ADALAT KHAN Versus BEGUM BIBI

1. MUHAMMAD AFZAL ZULLAH, C.J.- --This appeal through leave of the Court is directed against a judgment of the Lahore High Court; whereby in a land inheritance case the respondents/defendants' Regular Second Appeal was allowed and the plaintiffs suit was dismissed. Earlier the plaintiff/appellant's suit had also been dismissed by the trial Court but his appeal having been allowed by the District Court, the respondents' Second Appeal as stated above, was allowed.

2. Learned counsel for the appellant, as he put it, corrected the pedigree -table showing the relationship of the parties, as according to him, the references to it in the impugned judgment are not correct. According to him the suit land belonged to Mst. Dani. She had married Mahind and from this wedlock she had two children Mst. Begum Bibi a daughter respondent No.l and Qazi respondent No.2. Both having died they are now represented by their L.Rs. (respondents' side herein). Learned counsel further stated that after the death of Mahind Mst. Dani married Barkat Ali and the appellant claimed to be the son of Barkat Ali from his wedlock with Mst. Dani; therefore, whatever Mst. Dani left on her death, would have to be shared by him also, alongwith Qazi and Mst. Begum Bibi, in accordance with the Islamic Law of Inheritance -- the two sons i.e. Adalat Khan and Qazi would get four shares two each and Mst. Begum Bibi only one share.

3. The findings of fact, which at present stand against the appellant's claim to the above-stated' succession, are supported by reasons. One is that in an earlier litigation in which the appellant had claimed to have purchased the land in dispute from Mst. Dani during her lifetime he failed to establish the sale and it was found to be a fraudulent attempt. The respondents herein had then challenged the said sale successfully and they were also declared as her heirs under issue No. 3 in that suit. It is, however, correct that no finding was given in that suit that appellant was not the son of Mst. Dani.

4. In the present second round of litigation the High Court has held that the previous litigation and the decision therein on the plea of the appellant that lie is the son of Mss. Dani, having been finally adjudicated upon (and in any case the same could 'have been urged and supported by further evidence) the appellant's claim was barred by principle of res iudicata particularly, the constructive res judicata.

5. We have heard the learned counsel for the appellant at some length. The learned counsel for the appellant has tried to show that the plea of constructive res judicata was not available to the respondents' side against the appellant; because his previous suit was under different title; namely, right of ownership through purchase. But the present suit is based on the right of inheritance.

6. In so far as theoretical position goes, the learned counsel for the appellant may be right. But in this case it has to be seen; whether, in the previous suit also at its later stage the appellant's claim on the basis of inheritance, as alleged by son of Mst. Dani, was not examined and the decision was not rendered against the appellant. The judgment dated 26th May, 1970 by the Appellate Court has reprodu4ed the issues for trial between the parties in that case. Issue No.3 reads as follows:--

7. "Who are the heirs of Mst. Dani and what are their shares?"

8. With regard to this issue the learned trial Judge in this second round of litigation made the following observation in his judgment dated 17th June, 1975:

9. Two main questions arise; whether, in the previous suit issue relating to the appellant being the son of Mst. Dani was tried and decided against the appellant; and whether, in case it was not finally decided against him, he was nevertheless precluded from taking this plea in the present litigation on account of the constructive res judicata . The record of the previous suit having been summoned it has become clear from it that although there was an issue regarding the heirs of Mst. Dani and this question was also tried but the decision thereon was not of any determinative character. In the judgment dated 27th January, 1970 the learned trial Judge in the previous suit decided issue No. 3 as follows:--

10. "It was admitted by the defendant (the present appellant) and his witness in their statements that the plaintiffs are the children of Mst. Dani. Therefore, they are the co-heirs to get the land in dispute. Issue is accordingly decided in their favour."

11. In the trial Court judgment in the present case, the above decision on issue No.3 was interpreted as if the finding was that the appellant was not the son of Mst. Dani and that o nly the respondents Mst. Begum Bibi and her brother Qazi were only children of Mst. Dani. This amounts to misreading of the judgment of the trial Court in the previous litigation.

12. Although Mst. Begum Bibi and Qazi were found to be the children of Mst. Dani but it was not held that there was no other child of Mst. Dani. Apart from this omission, the decision on issue No.3 is to the effect that Mst. Begum Bibi and Qazi were "co-heirs" to get the land in dispute. The word co-heirs can also mean that they alongwith the appellant were the co-heirs. This supposition finds support from the evidence in that case. One of the respondents' own witnesses; namely, Muhammad Din son of Shahab Din, who appeared as P.W. 1, admitted under cross-examination that Adalat Khan (the defendant in the previous suit) is the son of Mst. Dani. From the appellants' side also a Lambardar had appeared who deposed that Mst. Dani was the mother of the present appellant. It is perhaps for this state of evidence that learned Judge while deciding issue No.3 did not finally determine the relationship of Mst. Dani and the appellant nor did he hold that he was not entitled to a share in her inheritance. Therefore, it can safely be said that the issue relating to the appellant being the son of Mst. Dani and being entitled to inherit her property, although was tried, but was not finally decided. Hence bar of res-judicata would not apply. The question: as to whether, bar of constructive res-judicata would apply, also does not arise; because, in the previous suit the appellant had submitted his written-statement alleging therein that he was the son of Mst. Dani and was also entitled to inherit her property. This probably was the reason that an incorrect issue was framed in this behalf which, as already noticed, was not finally determined. Hence it is clear that the appellant's suit as heir of Mst. Dani seeking his share in her estate' was not barred by res judicata.

13. The next question arises as to whether in the present suit the appellant has boon able to establish that he is the son of Mst. Dani. As his own witness the appellant made a statement on oath on a Court question that he had not pleaded in the previous suit that he was the son of Mst. Dani. This statement was made 5 years after the submission of his written-statement through a lawyer in the previous suit wherein, as already noticed in paragraph No.3, a definite plea was taken that he was the heir of Mst. Dani. Not only this, he had led evidence in support of this plea to the effect that he was her son. In the present suit he also produced P.W. 2 who, inter alia, deposed that the present appellant was the son of Mst. Dani. No attempt was made in cross-examination to show that P.W. 2 had made a wrong statement. Not only this, Qazi, one of the co-heirs, admitted that the appellant is his brother though Mst. Begum Bibi respondent made no such concession. The admission of Qazi respondent can be examined in two different contexts. One, that in so far as his own share in the inheritance is concerned he could not prevent sharing it with the appellant; and second, that as a witness he has deposed in favour of the appellant stating that he is son of Mst. Dani. This goes not only against his own interest but also against the interest of; his real sister Mst. Begum Bibi. There is no reason to disbelieve him. Rather it is a strong piece of evidence in favour of Adalat Khan. Accordingly, it is held that Adalat Khan is co-heir of Qazi and Mst. Begum Bibi all being the children of Mst. Daiii. He would, accordingly, inherit his share in the suit property as son of Mst. Dani. To this extent, accordingly, while setting aside the impugned judgments, the suit of the appellant is decreed. There shall be no order as to costs.

14. A.A./A-84.4/5 Appeal partly accepted.