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Civil Petition for Special Leave to Appeal No. 22 of 1970, decided on 15th April 1970.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 24th November 1969, in Regular Second Appeal No. 382 of 1963).

----S. 102‑Burden of proof Both parties leading evidence in support of their case‑Question of onus loses importance.

-- finding arrived at, by Courts below on question of paternity‑Finding, held, not to be re‑opened unless against evidence perverse and resulting in miscarriage of justice‑Constitution of Pakistan (1962), Art. 58(3).

Bashir Ahmad and another v. K. S. Agha Yaqub Shah and others P L D 1961 S C 609 and Federation of Pakistan through the General Manager, N. W. Railway, Lahore, v. Ali Ihsan P L D 1967 S C 249 rel.

Sh. Bashir Ahmad, Senior Advocate Supreme Court instructed by Abid Ali Buttar, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 15th April 1970.

‑This petition for special leave to appeal is directed against the order of the West Pakistan High Court, Lahore, in Regular Second Appeal No. 382 of 1969, decided on the 24th November 1969. By this order the appeal filed by the petitioner was dismissed.

The dispute between the parties is in respect of half share in 299 kanals of agricultural land in Chak No. 111/P. Tehsil and District Rahimyar Khan, left by deceased Noor Muhammad son of Sharaf Din, who died on the 19th March 1955, and was survived by a widow Mst. Fatima, his sister Mst. Maryam Bibi and an alleged daughter Mst. Rehmat Bibi respondent No. 1. On the death of the deceased, mutation entry No. 49 in respect of the property left by the deceased was entered on the 9th May 1955. It was sanctioned on the 10th May 1955, in favour of his alleged heirs, namely, widow Mst. Fatima 1/8th share, sister Mst. Maryam Bibi 3/8th share and daughter Mst. Rehmat Bibi 4/8th share. There is no dispute so far as the share of 1st. Fatima and Mst. Maryam Bibi is concerned. The dispute is about the share of Mst. Rehmat Bibi alleged daughter of Noor Muhammad son of Sharaf Din. On 30th October 1956, petitioner, who is the son of said Noor Muhammad's brother Fateh Muhammad, instituted a suit against the aforesaid three heirs. He alleged that Mst. Rehmat Bibi was not the daughter of said Noor Muhammad son of Sharaf Din but was really the daughter of his wife Mst. Fatima daughter of Karim Bakhsh from her previous husband known as Noor Muhammad son of Musa. He alleged that Mst. Rehmat Bibi respondent No.1 has by misrepresentation, obtained the mutation of deceased's property in her favour and prayed that he may be declared to be the owner with possession of 37 kanals and 8 marlas, as 1/4 share of the estate in question.

The suit was resisted by respondent No. 1. She pleaded that she was the real daughter of Noor Muhammad son of Sharaf Din. She further claimed that the petitioner was not in possession of the suit land and that he was estopped from challenging the mutation No. 49 as having participated in muta tion proceedings in which he was present. On the 28th January 1957, learned Senior Civil Judge, Rahimyar Khan framed issues in the case and onus was placed on the petitioner to prove that Rehmat Bibi respondent No. 1 was not the daughter of Noor Muhammad son of Sharaf Din. The petitioner challenged this in revision and on further review, the learned Senior Civil Judge, amended the issue and placed the onus on respondent No. 1. On the 30th November 1957, on further review the learned Court again shifted the onus to the petitioner. The matter was again taken in Civil Revision No. 277 of 1957 in the High Court of West Pakistan, Lahore, but it was dismissed. The onus to prove the paternity of respondent No. 1 eventually remained upon the petitioner.

At the trial, the petitioner produced 18 P. Ws. Respondent No. 1 produced 10 D. Ws. The learned Senior Civil Judge, after going through the evidence of the parties held that Mst. Rehmat Bibi respondent No. 1 was the daughter of Noor Muhammad son of Sharaf Din deceased. The order was also upheld by the learned District Judge, Rahimyar Khan, on the 1st April 1963. The matter was then taken to the High Court of West Pakistan, Lahore, in second appeal and a Division Bench of the West Pakistan High Court, by order dated the 24th November 1969, independently examined the evidence again as the learned District Judge had not applied his mind to the case and have concurred with the findings arrived at by the Courts below. The petitioner seeks permission to file an appeal against the said judgment.

In support of the petition Sh. Bashir Ahmad, learned counsel for the petitioner, has contended that onus has wrongly been placed on the petitioner. He has‑, further contended that the Courts below have unnecessarily raised adverse presumption against the petitioner's alleged participation in the mutation proceedings. He also contended that the learned Courts below have rejected the evidence adduced by the petitioner on illegal grounds. The contention of the learned counsel has not impressed us. The question of onus has no important bearing on the case because both the parties have led evidence in support of their case. In this circumstance, the learned Courts below were perfectly justified in holding that the question of onus has lost importance. The learned counsel for the petitioner has disputed, that the petitioner did not participate in the mutation proceedings. His contention is contrary to the revenue record. In our opinion, the Courts below were perfectly justified in holding that the petitioner participated in the mutation proceedings and as he did not object to the mutation in favour of respondent No. 1, it strengthens the case of the said respondent that she was legitimate daughter of deceased Noor Muhammad son of Sharaf Din.

We have gone through the evidence produced by the parties and are satisfied that the learned Courts below have taken into consideration the entire evidence produced by them. There being concurrent finding of fact on the question of paternity of respondent No. 1, it is not open to this Court to re‑open this finding unless the finding is against the evidence and perverse resulting in miscarriage of justice. The High Court itself has gone into the evidence deeply and has relied on the evidence adduced by respondent No. 1. In this connection, the High Court observed as under :‑

"We have carefully weighed this evidence and on the whole we find that the evidence adduced by respondent No. 1 is more weighty and credible. In the opinion of the learned trial Court, the statements of some of the defendants' witnesses outweigh the evidence adduced by the plaintiff and is reasonably con vincing. This proves beyond doubt that respondent No. 1 was the real daughter of Noor Muhammad son of Sharaf Din deceased. The finding receives strong support from the conduct of the plaintiff‑respondent who did not even raise any such objection on the very first opportunity at the time of the attestation of the mutation for the land in dispute before the Revenue Officer".

In the face of this clear finding we are not inclined to interfere with the concurrent finding of fact arrived at by the trial Court and the High Court. This view is; in accordance with the decisions of this Court in the cases of Bashir Ahmad and another v. K. S. Agha Yaqub Shah and others (P L D 1.961 S C 609) and. Federation of Pakistan through the General Manager, N. W. Railway, Lahore, v. Ali Ihsan (P L D 1967 S C 249). There is no force in the petition which is dismissed.

Petition dismissed.

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