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Petitioner: ZILLEDAR KHAN VS Respondent: ABDUL SHAKOORHonorable Justice Saad Saood JanRai Muhammad Ashraf Khan
1988 M L D 786
1988 M L D 786
[Lahore]
Before Saad Saood Jan and Abaidullah Khan, JJ
ZILLEDAR KHAN and another‑‑Appellants
versus
ABDUL SHAKOOR and another‑‑Respondents
Regular First Appeal No.177 of 1982, decided on 5th February, 1983.
(a) Muhammadan Law‑‑
‑‑‑ Inheritance‑‑Collateral, proof of‑‑Prepositus dying issueless and his entire land mutated by revenue authorities in name of his widow by applying doctrine‑ 14 return‑‑Persons claiming 1/4th of share in property on basis of being collaterals and leading oral as well as documentary evidence in this regard‑‑Documentary.. evidence consisting of copies of Shajra Nasab and Jamabandi‑‑Shajra Nasab rendering no assistance to determine the claim while Jamabandi merely indicating that prepositus was a co‑sharer in a Khata jointly with claimant‑‑Shares ‑of various co‑owners in Khata being different, merely because prepositus was a co‑sharer in same Khata with claimants, held, would not necessarily imply that he was their collateral.
(b) Muhammadan Law‑--
‑‑‑-Inheritance‑‑Collaterals‑‑Proof‑‑1/4th share in property claimed as collateral of prospositus‑‑Documentary evidence produced by claimants not furthering their claim and oral evidence produced in this regard based on hearsay and not inspiring confidence‑‑Onus of proving that claimants were collaterals, held, not discharged by them‑‑Judgment of Trial Court dismissing suit of claimants on basis of being collaterals affirmed.
Rai Muhammad Ashraf Khan for Appellant.
JUDGMENT
SAAD SAOOD JAN, J.‑‑The only question of consideration in this Regular First Appeal is whether the appellants are heirs of one Ismail under the Hanfi Law of inheritance. Ismail was owner of 217 Kanals and 4 Marlas of land in Chak Pension Kharan in Tehsil Kasur. He died issueless in 1973, leaving behind a widow by the name of Mst. Fazeelat Begum. The Revenue .authorities mutated the entire property in the name of Mst. Fazeelat Begum presumably by applying the doctrine of return. The appellants filed a civil suit claiming that as collaterals of Ismail in the fourth degree, they were entitled to 3/4th share in the property left by him. During the pendency of the suit, Mst. Fazeelat Begum died. Whereupon the respondents were impleaded in her place. The trial Court dismissed the suit after holding that the appellants were not collaterals of Ismail. The appellants have come in appeal to this Court.
2. The appellants produced both documentary as well as oral evidence to establish their relationship with Ismail. The documentary evidence maim ‑ consists of copies of Shajra‑Nasabs and of a Jamabandi prepared in India. The shajra‑nasabs are of no assistance to the appellants, for, apart from showing that A Ismail belonged to their sub‑castes they do not connect them with him in any manner. The jamabandi merely indicates that Ismail was co‑sharer in a Khata jointly with the appellants. It is to be noticed that the shares of the various co -owners in the Khata are different. Merely because Ismail was a co‑sharer in the same Khata with the appellants does not necessarily imply that he was their collateral. Thus the documentary evidence does not in any way further the claim of the appellants.
3. The oral evidence led by the appellants comprises the statements of three witnesses, namely, Abdul Ghafoor Khan (P.W.1), Ibrahim (P.W.2) and Zilledar (P.W.3). The last mentioned witness, namely, Zilledar (P.W.3) is one of ‑‑'the appellants. All these witnesses stated that Ismail was the son of Fateh Muhammad alias Fattia. Fateh Muhammad alias Fattia was the son of Anwar Khan and Anwar Khan was the son of Jogy. Jogy had four real brothers by the names of Noora Khan, Keemay Khan, Sipadar Khan and that Zilledar Khan was a lineal descendant of Sipadar Khan.
4. In rebuttal the respondents examined four witnesses, namely, Muhammad Ramzan (D.W.1), Abdul Shakoor (D.W.2), Nawab (D.W.3) and Mst. Fazeelat Begum (D.W.4). The respondents' witnesses asserted that Jogy was not the ancestor of Ismail but that Ismail was descended from one Wali Khan.
5. The onus of proving that they were collaterals of Ismail was on the' appellants. We do not think that the oral evidence led by them in this regard is of I a reliable nature. Neither Abdul Ghafoor Khan (P.W.1) nor Ibrahim (P.W.2) claimed that he was in any way directly connected/related with Ismail. None of them has seen the father of Ismail. It is, therefore, unlikely that‑they could be in a position to trace the genealogy of Ismail to the 4th degree. It appears to us that B their statements in this regard are based entirely on hearsay. We are also not satisfied that any of them occupied any special position that would give them an opportunity to be acquainted with the names of the ancestors of Ismail. We are, therefore, unable to rely upon their testimony for establishing relationship of the I appellants with Ismail.
For the reasons stated above we affirm the finding of the trial Court that the appellants had failed to prove that they were collaterals of Ismail. The appeal is without any merit and is hereby dismissed in limine.
M.Y.H/3234/L Appeal dismissed.