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Petitioner: Mst. BASHIRAN BIBI through Legal Heirs and anothers VS Respondent: Mst. CHOORHAN JUDGMENT
Court Name: Lahore High Court Judge(s): Dr. Munir Ahmed Mughal Title:Mst. BASHIRAN BIBI through Legal Heirs and anothers vs Mst. CHOORHAN
JUDGMENT
Reported As: 2001 YLR 464 Result: Appeal dismissed Judgment JUDGMENT ' This is a regular second appeal under section 100, C. P.0 . Against the judgment and decree, dated 22-3-1973 passed by learned District Judge, Lahore and also against the judgment and decree, dated 3-3-1969 passed by learned Civil Judge, Lahore whereby both the Courts below dismissed the suit of the plaintiff. 2. Briefly stated the case of the appellant/plaintiff is that she brought a suit for possession of 242 Kanals and 12 Marlas of agricultural land situated in Chak No,35 Burj Mahalam Tehsil Chunian District Lahore. The claim of the appellant in that suit was that she was daughter of one Muhammad Din son of Allah Ditta and her father died when she was about 2 years old leaving behind the appellant only child from his wife Mst. Janat Bibi. She was minor and she could not bring suit for realization of the land in question and the present suit was filed through one Chiragh Din son of Jamal Din resident of Burj Mahalam Lahore but during this period the land question was got mutated by the respondent in her own name, and in this way the appellant was deprived of the inheritance from her deceased father, the said Muhammad Din. The suit was contested by the respondent and out of the pleadings of the parties following issues were framed by the trial Court:- - Issues (1) Who were the heirs in respect of the estate at the time of death of Muhammad Din and what are their shares? OPP (2) Whether the suit is barred by time? OPD (3) Whether the plaintiff was bound by the gift made by Mst. Raj Bibi? OPD
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(4) Relief. 3. Both the parties adduced their respective evidence and the learned trial Court dismissed the suit of the plaintiff/appellant vide its judgment and decree, dated 3-3-1969. An appeal was preferred against the judgment and decree which was dismissed by the learned District Judge, Lahore vide impugned judgment and decree, dated 22-3-1973. 4. Learned counsel for the appellant has submitted that Mst. Bashiran Bibi filed a suit on 24-4-1956 for measuring 248 Kanals, 4 Marlas, situated in village Burj Mahalam and Burj Kalan and Mutation of Inheritance No,118, dated 3-6-1943 sanctioned in favour of Mst. Churran Bibi respondent and her mother Mst. Raj Bibi in respect of the land situated at village Burj Mahalam and Mutation of Inheritance No, 65, dated 27-7-1943 sanctioned in favour of Mst. Raj Bibi in respect of the land situated in village Burj Kalan and subsequent mutation of oral gift made by Mst. Raj Bibi in favour of Mst. Churran Bibi respondent through Mutation No,207, dated 5-2-1945 regarding the land situated in village Burj Mahalam be set aside and declared to be illegal and not binding on the rights of the plaintiff as the plaintiff Mst. Bashiran Bibi was real daughter of deceased Muhammad Din son of Allah Ditta and the plaintiff is entitled to get whole of the estate left by her father Muhammad Din and that the respondent Mst. Churran Bibi contested the suit and denied the version of the plaintiff stating that the plaintiff has no nexus with the deceased Muhammad Din. The defendant's main defence was that plaintiff Mst. Bashiran bibi was daughter of Mst. Janat Bibi from her second husband's friend namely Umar Din son of Allah Din as both Ahmad Din i.e, second husband of Mst. Janat Bibi and thereafter, she was married with Ahmad Din son of Illahi Bukhish and that deceased Muhammad Din son of Allah Ditta was remained unmarried and died issueless, and that the plaintiff/appellant Mst. Bashiran Bibi produced 24 P.Ws. And also tendered in her evidence documents Exh.P.1 to Exh.P.24/48 whereas the respondent produced 11 P.Ws. And also tendered documents Exh.D.1 to Exh.D.22. The learned trial Court decided Issues Nos.2 and 3 in favour of the 1.- plaintiff/appellant whereas decided issues Nos.1 and 4 against her and dismissed the suit of the plaintiff on 3-3-1969. The plaintiff tiled an appeal before the learned District Judge, Lahore which was also dismissed on 22-3-1973. He also submitted that the main dispute between the parties was that whether their predecessor-in interest namely Muhammad Din son of Allah Ditta died in the year 1943 remained unmarried and died issueless or was married with Mst. Jannat Bibi, who is mother of Mst. Bashiran Bibi appellant No,1 and the appellant No,1 was born out of their wedlock on 14-10-1941 and she is entitled to inherit the suit land left by Muhammad Din deceased. 5. Learned counsel for the appellant submitted that Mst. Bashiran Bibi produced most important witness P.W.1 Mst. Janat Bibi and she stated that she was married with Muhammad Din deceased and out of their wedlock plaintiff Mst. Bashiran Bibi was born. Her Nikah was solemnized by Mian Allah Bukhish, Imam Masjid of village Burj Mahalam and the witnesses of Nikah were her uncle namely Abdullah and her real brother. Khushi Muhammad P.W.2 and P.W.10 respectively and Mst. Bashiran Bibi was born after three years of marriage and her husband died about two years after the birth of Mst. Bashiran Bibi, and thereafter she got her second marriage with Ahmad Din about six months. He further submitted that neither the main statement of the P.W. Was cross-examined nor any suggestion was made to the witness that she was not married with Muhammad Din and the plaintiff Bashiran Bibi was not born out of their wedlock. He also urged that the appellant also produced the witness of Nikah namely Abdullah P.W.2 who deposed that he was present in the marriage and the Nikah was performed in his presence by Mian Allah Bukhish, Nikah Khawan and out of their wedlock Mst. Bashiran Bibi was born and both the child and her mother remained in the house of Muhammad Din till his death. The plaintiff also produced P.W.3 Nikah Khawan namely Allah Bukhish who also deposed that he performed Nikah of Mst. Janat Bibi with Muhammad Din 18 years back and out of the wedlock Mst. Bashiran Bibi was born. He also deposed that the said Muhamamd Din died after five years of the marriage when Mst. Bashiran Bibi was 2-1/2 years old.
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This witness was also not cross-examined on the relevant points of solemnization of Nikah and birth of Mst. Bashiran Bibi. The appellant also produced Mst. Fatima Bibi, Dai, widow of Waryam as P.W.4 who deposed that she got delivered Mst. Bashiran Bibi from Janat Bibi, wife of Muhammad Din and Muhammad Din died about two years after the birth of Mst. Bashiran Bibi and Mst. Janat Bibi thereafter contracted her second marriage with Ahmad Din. This witness was not cross- examined on the relevant points nor was any suggestion made to her that she did not get delivered the plaintiff Mst. Bashiran Bibi from Mst. Janat Bibi, and that Mst. Bashiran Bibi was not daughter of Muhammad Din. The plaintiff also produced Mst. Rakhi idow of Chiragh Din as P.W.5. This witness deposed that after the death of her husband she adopted Muhammad Din son of Allah Ditta as she was issueless and she brought up Muhammad Din and when he became young she got him married with Mst. Janat Bibi and out of the wedlock a daughter namely Mst. Bashiran Bibi was born and when Mst. Bashiran Bibi was about 2-1/2 years old the said Muhammad Din was died. She also deposed that she received contribution money from her relatives on the marriage and the Behi was also produced by her as Exh.P.1. This was a very material witness and relative of both the parties but no direct relevant cross-examination was made. Moreover, no suggestion was made to her that due to which reason or enmity she deposed against the defendants/respondents. The plaintiff also produced Noor Ahmad Chowkidar of village Nizampura as P.W.6 who deposed that he got entered the fact of birth of Mst. Bashiran Bibi in the relevant register as daughter of Muhammad Din. This witness also established relations with deceased Muhammad Din and denied that one Umar Din son of Allah Ditta was resident of village Nizampura. Jamal Din son of Fareeda 'P.W.7 deposed that Mst. Allah Rakhi adopted Muhammad Din who was married with Mst. Janat Bibi. The Nikah was performed in his presence and Mst. Janat Bibi remained his wife till his death. He also deposed that on the marriage of Muhammad Din he recorded money contribution in the Behi Exh.P.1 and the appellant/plaintiff was born out of the wedlock. This witness was also not cross-examined on the relevant points that the Nikah was not performed in his presence or he did not write the detail of the money contribution in Behi or that Mst. Bashiran Bibi is not daughter of Muhammad Din. Rather the suggestion given to him that who performed the Nikah of Muhammad Din at what time the Nikah was solemnized and in which season and after how much time the plaintiff Mst. Bashiran Bibi was born implies admission on the part of the defendants side that Nikah was performed and the plaintiff Mst. Bashiran Bibi was born out of the wedlock. The appellant also produced Sohan Din P.W.8, Bala son of Chiragh Din P.W.9 and Khushi Muhammad P.W.10. All these witnesses stated that Mst. Janat Bibi was married with Muhammad Din deceased and Mst. Bashiran Bibi was born out of their wedlock but the witnesses were not cross-examined that they had made incorrect statement. Another P.W.11 namely Imam Din was produced by the appellant who stated about the factum of Nikah between Mst. Janat Bibi and Muhammad Din. He also stated that Mst. Bashiran Bibi was born out of their wedlock. The plaintiff produced Ali Muhammad P.W.12 and Muhammad Din P.W.13 who deposed that they attended the marriage ceremony of Muhammad Din with Mst. Janat Bibi and Mst. Bashiran Bibi was born out of their wedlock. They also deposed that Nikah was performed by Maulvi Allah Rakha, Imam Masjid of the village. The statements of both the P. Ws. Were also remained uncross-examined on the relevant points of marriage and relationship of Bashiran Bibi with Muhammad Din and Janat Bibi. The plaintiff also produced the second husband of Mst. Janat Bibi, namely, Ahmad Din as P.W.14 in order to disprove the allegation of the defendants that Mst. Janat Bibi was abducted by Ahmad Din and Umar Din. This witness stated that he did not abduct Mst. Janat Bibi alongwith Umar Din but on the other hand this witness proved that her wife Janat Bibi was previously married with Muhammad Din. Thereafter, the plaintiff produced Mst. Allah Jawai widow of Illahia as P.W.15. This witness is real paternal-aunt of Mst. Janat Bibi in whose house Janat Bibi gave birth to Mst. Bashiran Bibi. This witness also stated that Mst. Janat Bibi remained as wife of Muhammad Din for about five years till
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his death and Muhammad Din died when Mst. Bashiran Bibi was about two years of age. This witness also stated that at the time of birth the name of Mst. Bashiran Bibi was delivered to the Chowkidar as well as to Fatima Bibi Dai, as Barktey but thereafter her name was changed from Barkatey Bibi to Bashiran Bibi. This witness was not cross-examined on material and relevant points of her statement. 6. The evidence of the plaintiff was closed and defendants/respondents produced D.W.1 Muhammad Ishaq, Assistant Clerk Office of D H.O. Kassur. This witness produced the of his office in 1941 which was changed later on, on the application of g-iardian of Mst. Bashiran Bibi. Chiragh Vaccinator Inspector, District Board appeared as D.W.2, who produced his record regarding vaccination which was changed later one alongwith order as Exh.D.5. This witness did not support the version of the defendants side rather supported the claim of the plaintiff. Wali Muhammad son of Allah Din was produced as D.W.3 who deposed that he knew Muhammad Din son of Allah Ditta, who was not married and died issueless, therefore, on his death land was mutated in the names of his mother and sister. This witness has no relationship with either of the parties. In cross- examination this witness admitted that he did not know Mst. Rakhi who was wife of real brother of Allah Ditta father of Muhammad Din. This witness deposed that Mst. Janat Bibi was abducted by Ahmad Din and Umar Din but he stated in cross-examination that no action was taken against the abduction of Mst. Janat Bibi by her parents/relatives and that he never saw the abductor after the occurrence. Ilahi Bukhish son of Nabi Bukhish appeared as D.W.4 who stated that he knew Muhammad Din son of Allah Ditta who was not married with Mst. Jannat Bibi nor Mst. Bashiran Bibi was his daughter and the only legal heirs of Muhammad Din was his sister and mother. He further stated that Mst. Janat Bibi was abducted and thereafter was married with Ahmad Din and that at the time of abduction Mst. Janat Bibi was residing at the house of her parents. On cross- examination this witness admitted that Mst. Bashiran Bibi is daughter of Mst. Janat Bibi. He also stated that he heard that she was abducted and alleged abductor Umar Din was not resident of his village Burj Mahalam but resident of village Nizampura situated 6 miles away from Burj Mahalam and he heard that Umar Din was resident of Nizampura but he never saw him. This witness denied the suggestion of the plaintiff counsel that he participated in the marriage of Mst. Janat Bibi and paid Rs,4 as contribution money. The name of this witness is present on the register Behi Exh.P.1 recorded at the time of Nikah/marriage. Therefore, the evidence of this witness is also not helpful to the respondents. Dhola son of Fateh Din and Musa son of Wali Muhammad were produced as D.W.5 and D.W.6 who simply stated that Mst. Janat Bibi was not married with Muhammad Din nor Mst. Bashiran 3ihi has any relation with him and Muhammad Din died issueless and they heard a rumour of abduction of Mst. Janat Bibi by Ahmad Din and Umar Din. On cross- examination the said witnesses admitted that they did not know personally the said Umar Din or about his residence or his relatives. D.W.6 stated that Mst. Allah Rakhi was not related to Muhammad Din and Muhammad Din died at the age of only 15 years. However, this witness admitted that he had not seen the alleged abduction of Mst. Janat Bibi. Allah Bukhish son of Nizam Din appeared as D.W.7 who simply stated that Muhammad Din was neither married nor Mst. Janat Bibi and Mst. Bashiran Bibi were related to him. This witness is real uncle of the husband of. Mst. Churran Bibi respondent. This witness was the main mischief monger who deprived the appellants/plaintiff from their legal shares by joining hands with the concerned Halqa Patwari and succeeded to get mutation of inheritance of Muhammad Din within few days after the death of Muhammad Din to the names of her sisters and Mst. Raj Bibi mother by concealing the real facts that there was widow and daughter of deceased alive. This witness also admitted in cross- examination that there remained enmity and criminal litigation between him and Chiragh Din i.e, guardian of Mst. Bashiran Bibi. Rehmat Ali son of Jalal Din appeared as D.W.8 who stated that Mst. Bashiran Bibi is daughter of Umar Din son of Alu who abducted Mg. Janat Bibi and then handed
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over her to Ahmad Din and thereafter Mst. Bashiran Bibi was born. Re also stated that at the time of second marriage of Mst. Janat Bibi with Ahmad Din her second husband was bachelor and Mst. Janat Bibi was also bachelor. He stated that Mst. Bashiran Bibi is not daughter of Muhammad Din but daughter of Umar Din. In his cross-examination he failed to give full details/whereabouts of Umar Din. Muhammad Din son of Jalal Din appeared as D.W.9 who was Lumberdar of another village namely Matayke Dhariwal. He stated that Maulvi Allah Bukhish and his son Sharif was allotted some land in his village whereafter Mst. Churran got recorded her statement as D.W.10, who stated that her brother Muhammad Din was not married and died issueless, therefore, his inheritance was developed upon his mother and thereafter the same was gifted to her by her mother. Mst. Bashiran Bibi is not daughter of Muhammad Din. In his cross-examination he stated that there was a rumour in the village that Mst. Janat Bibi has been abducted by Ahmad Din and Umar Din but the matter was not reported to the police. He denied that she was also called with the name of Rani Bibi, and who is real father of Mst. Bashiran Bibi. 7. The plaintiff in order to rebut the version of the defendants/respondents particularly the allegation of alleged abduction of Mst. Janat Bibi by Ahmad Din and Umar Din produced the said Umar Din i.e, the alleged abductor as P.W.16. He deposed that he had no nexus with Mst. Janat Bibi and she was never abducted by him nor she was kept in his house as his wife nor he is father of Mst. Bashiran Bibi. He further stated that he was married in Mauza Nizampura and his wife name is Sadan Bibi and there are three issues from her, and he did not know the alleged Ahmad Din nor he abducted Mst. Janat Bibi alongwith him. This witness also stated that Mst. Janat Bibi was married with Muhammad Din and Mst. Bashiran Bibi was born out of that wedlock. The main contention of the respondents was that Janat Bibi was abducted by this witnes alongwith Ahmad Din and Mst. Bashiran 3ibi is daughter of Umar Din but not a single question was put to that witness; in cross- examination that he abducted Mst. Janat Bibi alongwitn Ahmad Din and that he is fatner of the pla:ntiff Mst. Bashiran Bibi. Even no suggestion was given to that witness that he is not that Umar Din who abducted Mst. Janat Bibi. Abdul Rehman appeared as P.W.17 who produced Nikah register solemnized by Maulvi Allah Bukhish, Nikah Khawan but no cross-examination was made on his statement from the opposite side. Bashir Ahmad P.W.18 process-server appeared who got exhibited summons alongwith his report as P.W.18/1 and P.W.18/2 in order to prove that the other name of Mst. Churran Bibi respondent is Bibi Rani. P.W.19 Mushtaq Ahmad, Clerk M.B. High School produced register of admission wherein husband of Mst. Churran Bibi namely Muhammad Ali got recorded the name of his son Habib Ullah as. Muhammad Bashir. Muhammad H.V.C. District Council, Lahore appeared as P.W.0 and produced list of voters dated 30-4-1926 as Exh.P.W.20/1. Muhammad Ashraf, Assistant Vaccination appeared as P.W.21 but he was not allowed to give his statement. Abdul Razaq, U.D.C. Election Office Pattoki appeared as P.W.22 who got exhibited in his statement voters list of Unit Nos.2036 and 2196 as Exh.P.W.21/1. Muhammad Ashraf Halqa Patwari appeared as P.W.23 and he produced pedigreetable Exh.P.W.23/1 and Exh.P.W.23/2. The plaintiff Mst. Bashiran Cibi appeared as P.W.24 and stated that she daughter of Muhammad Din and the name of her mother is Janat Bibi. The father had died and after the death of her father her mother contracted second marriage with Ahmad Din and the disputed land was left by her father Muhammad Din as inheritance. She produced copy Jamabandi for the year 1952- 53 and also produced so many documents Exhs.P.W.24/2 to 48 and closed its case. The learned Civil Judge dismissed the suit of the plaintiff not on any sound reason but merely on the ground that the document Exh.P.1 Behi produced by the plaintiff is not signed by Jamal Din P.W.7 who deposed in evidence that he made entries in the same whereas the plaintiff made an application under Order 12, Rule 2, C.P.C. To give notice to the defendant to admit or deny the document Exh.P.1 and in fact Exh.P.1 was written by Rasham Ali who has not been produced, therefore, Behi cannot be relied upon.
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8. Learned counsel for the appellant submitted that the learned Civil Judge has misinterpreted the contents of the said application and the evidence of P.W.7. In the application dated 7-6-1956, on behalf of the plaintiff five kinds of entries were stated to have been made detailed from Serial Nos.16 to 20, wherefrom only entry detailed at Serial No,16 was stated to be written by Rasham Ali whereas it was not stated in the application that the other entries details written in the Behi were also the handwriting of Rasham Ali. In order to clarify this confusion the Behi Exh.P.1 and the other attached Behi on which no exhibit was marked can be looked into. Due to some misunderstanding the learned Court marked only one exhibit on one Behi as Exh.P.1 while the other Behi remained unmarked in spite of the ;act that the same was produced before the trial Court and the same was still present on the record and the same can be seen even now. There was no contradiction between the oral and documentary evidence nor the P.W.7 deposed falsely and the reason of dismissal of the plaint is unfounded and is a result of misreading and misinterpretation of the documents on record. He further submitted that P.W.7 was not confronted by the opposite party with the entires of Behi with the suggestion that the same are not of his handwriting. Furthermore, the page on which Exh.P.1 was marked was the detail of distribution of food which was made .19-10- 1938 a day before the marriage of Muhammad Din and not the detail of contribution money. It is also apparent that the detail of contribution money was not recorded by Rasham Ali but by Jamal Din P.W. And Rasham Ali had only written the detail of distribution of food, therefore, he was not produced who was brother-in-law of respondent Mst. Churran Bibi. The respondent did not rebut the abovesaid facts and did not produce Rasham Ali as her witness. The second ground for dismissal of the suit was that P.W.1, Mst. Janat Bibi stated that her Nikah was got written and the spouses affixed their thumb-impressions whereas Nikah Khawan and other P.Ws. Stated that Nikah was performed orally. The learned trial Court failed to peruse the documentary evidence produced by the plaintiff that the factum of marriage was used to be written by the Nikah Khawan in the relevant registers upto the year 1926 but thereafter the Government issued prohibition order which were also produced in evidence and due to that reason some confusion was created in the mind of P.W.1 by asking from her vague questions. The learned trial Court illegally discarded the evidence of P.W.1 in spite of the fact that no cross-examination was made by the opposite party on the main points whether the marriage was solemnized between her and Muhammad Din or not. The third ground for dismissal of the plaint was assigned that there is contradiction in the statements of Mst. Allah Jawai and Mst. Allah Rakhi at the house of whom the plaintiff was born. In fact both the said ladies were residents of the same Haveli, therefore, no misstatement was made by them. The last ground of dismissal was about the birth and death of children of second husband of Mst. Janat Bibi namely Ahmad Din. This ground was also unfounded factually and legally and not available, therefore, the suit cannot be dismissed on that score. In fact two copies of the birth register and death register of Muhammad Mukhtar were produced by the parties and some dubious documents were taken into consideration by the Court while deciding the case. It is also pertinent to mention here that due to that fact the respondent Churran Bibi filed an application before the learned appellate Court under Order 41, Rule 27 read with section 151, C.P.C. By stating that some contradictory documents have been produced and admitted in evidence, therefore, the respondents be allowed to adduce additional evidence. The said application filed on 20-11-1970 remained undecided by the learned appellate Court. It was also established by the appellate Court through her evidence on record that in village normally double names of the persons are called and that the respondents party had also two names and confusion was created by the opposite party by asking ambiguous and misleading questions. Similarly the reason assigned by the learned District Judge while dismissing the appeal of the appellant were also unfounded and baseless and the outcome of misreading and ministerpreting the evidence on record. The learned District Judge failed to peruse the entries of Behi placed on record wherein details of contribution
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money and the names of the contributors are clearly mentioned and the entries of different dates before a day of marriage has not been taken into consideration. It is also noteable that both the Courts below have discarded the evidence of real relatives of the appellant particularly the evidence of P.W.10 Khushi Muhammad real brother of Mst. Janat Bibi was disbelieved due to reason of relationship whereas under the law and dictum of the superior Courts in the cases of inheritance and to establish relationship of the parties only the close relatives of the parties are considered to be the best witnesses. In the present case the appellant proved her version by producing all the…
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