/respondents while passing the impugned judgment. The learned counsel has referred to Exh.D.1, according to which the house was in the name of three sons and two daughters and similarly Ahmad Khan, plaintiff/respondent made an application before Deputy Settlement Commissioner, which is Exh.D.2, in which he has stated that Meraj Din survived by three sons and two daughters. The learned counsel has further referred to an affidavit of Ahmad Khan, which is Exh.D.8 on record while Exh.D.9 is PTD and Exh.D.11 is the compensation, which had been paid by LAC to the legal heirs of the Meraj Din deceased including daughters. The learned counsel has also contended that the onus to prove that the said ladies were not daughters of Meraj Din, was on the plaintiffs, who have produced only witnesses who stated orally that Mst. Nazir Begum and Akhtar Bano were not daughters of the deceased.
According to the learned counsel these oral statements were not only rebutted orally by the witnesses of defendants but they also produced cogent and convincing documentary evidence.
The learned counsel further contended that the judgment of the learned Additional District Judge is not based on cogent evidence and no reasons for isbelieving the documentary evidence of appellants/defendants has been given, thus it is liable to be set aside.
5. On the other hand, the learned counsel appearing on behalf of the respondents has opposed this civil revision on the ground that Nazir Begum was survived by Zaka Ullah, son, who has conceded that his mother was not daughter of Meraj Din and similarly the statements of witnesses of the plaintiffs show that Nazir Begum and Akhtar Bano were not daughters of Meraj Din. He has further urged that P.W. I has stated that the said ladies were not his sisters. According to the learned counsel in such circumstances cogent evidence has been produced to prove that they were not daughters of deceased, therefore, the impugned judgment is based on cogent reasons and is sustainable. The learned counsel has also referred case-law to assert that the previous statements cannot be relied upon unless these are put to the persons who allegedly made them.
6. I have heard the learned counsel for the parties and perused the record consisting of oral as well as documentary evidence. The onus to prove Issues Nos.6 to 10 was on the respondents/Ahmad Khan etc., but they have failed to discharge the same. On the other hand legal heirs of Mst. Akhtar Bano have succeeded to prove that Ahmad Khan filed petition before the Chief Settlement Commissioner for transfer of the house situated in Krishan Nagar and his appeal remained pending, which was supported by an affidavit. On the basis of appeal filed by Ahmad Khan citation was published in daily Nawa-i-Waqt showing that Nazir Begum and Akhtar Bano were also legal heirs of said Meraj Din Mere denial of Ahmad Khan that he has not filed any appeal before the Chief Settlement Commissioner is not sufficient to hold that he has discharged onus upon him and the document was not got sent to handwriting expert for verification of his handwriting and signatures.
He also appeared before the Chief Settlement Commissioner on 2-6-1972 and Chief Settlement Commissioner vide order dated 2-6-1972 declared that Mst. Nazir Begum and Akhtar Bano were legal heirs of deceased Meraj Din alongwith his three sons. These documents have been supported by the defendants' witnesses who are not related to them. The oral statements of plaintiffs/respondents' witnesses were not sufficient to dislodge the documentary evidence and the learned Civil Judge had rightly held that the plaintiffs alongwith Mst. Nazir Begum and Akhtar Bano were legal heirs of Meraj Din deceased. The learned Additional District Judge has given preference to oral evidence against documentary evidence which is also supported by oral statements of witnesses' of defendants. The plaintiffs have claimed that they were the only legal heirs of Meraj Din, having no sisters as legal heirs of the deceased. It is tendency in our rural society that often the daughters and sisters, in order to be deprived of inheritance are denied their relationship with the deceased. The onus was upon Ahmad Khan etc./plaintiffs that he did not file petition befor the Chief Settlement Commissioner and simple denial was not sufficiei to prove the facts asserted by them. The impugned judgment of the learned Additional District Judge being based on surmises and conjecture, not supported by the evidence on record is not sustainable in the eye of law.
7. In view of above discussion, I accept this revision petition set aside the impugned judgment and decree dated 6-4-1991 passed by the learned Additional District Judge, Sheikhupura, restore the judgment and decree dated 23-7-1988 passed by the learned Civil Judge, Sheikhupura and suit filed by plaintiffs/respondents Nos.1 to 3 stands dismissed with no orders as to costs.