1991 PLP 283 (SCMR)

MUHAMMAD AFZAL ZULLAH, CJ.‑‑Leave to appeal has been sought in this case of inheritance; against the dismissal by the High Court on 10‑2‑1990, of petitioners/defendants' application for review. Learned counsel for the petitioners has for purpose of convenience and easy understanding produced the following pedigree table with 2 foot notes as reproduced below:‑‑ "(1) Civil Judge dismissed the suit for partition and possession and declaration on 29‑7‑1953. Niamat Bibi defendant held entitled to the entire property on the basis of Shia Law. (2) 4 direct First Regular appeals to the High Court. Vide decision dated 13 3‑1961, hind that the parties were governed by Hanafi Law of inheritance. The Court then proceeded to apportion shown. It fell into error on the allocation of the residue 5/24. It thought there were no residuaries in applied land: According to learned counsel although the property involved in this case, for purpose of these proceedings shall be treated as of Mehar Dass alias Mehar Din, he had inherited it from Saliib Ditta Mal. The further facts as briefly stated are that except for Pirthvi Nath son of said Mchar Dass and some others not relevant for the present case all had embraced Islam long before independence. The conversion, it is stated, took place on account of influence of late Agha Khan. Accordingly, they were treated as Ismailis but the learned counsel asserted they followed the rules of Sunni Fiqh in the matter of inheritance. Although Sahib Ditta Mal is stated to have executed a will in favour of his wife Mst.Darveedi who after embracing Islam was known as Shehar Bano, learned counsel stated that in the present controversy raised by the petitioners the question of will is not of much importance. Mehar Din previously Mehar Dass left two children Mst. Niamat Bibi and Pirthvi Nath. Pirthvi Nath was married to Mst.Malka Sultana daughter of Rain Ditta Mal, a paternal niece of Sahib Ditta Mal. From this wedlock there is a daughter named Shama Anjuman. Apart from these persons connected with Ram Ditta Mal and Sahib Ditta Mal in one or the other context Mst. Allah Rakhi is also a party. She is the widow of Mehar Din. In addition to Ram Ditta Mal and Sahib Ditta Mal the aforementioned 2 brothers, they had another brother named Gulab Chand. They all were the sons of Bisakhi Ram. Gulab Chand had embraced Islam and he was known as Ghulam Ali. He has three sons Noor Ali, Jaffar Ali and Khushdil. The dispute arose on the filing of a suit for partition by Malka Sultana and her daughter Shama Anjuman, of urban and agricultural property. The trial Court held that the concerned parties were governed by Shia Law and therefore Mst.Niamat Bibi the daughter of Mehar Din would inherit the property. The High Court on filing of several appeals including those by Allah Rakhi, Noor Ali, Jaffar Ali, Khushdil; Malka Sultana and Shama Anjuman held by judgment dated 13‑3‑1961 reported in P L D 1961 (W.P.) Lahore 431 that the parties were governed by the Sunni Law and distributed the shares amongst the Sunni heirs accordingly. The question of residue was resolved through the application of the principle of return. The petitioners' side not being satisfied filed a review application which was allowed ex parte. Later on, however, on the application of the respondents' side, the ex parte proceedings were set aside. The review application was heard de novo and it was finally dismissed on 10‑2‑1990 mainly on the consideration that in the meanwhile an appeal having been preferred before the Supreme Court, the' matter was ultimately decided by this Court and the judgment of the High Court merged in the appellate judgment of the Supreme Court. Accordingly, the High Court did not consider it just, proper and lawful to exercise the power of review. The question that the present petitioners had not only full opportunity but were also entitled to urge their point of view before the Supreme Court in the said appeal was also thoroughly examined. It is unfortunate that the A.O.R. of the petitioners has not filed a copy of the Supreme Court judgment nor. the grounds of appeal and on this ground alone this petition can be dismissed. But we heard the learned counsel also on the points decided by ‑'he High Court against the petitioners, vis‑a‑vis, the bar created by the Supreme Court judgment. He tried to cite old cases from Indian jurisdiction as also tried to rely on some English law but unfortunately they are of no assistance to the petitioners. Question: as to whether, this Court had the power to entertain pleas which might have been raised by the petitioners and prevailing Code of Civil Procedure learned counsel did not cite any judgment of this Court on this issue. Be that as it may, we agree with the High Court that the relief sought by the petitioners in the High Court in its review jurisdiction was also within the power of this Court to grant relief in the earlier appeal in this very case. Accordingly, the impugned judgment is unexceptionable. This petition for leave to appeal has no force and is, accordingly, dismissed. AA./N‑255/S Leave refused.