2013 Y L R 1469
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
Mst. ALAM JAN and 5 others ---Appellants
Versus
BIBI ZAINAB and 13 others ---Respondents
Regular First Appeal No.44 of 2006, decided on 11th March, 2013.
Qanun -e-Shahadat (10 of 1984) ---
----Art. 64 ---Specific Relief Act (I of 1877), Ss.39, 42 & 54 ---Suit for declaration, cancellation
of document and injunction ---Proof of relationship ---Deceased spent a long life during which he
also solemnized marriage and joined service and his local cer tificate, identity card and the entire
documents pertaining to his employment proved that he was the real son of one "BM" ---
Consistent acknowledgment of parentage of the deceased by the plaintiffs and other inhabitants
of the vicinity had been proved ---"BM " during his life time acknowledged the deceased as his
legitimate son ---Neither any misreading or non -reading of evidence was noticed nor there was
misconstruction of the documents ---Appeal was dismissed.
Mst. Asma Naz v. Muhammad Younas Qureshi 2005 SCMR 401 rel.
Ejaz Ahmed Sawati for Appellants.
Riaz Ahmed for Respondents.
Date of hearing: 18th December, 2012.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Instant appeal is directed against the judgment
dated 31st Agust, 2006 passed by th e learned Senior Civil Judge, Pishin, whereby; the suit filed
by the appellants for Declaration, Permanent Injunction, Cancellation of Documents and Entries
was dismissed.
2. Facts relevant for disposal of the instant appeal are that the predecessor -in-interest of the
appellant/plaintiff No.1 namely Haji Amir Muhammad, Instituted a suit for Declaration,
Permanent Injunction, Cancellation of Documents and Entries against the respondents in the
Court of Senior Civil Judge, Pishin. During pendency of the sui t, the plaintiff No.1 Haji Amir
Muhammad died, as such; his legal heirs i.e. appellant Nos.1 -a to 1 -h were brought on record.
3. It was averred in the suit that the appellants/plaintiffs are successors of late Saleh
Muhammad, who was successor of late S aleh Muhammad. The latter was successor of one
Ghulam, who had married two wives. The predecessor -in-interest of the appellants namely Saleh
Muhammad had two brothers from second wife of Ghulam namely Naik Muhammad and Baz
Muhammad; whereas Ghulam had only one son from first wife namely Faiz Muhammad, who
was doing business in India, wherein he married a Hindu woman who embraced Islam. The said
Hindu, lady had a child from her first husband, who was also brought to Pishin by late Baz
Muhammad and named as A lam Khan (plaintiff No.1)/predecessor -in-interest of plaintiffs Nos.
1-a to 1 -h. Subsequently, late Baz Muhammad died issueless. After the death of wife of late Baz
Muhammad, Alam Khan lived with uncle of the appellants. Baz Muhammad was having
properties 8 kittats having Nos. 386 to 388, four pieces, 859 having 46 pieces 201 pieces, kittats
Nos.82/96, 79/91, 80/92, 81/93, 110/130, 130/155 and 159, Mohal rod Barshore, Mouza Malik
Yar, Tehsil and District Pishim. The plaintiffs being only legal heirs remaine d in possession and
had been utilizing the same by deriving benefits of the usufruct. Said Alam Khan had no concern
with the legacy, entitlement of the properties of late Baz Muhammad, but while performing
duties as Field Assistant, the former incorporated name of Baz Muhammad as his father in the
office record and also recorded name of Baz Muhammad as father, in Irrigation Office, though in
fact, Alam Khan was not son of late Baz Muhammad. Subsequently, it came to the knowledge of
the appellants that in No vember, 2002, respondents Nos. 1 to 9 obtained a 'Fatwa' and on the
basis of same, transferred the properties of late Baz Muhammad on the name of Alam Khan, vide
Mutation No. 443 dated 2nd December, 2002 and on the same date vide Mutation No. 444, the
properties were got transferred on their names. On gaining such knowledge, the respondents
Nos.1 to 9 approached the Assistant Collector as well as Settlement Officer for revocation of
'Sharai Fatwa' but all in vain, hence the suit.
4. The suit was contested by the respondents/defendants Nos. 1 to 9 as well as by the
respondent No.14, by way of filing written statements, whereby, besides raising objection
regarding limitation, the claim of the plaintiffs was repudiated on merits as well. The learned
trial Cou rt out of the pleadings of the parties framed following issues: --
(1) Whether the suit is not maintainable in view of preliminary legal objections C, E & G of
the written statement of defendants Nos. 1 to 9?
(2) Whether Alam Khan was not real son of la te Baz Muhammad?
(3) Whether the Intiqal Nos.443 and 444 are illegal ones ?
(4) Whether the plaintiffs are entitled to the relief claimed for ?
(5) Relief?
5. Thereafter, the parties were directed to adduce their evidence, whereupon, the plaintiff s
produced P.W.1 Atta Muhammad, P.W.2 Haji Qahir, P.W.3 Haji Gul Baran, P.W.4 Abdul
Karim, P.W.5 Muhammad Ali, P.W.6 Fahim Ahmed, P.W.7 Ahmed Jan Patwari and P.W.8.
Moulvi Abdul Samad, whereas in rebuttal, the defendants examined DW -1 Haji Akhtar
Muhammad, DW-2 Abdul Qaisar, DW -3 Muhammad Yousaf, DW -4 Zafar, DW -5 Abdul
Qayyum and attorney of defendants Abdul Wali also got recorded his statement.
6. The learned trial Court after hearing the parties and evaluating the evidence dismissed the
suit, hence the instant appeal.
7. The learned counsel for the appellants submitted that the trial Court has misread the
evidence, misconstrued the documents and has misappreciated the facts of the case. The trial
Court erred in law by rejecting the coherent and consist ent evidence produced by the plaintiff's/
appellants. The predecessor -in-interest of respondents in his entire life did not claim to be the
legal heir of Baz Muhammad nor for that matter, he claimed any proprietary after the death of
Baz Muhammad, as he wa s well aware that he is not the son of Baz Muhammad. Plaintiffs have
produced overwhelming evidence and have been able to prove their case but the learned trial
Court by misreading the evidence illegally rejected their stance.
Learned counsel for the re spondents vehemently opposed the arguments by submitting
that an illogical suit was filed by the plaintiffs, which was rightly dismissed by the trial Court. In
fact, the predecessor -in-interest of the respondents was the son of Baz Muhammad and
throughout the life of Baz Muhammad, he was known with such parentage. The plaintiffs took a
cooked plea regarding which they utterly failed to produce a single document or other proof,
whereas stance of respondents was supported by oral as well as documentary eviden ce, which
was rightly accepted by the trial Court. The documents on the basis whereof, the predecessor -in-
interest of defendant/ respondents was employed in service, leaves no room for doubt that
predecessor -in-interest of respondents was the real son of B az Muhammad.
8. We have considered the arguments advanced by the learned counsel for parties and have
perused the record of the case. The perusal of the record reveals that in order to reach at a just
and fair conclusion, the learned trial Court framed a s many as five issues. So far issue No.1 is
concerned, the trial Court after analyzing the relevant law rightly concluded that the suit is not
hit by preliminary objections raised by the respondents to this effect, are of no avail, as such; the
findings on this issue are not open to any exception. However, the crucial issue is issue No.2.
The evidence produced by the appellants is not sufficient to prove their claim or discharge the
burden of this issue. Admittedly, Muhammad Alam was born in India and to pr ove the fact that
he was the son of first husband of Hindu lady, there is not an iota of evidence either in the shape
of oral or document. All the P.Ws. even did not state that at anytime, Baz Muhammad, in his life
has ever stated that Muhammad Alam is not his son nor for that matter is there any evidence to
support the plaintiffs' contention. According to the plaintiffs, Baz Muhammad returned from
India after solemnizing his marriage and Muhammad Alam was with them. The father of
Muhammad Alam was Hindu bu t they failed to produce a single documentary evidence or even
specify the name of Hindu the alleged father of Muhammad Alam. In such circumstances, the
trial Court rightly arrived at a conclusion that the plaintiffs failed to prove issue No.2. On the
contrary, Muhammad Alam spent a long life during which he also solemnized marriage and
appointed as Field Assistant in Civil Aviation Authority. His local certificate, identity card and
the entire documents pertaining to his employment prove that he was the r eal son of Baz
Muhammad. Under such circumstances, we do not find any irregularity qua the findings of issue
No.2. The consistent acknowledgement of percentage of Muhammad Alam by the plaintiffs and
other inhabitants of the vicinity has been proved above t he board. Furthermore, during his
lifetime throughout, Baz Muhammad acknowledged Muhammad Alam as his legitimate son,
therefore, it cannot be said that Muhammad Alam is not son of Baz Muhammad. By holding the
view, we are fortified by the dictum laid down in the judgment reported in 2005 SCMR 401
(Mst. Asma Naz v. Muhammad Younas Qureshi relevant at page 407), wherein it has been held
as under: --
"The authenticity of above document has not been doubted or questioned in any manner
by the respondent/defen dant thus on the basis whereof inescapable conclusion can be drawn that
respondent -defendant never denied his paternity to petitioner/plaintiff and always treated her to
be his daughter for all intents and purposes. In this regard one of the most important document
amongst the noted hereinabove is the nomination by the respondent/ defendant in favour of
petitioner/ plaintiff in terms of section 2 of the Central Employees Benevolent Fund and Group
Insurance Act, 1969, out of which in respect of 25% of Benevo lent Grant and 25% of Insurance
amount, petitioner/ plaintiff has been nominated being his daughter. This document leads to
conclusion that respondent/ defendant accepted her to be one of his legal heirs in his legacy,
benefit of which would be drawn by th e petitioner/plaintiff Mst. Rashida Khatoon and Mst.
Maryam Bibi, being daughter, wife and mother of respondent/ defendant, respectively, after his
death. It may be noted that according to Mahomedan Law right of inheritance is extended to a
heir whose leg itimate status is accepted, otherwise, such right neither can be extended nor
acquired. It is also a settled proposition of law that the legitimate or illegitimate status of a
person is established in view of the proof of birth but in a case where such pro of is not coming
forward, then one of the rule of acknowledg -ment by an acknowledger, in respect of status of a
person, a conclusive presumption can he drawn that he/she is his/her legitimate child and once
such status is confirmed, it cannot be destroyed by any subsequent act of the acknowledger or of
any one claiming through him, as it has been held in the case of Muhammad Alladad Khan and
another v. Muhammad Ismail Khan and others 1888 ILR Vol. X Allah Abad 289. In this report
another important question was also highlighted i.e. "if a man acknowledges another to be his
son and other be nothing, which obviously renders it impossible that such relation should exist
between them, the parentage will be established." Reference may also be made to the case of
Muhammad Azmat Ali Khan v. Lalli Begum and others (I.L.R Vol. IX page 8) where their
lordships of Privy Council observed that "according to Mahomedan Law the acknowledgment
and recognition of children by a father as his sons gives them the status of sons, capable of
inheriting as legitimate sons. Such acknowledgment may be in the express or implied, in the
latter case the inference from the acts of father must depend upon the circumstances of each
particular case." Applying the principle highlighted in this judgment on the case in hand in the
light of documentary evidence, noted hereinabove , it can safely be held that petitioner/plaintiff
had always been treated/acknowledged by the respondent/defendant as his daughter and she
was also married by him, exe rcising his right of paternity in 1985 and thereafter as well up to
1991 when unfortunate episode of initiating criminal pro -ceedings against him, commenced at
the behest of petitioner/plaintiff. It seems important to trace the reason which created a gulf
between petitioner/ plaintiff and respondent/defendant after about 5/ 6 years from former's
marriage."
9. As far as issues Nos. 3, 4 and 5 are concerned, the same are interlinked and to the same
effect. Since the landed property of Baz Muhammad has been muated/transferred in the name of
respondents on account of heritage, as Muhammad Alam is legally entitled to inherit the property
of Baz Muhammad being his son, therefore, no exception can be taken to the legality and validity
of Intiqal Nos. 443 and 444. So far revocation of 'Fatwa' is concerned, the revocation is legality
not warranted, because the evidence produced before the trial Court by the appellants/plaintiffs
was not of such standard enabling the trial Court to arrive at a different conclusion an d form
contrary opinion. The evidence produced by the plaintiffs is not sufficient to constitute basis for
decrecing the suit. Thus, even if at all, the 'Fatwa' is revoked, the parentage of Muhammad Alam
canot be changed, denied and disputed in presence o f documentary evidence and in absence of
any contrary documentary and ocular evidence. Under such circumstances it can safely be
concluded that the trial Court after proper appraisal of material available on record rightly
resolved these issues. There is n either any misreading or non -reading of evidence not there is
misconstruction of documents nor for that matter, the facts of the case have been misappreciated.
In the light of above discussion, the appeal has no merits, which is dismissed with no
order as to costs. Decree sheet be drawn up.
AG/33/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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