AMINUL HAQ Versus ABDUL WASAI

Aminul Haq petitioner/plaintiff filed two separate suits Vos.23/1 on 10‑1‑1988 and 40/1 on 7‑2‑1988) against Abdul Bais and others and Abdul Wasih and others respondents/defendants in the Court of learned Additional Civil Judge, Swabi seeking declaration and perpetual injunction with regard to property mentioned in the heading of the plaints. Both the suits were resisted by the respondents/defendants by filing written statements. The learned trial Court after framing issues, recording pro and contra evidence of the parties, decreed both the suits in favour of the petitioner/plaintiff vide judgments and decrees dated 18‑3‑1990. Feeling aggrieved with the said judgments and decrees, the respondents/defendants filed two separate appeals (Nos.45/13 and 46/1 of 1990) in the Court of learned Additional District Judge, Swabi. The said appeals were allowed vide judgments and decrees dated 25‑11‑1990 and the suits were dismissed. Being aggrieved with the appellate judgments and decrees, the petitioners/plaintiff filed revision petitions (Nos.4 and 5 of 1991) which were accepted by this Court, the judgments and decrees passed by the learned Courts below were set aside and the cases were remanded back to the learned trial Court for decision afresh in accordance with law. Parties were, however, allowed to produce evidence vide judgments and decrees, dated 26‑6‑1993. Being not contented with the judgments and decrees passed by this Court, the petitioner/plaintiff filed two petitions (C.P.S. No.246‑P and 247‑P of 1993) before the august Supreme Court of Pakistan. The learned counsel for the parties appearing before the august Supreme Court of Pakistan agreed that the cases be decided by the High Court on merits on the basis of evidence already adduced by the parties, therefore, the said petitions were converted into appeals and by allowing the same, cases were remanded back to this Court for decision on merits according to law vide judgment and order, dated 24‑5‑1994. The respondents/defendants being not satisfied with the said judgment/order, filed two Review Petitions (Nos.7‑P of 1994 and 4‑P of 1997) before the august Supreme Court of Pakistan. The said review petitions were however, dismissed for non-prosecution by the august Supreme Court of Pakistan on 22‑5‑1996, Later on, with the consent of learned counsel, restoration applications (C.M.As. Nos.66‑P and 67‑P of 1996) were allowed and vide order dated 21‑4‑1997 the review petitions were restored. Accordingly, the earlier judgment/order passed by the august Supreme Court of Pakistan dated 24‑5‑1994 was modified to the extent that this Court would provide an opportunity to the appellants for production of documentary evidence in rebuttal of the additional evidence recorded by the learned trial Court. Such evidence i.e. the evidence recorded by the learned trial Court per order of remand of this Court and the evidence which would be produced by the appellants in pursuance of the order passed by the august Supreme Court of Pakistan in review petitions be taken into consideration and then the revision petitions (Nos.4 and 5 of 1991) be decided on merits.

2. Since the subject‑matters, parties thereto and questions of law involved in both the revision petitions are similar, therefore, I shall decide them through this single judgment.

3. Mian Muhammad Yunas Shah, the learned counsel representing the petitioner/plaintiff in both the cases, argued that Aminul Haq petitioner had married with Mst. Rafia daughter of Abdul Qayyum Bacha and out of the wedlock one son, namely, Saeedul Haq was born but Mst. Rafia and her son both died. Since the petitioner was the sole heir, therefore, he inherited her entire share which she had inherited from her father Abdul Qayyum Bacha. In support of his argument the petitioner/plaintiff produced death certificate of Mst. Rafia (Exh.P.W.1/1) shows, that she was the wife of petitioner/plaintiff which certificate was believed to be correct by the learned trial Court but the learned Appellate Court misdirected itself in saying that Mst. Rafia was not the daughter of Abdul Qayyum Bacha.

4. It was also argued that Mst. Rafia in her life time had sold some property situated at Mauza Boka vide Mutation No.286 attested on 29‑3‑1952 (Exh.P.W.3/3) (also exhibited as Exh.P.W.6/1) and after her death a dispute between the parties arose with regard to said property. Aminul Haq petitioner had given a statement that his wife Mst. Rafia had rightly sold the property in question. In Column No.3 of said mutation mentioned above, she had been shown as the daughter of Abdul Qayyum Bacha. On the back of said mutation, Abdul Hakim brother of Mst. Rafia had identified her.

5. It was also argued that there is another document available on record in the shape of a plaint (tilted Mst. Bibi Zahida v. Abdul Haseeb and others) filed by Mst. Bibi Zahida who was sister of Mst. Rafia (Exh.P.W.6/3). In para. 4 of the said plaint she had stated that Mst. Rafia was her sister, was married with Aminul Haq petitioner/plaintiff and died on 29‑9‑1943. She made Aminul Haq petitioner as defendant No. 12 in the said suit, who had inherited the share of Mst. Rafia, hence the learned Additional District Judge had failed to appreciate the evidence available on record.

6. It was further argued that after the remand, petitioner/plaintiff examined Habibul Haq, Miskin Sarwar and Waliullah whose additional evidence was recorded but the respondents/defendants failed to produce any evidence in rebuttal, therefore, the case of the petitioner/plaintiff stands proved on the basis of said evidence. Reliance in this regard is placed on 1987 SCMR 66, 1995 PLJ SC 26, PLD 1998 SC 187, PLD 1981 SC 105.

7. On the other hand, Mr. Abdul Aziz Kundi, the learned counsel representing respondents Nos.1 to 6/defendants in both the revision petitions, argued that though Aminul Haq petitioner/plaintiff claimed to be the sole heir of Mst. Rafia but he did not mention in his plaint the date of marriage with Mst. Rafia, the date of death of Mst. Rafia and the date of death of her son, namely, Saeedul Haq. The only death certificate Exh.P.W.1/1 was produced by the petitioner/plaintiff in his evidence according to which Mst. Rafia had died in the year 1943, but this date was contradicted by Hafizul Haq (P.W.7). This witness was examined by the petitioner/plaintiff who stated that Mst. Rafia died somewhere in the year 1945 and her son Aminul Haq died after seven months of the death of her mother. Aminul Haq petitioner/plaintiff was examined as P.W.6 who in his statement before the Court stated that Saeedul Haq was born in 1943 and after 5/6 months of his birth, his mother Mst. Rafia died. Later on, Saeedul Haq also died. Likewise, Miskin Sarwar (A.P.W.1) stated that Saeedul Haq son of Mst. Rafia died after two months of the death of his mother. Habibul Haq (A.P.W.2) also stated that the son, namely, Saeedul Haq died after seven months of the death of his mother Mst. Rafia. There were contradictions in all the statements of the P.Ws. examined by the petitioner/plaintiff with regard to the dates of death of Mst. Rafia and her son Saeedul Haq.

8. It was also argued that the learned trial Court had appointed Local Commissioner to inspect the tomb‑stone affixed on the grave of Mst. Rafia whose report is also made available on record. Moreover, Mst. Rafiq was not married with Aminul Haq petitioner/plaintiff and the marriage between the spouses was not proved by the petitioner by examining any person. Habibul Haq (A.P.W.) in cross‑examination admitted that Abdul Qayyum Bacha had four daughters, one of them was married with Abdul Rabb and the second with Abdul Fatah whereas the third was married in village Mian Dheri and the fourth daughter remained unmarried.

9. It was also argued that Mutation No.286 (Exh.P.6/1) attested on 29‑3‑1952 could not be relied upon in support of the claim of the petitioner/plaintiff because the said mutation was entered in the Revenue Record on 10‑4‑1950. One Abdul Shakoor Khan was appointed as Local Commissioner on 13‑5‑1951 who recorded the statement of Abdul Hakim brother of Mst. Rafia, on the basis of which the said mutation was attested on 29‑3‑1952. If Mst. Rafia as per death certificate Exh.P.W.1/1 died in the year, 1943 then how the sale transaction was entered in the Revenue Record in the year, 1950.

10. It was also argued that the learned trial Court failed to appreciate the evidence on record but the learned Appellate Court had rightly appreciated the same. Reliance has been placed on Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCMR 958, Mst. Balqees Begum and another v. Mst. Khan Bibi and others 2003 MLD (Lahore) 185 and Allah Rakha and another v. Muhammad Arif 2003 MLD (Lahore) 970.

10‑A. I have heard the learned counsel for the parties and perused the record of the case.

11. In Suit No.40/1 out of which Civil Revision No.4 of 1991 has arisen, the petitioner/plaintiff examined Khalilur Rehman, Superintendent Vaccination, D.H.O. Mardan as P.W.1 who produced death certificate of Mst. Rafia which was placed on record as Exh.P.W.1/1. Raees Khan Record‑keeper Cooperative (P.W.2) did not place any record on file. Abdul Qayyum Khan A.D.K., Mardan was examined as P.W.3. He placed on record copies of Mutation No.8464 attested on 9‑2‑1976, Mutation No.9790 attested on 30‑6‑1962 and Mutation No.286 attested on 29‑3‑1952 (Exh.P.W.3/1 to Exh.P.W.3/3). Said Wali appeared as P.W.4 who stated that he did not sign any mutation in favour/against the defendants. Shah Qadar Patwari Halqa was examined as P.W.5 who placed on record Jambandis for the years, 1957‑58 and 1981‑82 (Exh.P.W.1/1 and Exh.P.W.1/2). He also produced Jamabandi for the year; 1973‑74 Exh.P.W.1/3. Abdul Wadood Office Qanungo, Swabi was examined as P.W.5. He placed on record photo copies of Khatooni Ishtimal Exh. P. W.5/1, Firist‑e‑Haqdaran EXh.P.W.5/2, registered scheme Exh.P.W.5/3., Khatooni Paymaish Exh.P.W.5/4 and Scheme Confirmation Exh.P.W.5/5. Aminul Haq petitioner/plaintiff examined himself as P.W.6 who placed on record copy of sale mutation in respect of property situated in village Boka Exh.P.W.6/1, copy of gift Mutation Exh.P.W.6/2 and attested copy of plaint in Suit No. 210/1 Exh.P.W.6/3. Hafizul Haq was examined as P.W. who stated that Aminul Haq plaintiff was his cousin, Mst. Rafia daughter of Abdul Qayyum Bacha was the wife of plaintiff and she had given birth of a son, namely, Saeedul Haq who died seven months after the death of Mst. Rafia.

12. In rebuttal, Abdul Qadoos was examined as D. W.1 who placed on record inheritance mutation of Mst. Rafia (Exh.D.W.1/1), Wakalat Nama Exh.D.W.1/2 and Mutation No.6344 Exh.D.W.1/3. Ghulam Qadar appeared as D. W.2. He stated that Abdul Hakim Bacha had four sisters, one of them was married in Mian Dheri with Abdul Mabood Bacha, the second was married in Mauza Barn Khel with Abdul Fateh and the remaining two were unmarried. The evidence of the defendants was thus closed.

13. In Suit No.23/1 out of which Civil Revision No.5/91 has arisen, Khalilur Rehman, Superintendent Vaccination, D.H.O., Mardan was examined as P. W.1 who placed on record death certificate of Mst. Rafia EXh.P.W.1/1. Abdul Qayyum Khan, A.D.K. Mardan appeared as P.W.2. He placed on record copies of Mutation No.8464 attested on 9‑2‑1976, Mutation No.9790 attested on 30‑6‑1962 and Mutation No.286 attested on 29‑3‑1952 (Exh.P.W.2/1 to Exh.P.W.2/3). Faiz Rasool, Patwari Halqa was examined as P.W.3 who exhibited Jamabandis for the years 1938‑39 and 1942‑43 (Exh.P.W.3/1 to Exh. P. W.3/2). Jamabandis for the years 1949-50 to 1977‑78 (Exh.P.W.3/3 to Exh.P.W.3/9). Fard Jamabandi for the year 1981‑82 Exh.P.W.3/10 whereas Jamabandi with regard to the remaining area was placed on record as Exh.P.W.3/10‑B. Aminul Haq plaintiff himself appeared as P. W.4 whereas Hafizul Haq was examined as P. W.5. In rebuttal, Abdul Qadoos appeared as D.W.1 who placed on record inheritance mutation of Mst. Rafia as Exh.D.W.1/1, copy of Wakalat Nama as Exh.D.W.1/2 and copy of Mutation No. 6344 as Exh.D.W.1/3. Ghulam Qadar also appeared in this case as D.W.2.

14. After the remand of the case from the august Supreme Court of Pakistan, Miskin Sarwar was examined as A.P.W.1 whereas Haibul Haq appeared as A.P.W.2 the learned counsel representing the defendants made a statement before the learned trial Court that he did not wish to produce any further evidence and would rely upon the evidence already recorded by the Court.

15. The question that requires determination in this case is as to whether Aminul Haq petitioner/plaintiff had married with Mst. Rafia daughter of Abdul Qayyum Bacha and out of the said wedlock his son, namely, Saeedul Haq was born and whether after the death of Mst. Rafia and her son Saeedul Haq, her entire estate which she inherited from her father Abdul Qayyum Bacha, would go to Aminul Haq petitioner/plaintiff or not. Answer to this question is that Aminul Haq petitioner/plaintiff had married with Mst. Rafia who was the daughter of Abdul Qayyum Bacha and out of the said wedlock Saeedul Haq was born. Since Mst. Rafia and her son died, therefore, the property left by them would devolve upon the petitioner/plaintiff.

16. The petitioner/plaintiff has successfully proved that he had married with Mst. Rafia daughter of Abdul Qayyum Bacha. This fact was not only stated by him in his Court statement when he appeared as P.W.6 but the same was also supported by Hafizul Haq (P.W.7). Neither Aminal Haq (P.W.6) nor Hafizul Haq (P.W.7) was cross‑examined with regard to the marriage of petitioner/plaintiff with Mst. Rafia. Not a single question was put either to P.W.6 or P.W.7 regarding parentage of Mst. Rafia. The statement of Hafizul Haq (P.W.7) in this regard is worth perusal. The same is reproduced alongwith cross‑examination for convenience:‑‑

"Aminul Haq plaintiff is my cousin. Mst. Rafia daughter of Bacha Sahib Abdul Qayyum was wife of the plaintiff. Mst. Rafia had given birth to child, namely, Saeedul Haq from the plaintiff. Mst. Rafia had died in 1943. And Saeedul Haq had died about 7 months after the death of Mst. Rafia. x x x x x We had not made any entry about the death/birth of Saeedul Haq. It is incorrect to suggest that being the cousin of the plaintiff, I am deposing from him on engagement statement is false."

As mentioned above, neither P.W.6 nor P.W.7 was cross -examined with regard to the parentage of Mst. Rafia. It is by now settled that when a witness is not cross‑examined on the facts and his statement remained unrebutted and unquestioned, such statement can be taken as correct. Wisdom in this regard has been drawn from:‑‑

(1) Mst. Noor Jehan Begum v. Syed Mujtaba Naqvi 1991 SCMR 2300, (2) Mst. Zargoon and others v. Mst. Shadana and others 2002 CLC 1539, (3) Khanzada Inamullah v. Mst. Zakia Qutab and others PLD 1998 Pesh. 52, (4) Haji Din Muhammad through L.Rs. v. Mst. Hajra Bibi PLD 2002 Pesh. 21 and (5) Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700.

17. After the remand of cases by the august Supreme Court of Pakistan, the petitioner/plaintiff examined Waliullah as R.P.W.I, Miskin Sarwar as R.P.W.2 and Habibul Haq as R.P.W.3. Miskin Sarwar (A. P. W.2) was the neighbour of petitioner/plaintiff. He stated that the first wife of plaintiff/petitioner was the sister of Abdul Hakam and Abdul Raqib Bacha and she tad given birth to a son from the plaintiff. The son of plaintiff had died about two months after the death of his mother. This witness was ready to take oath that whatever he stated was correct. In cross‑examination, he gave the details that Abdul Hakam Bacha had four sisters, Mst. Rafia was of his age and he had seen the groom of plaintiff with respect to Mst. Rafia. He also gave the details of the marriage of sisters of Abdul Hakam Bacha. Habibul Haq (A.P.W.2) stated that he was the first cousins of the plaintiff and Abdul Qayyum Bacha was his step‑uncle. One of the sisters of Abdul Raqib and Abdul Hakam Bacha was married to the plaintiff/petitioner who had given birth to a son who also died about 7 months after the death of his mother. This witness was ready to take oath on Holy Qura'n about the facts stated by him. In cross‑examination, he stated that Mst. Raf7a was the wife of plaintiff and there were 3 other daughters of Abdul Qayyum Bacha. He had not seen the other daughters except the one who was married to the plaintiff. He gave the details of marriages of the others sisters of Abdul Hakam Bacha. The third witness, namely, Waliullah was not cross -examined. Aminul Haq (P.W.6), Hafizul Haq (P.W.7), Miskin Sarwar (A.P.W.1) and Habibul Haq (A.P.W.2) unequivocally stated that the petitioner/plaintiff had married with Mst. Rafia and out of the said wedlock, the son Saeedul Haq was born. Both the mother and son had died.

18. The learned counsel representing the respondents/defendants in both the cases laid much stress about the minor contradictions with regard to the time of death of son/Saeedul Haq. The contradictions pointed out were to the effect that the P.W. stated that the son died after the death of his mother whereas the second P.W. stated that the son died after 7 months of the death of his mother, but the fact remains that both the mother and son died in the year, 1943. P.Ws. 6 and 7 were examined on 22‑11‑1989 whereas A.P.Ws.1 and 2 were examined on 19‑1‑1994 i.e. P.Ws. 6 and 7 were examined after 46 years of the death of Mst. Rafia and Saeedul Haq and A.P.Ws.1 and 2 were examined after 51 years of the death of mother and son, therefore; these minor contradictions are of no significance, however, the fact remains that all have stated that Mst. Rafia daughter of Abdul Qayyum Bacha was married to petitioner/plaintiff and her son died after her death.

19. The petitioner/plaintiff has also placed on record certificate of Mst. Rafia Exh.P.W.1/1: Khalilur Rehman, Vaccination, D. H. O. Mardan was examined as P. W.1 in this regard who placed on record death certificate of Mst. Rafia which shows that she had died on 29‑9‑1943. This witness was not cross‑examined that Mst. Rafia was not the daughter of Abdul Qayyum Bacha. Even the death certificate was placed on record without any objection by the respondents/defendants side. It is by now settled that when a document is placed on record without any objection from the other side, its admissibility cannot be challenged at the appellate stage and what to speak of challenging the same at revisional stage. Reliance in this regard is placed on:‑‑

(1) Abdullah and others v. Abdul Karim PLD 1968 SC 140, (2) Malik Din and another v. Muhammad Aslam PLD 1969 SC 136 and (3) Abdul Hamid Khan v. Muhammad Zamir Khan and 2 others 1990 MLD 1617.

20. There is no rebuttal available on record that Mst. Rafia who had died on 29‑9‑1943 as shown in Exh.P.W.1/1 was not the wife of petitioner/plaintiff Aminul Haq and the said lady was not daughter of Abdul Qayyum Bacha. In absence of rebuttal, it stands proved that Mst. Rafia who was wife of petitioner/plaintiff had passed away on 29‑9‑1943.

21. Then there is another piece of evidence available on record in the shape of certified copy of the plaint (Suit No.210/1) instituted on 11‑4‑1979 titled Mst. Bibi Zahida v. Abdul Haseeb and 43 others (Exh.P.W.6/3). Mst. Bibi Zahida was the sister of Mst. Rafia and in para. 4 of the said plaint she stated that:‑‑

Although there is nothing on record to show as to what was the outcome of said suit but it appears that the same was dismissed for non- prosecution. The averments of the plaint on record Exh.P.W.6/3 show that Mst. Bibi Zahida had also admitted that her sister Mst. Rafia was married with Aminul Haq petitioner/plaintiff who had been arrayed as defendant No. 12 in the said suit and out of their wedlock a son, namely, Saeedul Haq was born. The respondents have not been able to place any evidence on record to rebut this piece of evidence. Mst. Bibi Zahida who had filed the said suit, could not be produced by the petitioner/plaintiff because her brother had gained the benefits of legacy of Mst. Rafia, therefore, she could not afford to annoy the entire family by deposing in favour of the petitioner/plaintiff but the respondents could easily produce her in their support at least to prove that the said suit was filed by her at the instance of petitioner/plaintiff Aminul Haq which was also not done.

22. There is yet another document placed on record in the shape of Mutation No.286 attested on 29‑3‑1952 (Exh.P.W.3/3) (also placed on record as Exh.P.W.6/1). This mutation was entered and attested after the death of Mst. Rafia. To be more exact it was entered on 10‑4‑1950 and was attested by the Revenue Officer on 29‑3‑1952 on the identification of Abdul Hakim brother of Mst. Rafia. The aforesaid mutation contains a note of Aminul Haq petitioner/plaintiff stating:‑‑ and he put his signature on the said note. The identification by Abdul Hakim brother of Mst. Rafia and acceptance of the sale by Aminul Haq petitioner/plaintiff on behalf of Mst. Rafia in favour of Mir Ahmad and others also proves the fact that Mst. Rafia was the wife of Aminul Haq petitioner/plaintiff. In Column No.2 of the said mutation, she has been shown daughter of Abdul Qayyum Bacha and there is no denial of the fact that Abdul Hakim was brother of Mst. Rafia who had verified the above factual position. Only this document Exh.P.W.6/1 is sufficient to grove that Mst. Rafia was the daughter of Abdul Qayyum Bacha, sister of Abdul Hakim and wife of Aminul Haq petitioner/plaintiff.

23. The petitioner/plaintiff has through convincing evidence proved that Mst. Rafia daughter of Abdul Qayyum Bacha was the wife or petitioner/plaintiff Aminul Haq and out of their wedlock, the son. namely, Saeedul Haq was born who died after the death of his mother Mst. Rafia, therefore, the petitioner/plaintiff was entitled to the legacy left by Mst. Rafia which she inherited from her father Abdul, Qayyum Bacha. The learned trial Court had rightly appreciated the evidence on record but the learned Appellate Court failed to appreciate the same in its true perspective.

24. I, therefore, allow both the revision petitions, in hand, set aside the judgments and decrees, dated 25‑11‑1990 passed by the learned Additional District Judge, Swabi and restore the judgments and decrees dated 18‑3‑1990 passed by the learned trial Court in both the suits. However, there shall be no order as to costs.

M.H./9/P Revision allowed.