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Regular Second Appeal No. 6 of 1983, decided on 15th .January, 1983.

‑‑S. 50‑Opinion about paternity‑Relevancy of‑‑Appellant con tending evidence adduced to prove paternity of respondent irrelevant and inadmissible‑Witnesses disclosing source of information and stating to be very much present in marriage ceremony of spouses -No objection raised in trial Court as to relevancy of evidence relating to paternity‑Held, evidence of such witnesses not hit by S. 50.

Ch. Abdul Latif Ferozepuri for Appellants.

This Regular Second Appeal arises from the judgment and decree dated 11th December, 1982 of the Additional District Judge, Multan, reversing the judgment and decree of the Civil Judge, Kabirwala dated 23rd October, 1976, whereby, the suit for possession on the basis of inheritance filed by Mahboob Ahmad respondent/plaintiff against Rafiq Ahmad and Altaf Ahmad Khan appellants add others, was dismissed.

2. The facts leading up to this R. S. A. in brief are that the suit land was owned by. Rajab Khan. On his death, the mutation of inheritance was entered in the names of his two sons namely, Rafiq Ahmad and Altaf Ahmad, appellants herein and their mother Mst. Sat Bharai. Mahboob Ahmad Khan, respondent. No. 1 appeared before the Revenue Officer and posing himself as son of Rajab Khan deceased from his other wife Mst. Roshan Mai, claimed inheritance. During the mutation proceedings Mahboob Ahmad respondent No. 1 offered that in case Riaz Hussain and others, elderly persons of braderi take oath on the Holy Quran that he was not the son of Rajab Khan, he would withdraw his clam. The mutation proceedings indicate that since Riaz Hussain and others made statement on the Holy Qur'an that Mahboob Ahmad, respondent No. 1 was not the son of Rajab Kban, the respondent withdrew the claim and mutation of the inheritance of the land of Rajab Khan was attested in favour of the appellants and their mother Mst. Sat Bharai on 24th September, 1969. Mahboob Ahmad, respondent No. 1, however, filed appeal and revision before the Revenue Authorities and having remained unsuccessful, he, on 31st March, 1971 filed suit for possession on the basis of inheritance as son of Rajab Khan. The suit was contested by the appellants/defendants and others by raising preliminary objections and denying the averments of plaint. On the pleadings, the following issues were framed:‑

(1) Whether the suit has been correctly valued for the purposes of court‑fee and jurisdiction, if not what is correct valuation O. P. P.

(2) Whether the plaintiff is estopped from filing this suit O. P. D.

(3) Whether the suit is barred by res judicata O. P. D.

(4) Whether the plaintiff has locus standi to sue O. P. P.

(5) Whether the matter in dispute has already been decided on oath in 1967, if so, its effect O. P. D.

(6) Whether the pedigree‑table is correct O. P. P.

(7) Whether the plaintiff is son of Rajab Ali deceased O. P.P.

(8) Whether the inheritance mutation is illegal, void and it was got attested in collusion with Revenue Staff O. P. P.

(9) Whether Mutation No. 185 dated 21st July, 1970 was validly sanctioned in favour of defendants Nos. 4 to 5 O. P. D.

(10) Relief.

Issues Nos. 1, 2 and 3 were found in favour of respondent/plaintiff. Issue No. 4 was decided against the respondent/plaintiff holding that he had no locus standi. Issues Nos. 5 to 9 were decided against Mahboob Ahmad respondent/plaintiff. In view of its findings on Issues Nos. 4 to 9. the trial Court dismissed the suit Feeling aggrieved Mahboob Ahmad plaintiff/ respondent filed appeal which was entrusted to the learned Additional District Judge Multan, who wide his judgment and decree dated 11th December, 1981 reversed the judgment of the trial Court and decreed the suit as prayed for. Hence this. R. S. A:

3. Before me, the learned, counsel has challenged the finding of the learned Additional District Judge, on Issues Nos. 5 and 7 by, raising follow ing points :‑

(i) That the learned Additional District Judge has erred in acting upon the evidence adduced by respondent No. 1 to prove him son Rajah Khan inasmuch as the evidence being violative of section 50 of the Evidence Act, was irrelevant and inadmissible' in evidence : Furthermore, the respondent has failed to prove himself as son of Rajab Khan.

(ii) That the evidence adduced by the appellant/defendants to prove :hat Mahboob Abroad, respondent No. 1 was not the son of Rajab Khan has been illegally brushed aside and the reasons given by the Additional District Judge were far‑fetched and flimsy.

(iii) That the finding of the learned Additional District Judge on Issue No. 7 that respondent No. 1 was the son of Rajab Khan, is based on misreading of the evidence. The D. Ws. 4, 5, 6 and 8 who are the best witnesses of the relationship of respondent No. 1 with Rajab Khan have stated that respondent No. I is not the son of Rajab Khan.

(iv) That there is ample reliable evidence to the effect that during mutation proceedings respondent No, 1 had made offer that if Riaz Hussain and others take Oath that he was not the son of Rajab Khan, be would withdraw his claim and that when these persons actually took Oath on the Holy Quran saying that respon dent No. 1 was not the son of Rajab Khan, the respondent with drew his claim and as such he is now, estopped from claiming inheritance.

4. After hearing the learned counsel, I find that Issues Nos. 5 and 7 are the issues of the facts and the learned Additional District Judge was competent to believe or disbelieve the evidence adduced by the parties. Since there are allegations of misreading of the evidence, therefore, in the interest of justice, I propose to look into the copies of the statements of the witnesses and the documents attached with this appeal to satisfy myself whether the impugned judgment suffers from any misreading or not. The appellants have placed. on record the copies of the statements of P. Ws. 1 to 10 and D. Ws. 1 to 9 and copy of the mutation Exh. P. 5 i. e. Annexure 'F'. From this material I find that Sher Khan P. W. 2, Haibat Khan P. W. 4, Mst. Roshan Mai P. W. 5, Nasir Khan P. W. 6 and Muhammad Hayat P. W. 7 have stated that Mahboob Ahmad respondent is son of Rajab Khan. Mst. Roshan Mai P. W. 5 is admittedly the mother of Mahboob Ahmad. She, when examined as P. W. 5, has clearly stated that she was the legally wedded wife of Rajab Khan and Mahboob Ahmad was born from him. Haibat Khan P. W. 4 has stated that he was present when the Nikah of Mst. Rosban Mai P. W. 5 was performed with Rajab Khan ; that after about a year or 11 year of the marriage the respondent was born and that Rajab Khan had divorced Mst. Roshan Mai after 3 years of her marriage, P. W. 6 Nasir Khan has stated that Mst. Roshan Mai was married to Rajab Khan and the respondent was born, out of the wedlock. He has clearly stated that he was present in the marriage of Mst. Roshan Mai with Rajab Khan. Sher Khan P. W. 2 who is the present husband of Mst. Roshan Mai has stated that Mahboob Ahmad was the son of Mst. Roshan Mai from her first husband namely, Rajab Khan: I further find that Ghulam Jilani P. W. 1 has proved document Exh. . P. I extract from register of admission in school pertaining to year 1931 wherein Mahboob Ahmad has been recorded as son of Rajab Khan. To my mind, this is most important document having been prepared in the year 1931 when there was no litigation between the parties. As for the evidence adduced by the respondents/ defendants, to rebut Issue No. 7 and prove Issue No. 5, 1 find that D. W. 1 produced Mutation No. 103 attested on 24th September, 1969. D. W. 2, Bashir Ahmad, has proved the copy of Mutation No. 103, i.e. Exh. D. 1. He stated that Mahboob Ahmad had after having accepted the proceedings on oath, signed the mutation. D. W 3, Ghulam Rasul Patwari, has simply stated that he had entered the mutation of inheritance and was not present on 24th September, 1969 when the sane was attested. He has further stated that on 23rd September, 1969, the parties were not, present at the spot. D. W. 4 Taj Muhammad stated the: Rajah Khan was his real brother and that he had only oar wife namely, Mst. Sat Bharai. He sup ported the proceedings on oath pertaining to Mutation No. 103. D. W. 5 made the same statement as made by D. W. 4. D. W. 6 Falak Sher stated that Rajab Khan belongs to his braderi and he had only one wife Mst. Sat Bharat and that his Nikah was never performed with Mst. Roshan Mai. Nasim Gul Khan D. W. 7 stated that he was on visiting terms with Rajab Khan who was a partner in the bus services as well as Adda Manager and that respondent was not his son. Abdul Wahid D. W. 8 made the same statement.

5. After going through the judgment of the Additional District Judge in the light of documents produced by parties and their evidence, I find that the same does not suffer from any misreading. Thane is ample evidence to prove that respondent No. 1 is the son of Rajab Khan. Mst. Roshan Mai P. W. 5, the mother, is the best witness of the parentage of Mahboob Ahmad. It is an admitted fact that Mst. Roshan Mat gave birth to Mahboob Ahmad, he is not son of Sher Muhammad, the present husband of Mst. Roshan Mai ; 'the appellants and their witnesses have not stated as to who was the father of respondent No. 1 and that the document Exh. F. 1, copy from school register is a valuable document which fully supports the claim of respondent No. 1 that .he is son of Rajab Khan.

The learned counsel has failed to point out any misreading or non reading of the evidence ;there is thus no force in contention No. 3, raised by the learned counsel. As for contention No. 1, I find that since the witnesses have disclosed the source of their information and have stated that they were very much present in the marriage of Mst. Roshan Mai with Rajab Khan, their evidence is not hit by section 50 of the Evidence Act. Furthermore, no objection as to the relevancy of the evidence under section 50 of the Evidence Act was raised when the evidence of these witnesses was recorded. For these reasons, this contention also appears to be without substance. As for contention No. 2, I find that the learned Additional District Judge, has applied his mind and given sound reasons for disbelieving the negative evidence given by the D. Ws. Nos. 4, 5, 6 and 8, who to my mind have not been able to rebut the concrete evidence for respondent No. 1. As for contention No. 4, there is no doubt, that document Exh. P. 5, Annexure F' shows that respondent No. 1 had offered that in case Riaz Hussain, Muhammad Nawaz and Taj Din take oath that he was not the son of Rajab Khan, he would withdraw his claim and that those persons had actually taken oath on the Holy Qur'an to the effect that Mahboob Ahmad was not the son of Rajab Khan and thereon respondent No. I withdrew his claim. I, however, find that the learned Additional District Judge has given convincing reasons to brush aside this document. Furthermore, this document does not disclose whether this offer was made to the appellants herein or accepted by them and as such, it cannot be said that respondent No. 1 was estopped from claiming the inheritance. The learned Additional District Judge was quite competent to disbelieve the D Ws. and doubt the authenticity of mutation Exh. P. 5.

For what has been stated above, there being no merit in this appeal, the same is dismissed in limine.

K. M. A. Appeal dismissed.

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