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Regular Second Appeal No. 49 of 1978, decided on 10th November, 1986.

‑‑‑S. 100‑‑Second appeal‑‑Concurrent findings of fact‑‑Concurrent findings of fact arrived at by two Courts below, held, could not be easily thrown open to discussion in second appeal.

‑‑‑Ss. 11 & 100‑‑Second appeal, maintainability of‑‑Principle of res judicata‑‑Subsequent second appeal, arising out of consolidated judgment passed in first appeal, held, would proceed and would not be barred by res judicata.

Mt. Lachhmi v. Mt. Bhulli A I R 1927 Lah. 289 ref.

‑‑‑Art. 78‑‑Admissibility of document‑‑Objection to‑‑Entry made in register of petition‑writer, having not been supported by any other documentary evidence, held, was rightly considered to be inadequate‑ Such entry needs considerable corroboration and. without such corroboration same could not be considered much reliable.

‑‑‑S. 7‑‑Divorce‑‑Proof‑‑Neither any witness in whose presence alleged three divorces were pronounced upon lady was present nor any formal deed of Talaqnama was scribed‑‑No indication of any oral or written notice of divorce‑‑Divorce alleged to have been pronounced upon lady, held, was not adequately proved in circumstances‑‑Mere entry of alleged divorce made by petition‑writer in his register who did not know parties personally and such entry made at behest of some unidentified person, would not prove divorce.

‑‑‑S. 100‑‑Second appeal‑‑Appraisal of evidence‑‑Credibility of oral evidence of witnesses having been carefully judged by Courts below in light of conduct and character of such witnesses, no different opinion, held, could be entertained in second appeal.

Muhammad Anwar Bhinder for Appellants.

Syed Sajjad Raza Jaffery with Fateh Ali Cheema for Respondents.

Dates of hearing: 4th June and 22nd October, 1986.

This regular second appeal arises from the judgment/decree dated the 8th of November, 1977 of the learned Additional District Judge‑II Gujranwala.

2. The dispute related to the inheritance of one Hakim who, according to the respondents' version, took three wives, namely, Zeenat Bibi, Hussain Bibi and Raisham Bibi. The present appellants are his progeny through the last mentioned lady and their version in one of the two suits was that he had divorced Mst. Zeenat Bibi before his death while he never married Mst. Hussain Bibi. The latter controverted the appellants' claim not only in their own suit but also preferred a separate suit by herself affirming to have been left as a widow by the deceased. Thus, the two suits were consolidated and were disposed of by single judgment of course, followed by two separate decrees. The appellants suit was dismissed whereas Mst. Hussain Bibi's suit was decreed. Two appeals were preferred but Regular Second Appeal No. 50 of 1978 brought by the present appellants against the decree passed in favour of Mst. Hussain Bibi in her own suit was dismissed in limine. Obviously its effect was that the decision holding her to be the widow of the deceased had become final for all purposes.

3. The present Regular Second Appeal evidently arises from the appellants' own suit. Although there too the status of Mst. Hussain Bibi was determined as a widow of the deceased, yet it may not be now possible for them to assail it because of dismissal of the other appeal brought by themselves. The only question left for determination in the present appeal obviously was if Mst. Zeenat Bibi was divorced by the deceased before his death. The concurrent finding by the two courts below was against the appellants. It was a stark question of fact which may not be easily thrown open to discussion in the second appeal. However, Mr. Muhammad Anwar Bhinder for the appellants took pains to canvass that the evidence on record had been misread. Relying upon the Nikahnama (Exh.D.3) dated the 12th of February, 1956 and an entry Exh.P.l dated the 27th of February, 1958 made in the register of petition‑writer Faizul Haq P . W . 5 , he seriously contended that the marriage between the spouses stood terminated during the lifetime of the deceased who expired in July, 1966. He stressed that there was no reason to ignore the testimony of the petition‑writer P.W.5 who was the scribe of the entry and also that of P.Ws.2 and 3 who consistently claimed to have been present at the time of pronouncement of the Talaq upon the lady.

4. Mr. Fateh Ali Cheema, Advocate at the outset contended that the present appeal was barred by res judicata because of dismissal of the other one but a complete reply to this contention was found in Mst. Lachhmi v. Mst. Bhulli A I R 1927 Lah. 289 wherein by a majority decision res judicata was held inapplicable to an appeal arising out of a consolidated judgment. Personally I am inclined to agree with the objection because in the other suit already entitlement of Mst. Zeenat Bibi as a widow stands determined and the same question may not be broached once again in the present appeal. There may be no explanation as to the contrariety arising out of the two contradictory judgments precisely on the same point. This was the minority view held by Dalip Singh, J, in the precedent case but I have no option except to follow the other view being of on is very Court. Consequently the appeal shall proceed. It is not barred by res judicata.

5. The appeal was assailed with equal emphasis in regard to the impugned finding being on a point of fact. However, in order to satisfy myself I have perused the entire evidence. I am unable to find if the appreciation thereof as made by the Courts below was in any way lacking. The so‑called Talaq pronounced upon Mst. Zeenat Bibi was not adequately proved. The entry EXh.P.l, dated the 27th of February. 1958 made in the register of petition‑writer, having not been supported by any other documentary evidence, was rightly considered to be C inadequate. By their own class, such entries need considerable corroboration, and without the same may not be much reliable. It recapitulates that the three Talaqs were pronounced upon the lady in presence of some witnesses. There is no mention who those witnesses were, nor does it point out if any formal deed was scribed. Equally there was no indication if the lady had been given any oral or written I notice about it. Further, it bears out that the period of coverture of the spouses was about three years. This was in contrast to the appellants' version that the coverture between the two lasted for two years that is from the 12th of February, 1956 (Exh. D.3) to the 27th of February, 1958 (Exh.P.l). Reducing this coverture by the appellants in their verbal testimony appeared purposeful because in the meantime two daughters Nazir Bibi and Khurshid Bibi were born to them. The date of birth of the former was the 28th of April, 1959 vide Exh . D . 4 . If the coverture starting from the 12th of February, 1956 extended up to three years, the birth of this daughter becomes legitimate. Indeed there is no escape from this view because the date of marriage was not challenged and the same suffices to belie the date of termination as l claimed by the appellants. Orally speaking, the petition‑writer Faizul Haq P.W.5 had to admit that he did not know the parties personally and was made to scribe the entry at the behest of some persons calling upon him. Unless the identity of the person asking for such an entry to be made was established, it was not safe to draw a conclusion I against the lady. If no formal stereotyped Talaqnama was intended to be written through this petition‑writer, there was no idea in calling, upon him to make a crude entry in his register of an event which otherwise was being performed orally. It needs no reminder to say that petition‑writers are approached when formal deeds are intended to be accomplished. In this case admittedly no Talaqnama was produced or even relied upon and its absence would make the very process somewhat sceptic.

6. The intrinsic worth of the oral evidence proceeding from the mouths of Abdus Sattar P.W.2 and Ibrahim P.W.3 was held by the two E Courts to be not of high order. This was their appreciation about their credibility. No different opinion may be entertained in the second appeal, for appraisal of evidence is not permitted.

7. Mr. Bhinder argued that the divorce took effect even without notice to the lady. This is true. There is no cavil with it but what has to be seen is if at all there was such divorce. The appellants went to the extent of denying the very marriage of the third wife Mst. Hussain Bibi with the deceased. This was a finding having become final against them in the other appeal and indeed seriously reflects upon the veracity of their present claim of denying Mst. Zeenat Bibi to be his widow.

8. There is no substance in the appeal and the same is dismissed with costs throughout.

H.B.T./605/L Appeal dismissed.

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