Proof of Relationship under article 64

PLJ 2003 Lahore 1012

Present: ABDUL SHAKOOR PARACHA, J. SIDDIQ and others-Petitioners

versus

ABDUL AZIZ and others-Respondents C.R. No. 1562-D of 1993, heard on 4.3.2003. (i) Qanun-e-Shahadat Order, 1984 (10 of 1984)--

—Art. 64-Proof of relationship with deceased to claim share of inheritance-­Plaintiff claiming to be son of deceased filed suit against defendant daughters of deceased-Conceding statement of two defendants in his favour cannot take place of evidence-Two defendants claiming to be his sisters did not appear in witness-box to depose about fact that plaintiff was son of deceased, their father-Prior to filing suit plaintiff had tried to be impleaded in suit as a party which was pending adjudication but hisapplication to be impleaded in that suit was resisted by all daughters of deceased including two defendants who had conceded his claim in his subsequent suit-Plaintiff did not file appeal against order refusing -to impleaded him as a party therefore, that order attained finality-Two defendants making conceding statement in suit filed by plaintiff, thereafter cannot be allowed to approbate and reprobate, having denied their relationship with plaintiff in earlier suit-Plaintiffs claim as son of deceased and entitled to inherit property left by him, was not established.

[P. 1017] A

(ii) Qanun-e-Shahadat Order, 1984 (10 of 1984)--

—-Art. 64-Civil Procedure Code (V of 1908), S. 115-Plaintiffs claim to be son of deceased land owner and his entitlement to inheritance of property left by deceased-First Appellate Court while decreeing plaintiffs suit did

2003                                 SlDDIQ v.ABDUL AZIZ                            Lah. 1013

(Abdul Shakoor Paracha, J.)

not consider impact of decree passed in favour of legal heirs of deceaseddaughter of deceased land owner and rejection of application of plaintifffor impleading as a necessary party in earlier suit and title documentshaving been executed by two daughters in favour of their deceased sister,which documents have not been challenged by plaintiff-Plaintiff beingout of possession and having not been proved to be heir of deceased landowner, his suit was declaration without seeking possession was notmaintainable—Judgment and decree of Appellate Court decreeing
plaintiffs suit were set aside while that of trial Court dismissing plaintiffs
suit was restored.                                                                 [P. 1018] B

1999 SCMR 1800 and 2000 SCMR 1391; ref.

Ch. Muhammad Amin Javed, Advocate for Petitioner. Mian Ghulam Hussain, Advocate for Respondents. Ch. Nasim Sabir Addl. A.G. for Respondent No. 2. Date of hearing: 4.3.2003,

judgment

One Sikandar was allotted the suit land measuring 62 Kanals 12 Marias under the 'Ejected Tenant Scheme' at Chak No. 479/GB, Tehsil Samundari, District Faisalabad. Mst. Ghulam Fatima and Mst. Suban, both sisters, executed an agreement to sell their shares out of the suit land in favour of their third sister Mst. Rehmat Bibi videregistered agreement deed dated 11.6.1976 in consideration of Rs. 8000/-. In the agreement, it was stipulated that the sale-deed shall be executed in favour of Mst. Rehmat Bibion getting the proprietary rights. Mst. Rehmat Bibi took possession of the suit land in pursuance of the said agreement to sell. Thereafter Mutation No. 401 dated 17.11.1980 was sanctioned in favour of three daughters of Sikandar, namely Mst. Rehmat Bibi, Mst. Suban and Mst. Ghulam Fatima. Both Mst. Suban and Ghulam Fatima were asked byMst. Rehmat Bibi to execute the sale-deed but they refused, on which Mst. Rehmat Bibi filed a suit for specific performance.of the contract, in the Civil Court, Samundari on 28.1.1981, which was later on decreed.

2. During the pendency of the suit for specific performance by Mst. Rehmat Bibi, Abdul Aziz Respondent No. 1 herein, filed a civil suit against the legal heirs of Mst.Rehmat Bibi wife of Nabi Bakhsh, who .died, and two others sisters namely Mst. Suban and Mst. Ghulam Fatima, claiming himself to be the son of Sikandar and a declaration was sought that Mutation No. 401 dated 17.11.1980 in favour of three daughters of Sikandar namely Mst. Rehmat Bibi, Mst. Suban and Mst. Fatima as the lawful owners andlegal heirs of Sikandar is illegal, and without lawful authority. In the plaint, it was stated that the plaintiff Abdul Aziz at the time of partition of India was missed and lost by his family at Ganda Singh station while migrating to Pakistan and was abducted by some Pathans who took him to Attock and told him that his parents had died. The above said Pathans kept him for five years and thereafter sold the respondent-plaintiff to Kharkars who changed

1014 Lah.                          siddiq v. abdul Aziz               -                 PLJ

(Abdul Shakoor Paracha, J.)

his name from Abdul Aziz to Muhammad Hussain. About 12 years before the filing of the suit he made good his escape and went to the Province of Sindh and started working as labourer and continued searching for his parents and relatives and eventually got at them. It was further stated that plaintiffs sisters namely Mst. Suban and Ghulam Fatima recognized him. He came to know that his parents had expired and his father had left behind the land in dispute and inheritance mutation had been sanctioned in the name of his sisters excluding him. After the demise of Mst. Rehmat Bibi, her share was mutated to the legal heirs/petitioners. Mst. Suban and Ghulam Fatima acknowledged his claim and swore in an affidavit in his favour, whereas the legal heirs of Mst. Rehmat Bibi did not acknowledge him as son of Sikandar and also declined to get Mutation No. 401 dated 17.11.1980 cancelled therefore he brought the suit for declaration.

3.          Mst. Suban and Mst. Ghulam Fatima filed a conceding written
statement, whereas Defendants Nos. 4 to 12 who are legal heirs of Mst.Rehmat Bibi, contested the suit. It was denied that Abdul Aziz, Respondent
No. 1/plaintiff was the son of Sikandar and co-sharer in the suit land.

4.          The controversial pleadings of the parties raised the following
issues:—

1.  Whether the suit is not maintainable in its present form? OPD.

2.                  Whether the defendants are entitled to recover special costsfrom the plaintiff u/S. 35-A, CPC? If so, how much? OPD.

3.                  Whether the suit is collusive ? OPD.

4.                  Whether the plaintiff is a joint owner in the disputed propertyalongwith Defendants Nos. 2 to 12 being the legal heirs ofSikandar (deceased)  and the  mutation dated  12.11.1980 isillegal, against facts, without. notice, void and ineffective asagainst the rights of the plaintiff? OPD.

5.                  Whether the suit is incorrectly valued? If so, what is correctvaluation? OPD.

6.                  Relief.

5. It is important to mention here that Abdul Aziz moved an application under Order I, Rule 10, CPC to implead himself as a party in Civil Suit No. 125/1981 titledMst. Rehmat Bibi etc. vs. Mst. Fatima and others for specific performance of the contract on the ground that he is the son of Sikandar. This application was resisted by the petitioners and it was asserted that Abdul Aziz is not the son of Sikandar and in fact he is a stranger. This application filed by Abdul Aziz, respondent, was dismissed by the Civil Judge, Samundari vide order dated 13.12.1987. The evidence in the suit of Abdul Aziz for declaration was recorded by the trial Court. To prove Issue No. 4, regarding relationship of plaintiff Abdul Aziz with his sisters Mst. Rehmat Bibi, predecessor-in-interest of petitioners, Mst. Suban and

2003                                            SlDDIQ v. ABDUL AZIZ                                        Lah. 1015

(Abdul Shakoor Paracha, J.)

Mst. Ghulam Fatima, the plaintiff-respondent examined Muhammad Shafi,Rahim Bakhsh, Qasim Ali as PWs-1 to 3. Plaintiff-respondent Abdul Aziz
. ^           himself appeared as PW. 4 Copy of Mutation No. 401 was tendered in

evidence as Exh. P-l. Petitioner No. I/defendant appeared as DW-1 and alsoi           tendered in evidence copy of .judgment dated 6.3.1988 in favour of the legal

heirs of Rehmat Bihi in a suit for specific performance, copy of decree sheet Exh. D-2, copy of the order through which application of Abdul Aziz for impleading him as a party in the suit for specific performance filed by the legal heirs of Mst. Rehmat Bibi was dismissed, Exh. D-3, copy of the order of Tehsildar including Shajra Nasb as Exh. D-4.

6. The learned Civil Judge recorded a finding on Issue No. 4 against the plaintiff Abdul Aziz by observing that:

"PW-1 and PW-3 have never before seen him but only a couple ofyears before. The plaintiff did not establish the fact that his parentsever talked to him as their son of their life time. DW-1 who isallegedly his sister Rehmat's son is order than he. DW-1 is unaware*••                       of the fact that the plaintiff was lost at the time Pakistan came into

being. All the three plaintiffs witnesses seen not to be related to the plaintiff. Some blood relations or any one else who and acquainted with the plaintiffs parents could have been better and more truthful witnesses than the present ones."

Consequently, the suit of the respondent Abdul Aziz was dismissed by thelearned Civil Judge, Faisalabad vide his judgment and decree dated26.2.1990. Appeal filed thereagainst by the respondent was accepted by thelearned Additional District Judge, Samundari vide his judgment and decree—           dated 5.9.1993 by reversing the finding of the learned Civil Judge on Issue

No. 4. The learned Additional District Judge observed that:

*                        "The failure on the part of respondents to cross-examine the PWs

regarding this evidence of relationship of Abdul Aziz with father Sikandar was fatal in their interest as it is tantamount to admission."

On the question that the plaintiff did not pray for possession, the learned Additional District Judge observed that as respondent Abdul Aziz was the son of Sikandar deceased, as such was co-sharer with other respondents therefore he did not require to make such a prayer, and finding of the learned trial Court on Issue No. 1 was also reversed by the learned Additional District Judge in the impugned order. On the basis of the evidence on record, the learned First Appellate Court held that Abdul Aziz respondent is the son of Sikandar therefore he was entitled to inherit from his property and Mutation No. 401 dated 17.11.1980, through which he was excluded from the inheritance of Sikandar, was illegal. He, therefore, proceeded to decree the suit of the respondent-plaintiff by accepting the appeal.

1016 Lah.                          siddiq v. abdul Aziz                                      PLJ

(Abdul Shakoor Paracha, J.)

1. The learned counsel for the petitioners on the strength of Article 64 of the Qanun-e-Shahadat Order, 1984, contends that relationship of the plaintiff Abdul Aziz with his sisters Mst. Rehmat Bibi, Mst. Suban and Mst. Ghulam Fatima being the son of Sikandar could have been proved by producing the blood-relations. He further argued that there were contradictions in the statements PW-1 to PW-3 and the conduct of the PWs was not such that could have led to believe that Abdul Aziz was the son of Sikandar. Reliance has been placed on the cases reported as:--

1999    SCMR 1800 Khuda Bakhsh vs. Habibullah

2000    SCMR 1391 Abdul Majid vs. Syed Muhammad All Shamim etc.

Further contends that the suit of respondent Abdul Aziz was collusive with Mst. Suban and Ghulam Fatima who entered into an agreement to sell dated 11.6.1976 regarding their share and during the pendency of the suit for specific performance filed by Mst. Rehmat Bibi against other sisters, the application under Order I, Rule 10 CPC for impleading Abdul Aziz on the ground that he is the son of Sikandar and brother of Mst. Rehmat Bibi, Mst. Suban and Ghulam Fatima, was moved and disallowed by the learned Civil Judge vide his order dated 13.12.1987, which order has become final and this matter could have not been agitated by the respondent-plaintiff Abdul Aziz by filing the civil suit for declaration as no appeal against the order dated 13.12.1987 was filed.

8.          Conversely, the learned counsel for the respondent contends thatMuhammad Shafi, Rahim Bakhsh and Qasim Ali, PWs-1 to 3, were truthfulwitnesses to depose regarding the relationship of Abdul Aziz with Mst.Rehmat Bibi, Mst. Suban and Mst. Ghulam Fatima, his sisters, being the sonof Sikandar and the learned Additional District Judge has rightly relied ontheir statements coupled with the conceding written statement filed by Mst.Suban and Mst. Ghulam Fatima in the trial Court.

9.          I have considered the arguments of the learned counsel for the
parties and perused the record. Admittedly the land in dispute measuring 62Kanasl and 12 Marias was allotted to Sikandar under the 'Ejected Tenant
Scheme'. The proprietary rights were granted by the Department in favourof three sisters who were daughters of Sikandar, excluding Abdul Aziz,plaintiff-respondent. When the proprietary rights were conferred upon theparties vide Mutation No. 401 dated 17.11.1980, it was alleged that Mst.Suban and Mst. Ghulam Fatima who allegedly had entered into agreementto sell with Mst. Rehmat Bibi for consideration of Rs. 8000/, were notcompleting the sale, on which Mst. Rehmat Bibi filed the suit for specific
performance of the contract against her real sisters on 28.1.1981. During thependency of this suit, Abdul Aziz, respondent, moved an application to beimpleaded as a party on the ground that Mutation No. 401 dated 17.11.1980giving proprietary rights to three sisters, namely Mst. Rehmat Bibi, Mst.Suban and Mst. Ghulam Fatima excluding Abdul Aziz, is illegal because heis the son of Sikandar. This fact was denied by the three . sisters. The

2003                                 siddiq v. abdul Aziz                         Lah. 1017

(Abdul Shakoor Paracha, J.)

application was disallowed by the learned Civil Judge vide his order dated 13.12.1987. Contrary to this, Mst. Suban and Mst. Ghulam Fatima, who lost the case against the legal heirs of Mst. Rehmat Bibi, filed a conceding statement, in which they have admitted that Abdul Aziz plaintiff-respondent was the real son of Sikandar. Mst. Rehmat Bibi died during the proceedings, therefore, her sons and daughters/legal heirs, i.e. the petitioners did not admit the claim of Abdul Aziz, plaintiff-respondent. In this background it was obligatory upon Abdul Aziz, plaintiff, to prove his relationship with the petitioners and two sisters namely Ms?. Suban and Mst. Ghulam Fatima. To my mind, conceding statement of Mst.Suban and Mst. Ghulam Fatima cannot take the place of evidence. They did not appear in the witness-box to depose about the fact that Abdul Aziz was the son of Sikandar. Pleadings cannot take the place of evidence. The learned Additional District Judge was influenced with the fact that the conceding statement has been given by Mst. Suban and Mst.Ghulam Fatima in favour of Abdul Aziz. There was a reason for Ms?. Suban and Ghulam Fatima to make a conceding statement against the petitioners who were able to get a decree for specific performance against them when the application for impleading under Order I, Rule 10, CPC filed by Abdul Aziz in the suit for specific performance filed by Mst.Rehmat Bibi, against her real sisters Mst. Ghulam Fatima and Mst. Suban was dismissed vide order dated 13.12.1987. This matter could have not been opened by the learned Additional District Judge, because that order had become final as no appeal was filed by Abdul Aziz. Moreover, Mst. Suban cannot approbate and reprobate, because in the civil suit for specific performance they have denied that plaintiff Abdul Aziz was their brother.

10.   The case can be decided on the touchstone of Article 64 of theQanun-e-Shahadat Order, 1984, which reads as under:

"64. Opinion on relationship when relevant.--When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct,- as to the existence of such relationship, of any person, who as a member of the family or otherwise, has special means of knowledge on the subject, is arelevant fact:

Provided that such opinion shall not be sufficient to prove amarriage in proceedings under the Divorce Act 1869 (IV of 1869), orin prosecution under Section 494 or 495 of the Pakistan Penal Code(Act XLV of 1860).             •                                         .

11.  PW-1 Muhammad Shafi appeared in Court and stated that therewas no son of Sikandar. Thereafter he changed his statement and said thatAbdul Aziz was the son of Sikandar. Muhammad Shafi also stated thatSikandar used to live in Bootaywala in India with his sister, but he did notdisclose the name of the sister. Abdul Aziz plaintiff-respondent, contradictedMuhammad Shafi PW when he stated that he used to live in Mauza KalooArayan, Tehsil and District Ferozpur in Indian. PW-1 Muhammad Shafi did

6

1018 Lah.                        SrDDiQ v. abdul Aziz                                    PLJ

(Abdul Shakoor Paracha, J.)

not utter a single word about his relationship with Abdul Aziz or his father Sikandar. Rahim Bakhsh, PW, stated that the name of the husband of Mst. Rehmatay is Nabi Bakhsh. He is his (witness¹) real uncle. Much stress has been made by the learned counsel for the respondent-plaintiff that this witness Rahim Bakhsh is related to the parties, therefore, the suit has been rightly decreed by the learned Additional District Judge by accepting the appeal. This argument has no force because Rahim Bakhsh is related to Nabi Bakhsh, the husband of Mst. Rehmatay, daughter of Sikandar, but he has no where stated that he is related to Sikandar or Abdul Aziz. Qasim Ali, PW, isalso not related to the family or having any blood-relation with the parties. In this view of the matter, the testimony of Muhammad Shafi, Rahim Bakhsh and Qasim Ali cannot be accepted qua the relationship with plaintiff-respondent or his father Sikandar. While interpreting Article 64 of the Qanun-e-Shahadat Order, 1984, the Hon'ble Supreme Court has ruled in case reported as Khuda Bakhsh vs. Habib Ullah (1999 SCMR 1800) as under:

"The requirement of Article 64 of the Qanun-e-Shahadat Order of 1984, corresponding to Section 50 of the Repealed Evidence Act, is that when the Court .has to form an opinion as to relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship of any person, who as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact. In fact it is the opinion expressed by conduct, of any person who has special means of knowledge about the relationship, which is relevant.

12.        The learned Additional District Judge has not considered theimpact of documents Exh. D-l to Exh. D-4, i.e. the decree in favour of thelegal heirs of Mst. Rehmat Bibi for specific performance and the fact thatapplication for impleading Abdul Aziz as necessary party in the suit forspecific performance was  dismissed  and the  title  document  has  beenexecuted in favour of the petitioners, which has not been challenged by therespondent-plaintiff.

13.        The plaintiff-respondent Abdul Aziz was out of possession. His
suit for declaration under Section 42 of the Specific Relief Act withoutseeking possession was not maintainable. The learned Additional DistrictJudge completely misread the evidence and misinterpreted the provisions ofSection 42 of the Specific Relief Act, and thus wrongly accepted the appeal ofAbdul Aziz, respondent-plaintiff, which order is liable to be set aside.

14.        Resultantly, this revision petition is allowed, the judgment anddecree dated 5.9.1993 passe<} by the Additional District Judge, Samundri,Faisalabad is set aside and the judgment and decree passed by the CivilJudge, Faisalabad dated 26.2.1990 dismissing the suit of Abdul Aziz isrestored with costs. .

(A.A)                                                                               Revision accepted.