2005 PLP 1671 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

This petition for leave to appeal has been filed against the judgment dated 26th September, 2000 passed by Lahore High Court, Lahore whereby civil revision filed by respondents has been allowed.

2. Precisely stating the facts of the case are that one Hussaina was the last male owner of the suit-land. He. died on 27th November, 1970. The predecessor-in-interest of respondents Nos.1 and 2 filed a suit for declaration along with consequential relief on 1st July, 1981 before the Civil Judge, Gujrat on the averments that Mst. Jewni, widow of Hussaina is entitled to 1/4th share in the suit-land and respondent No.1 namely Fazal Ali had fraudulently got attested the Mutation No.3519, purporting to be a gift by Hussaina as he never made any such gift and the said mutation was attested after his death, when he was more than 100 years of age at the time of his death and had lost his senses. The suit was contested by the respondents by way of filing written statement wherein it was alleged that Hussaina had divorced Mst. Jewni in his life time and that the Union Council "Bazurgwal?' had confirmed the divorce. Regarding the gift mutation he stated that the statement of Hussaina was recorded on 11th November, 1970 and the land was validly gifted to him. Learned trial Court framed issues arising out of the pleadings of the parties. Both the sides led evidence to substantiate their respective pleas. Learned trial Court after having gone through the evidence produced by both the sides and taking all attending aspects of the case, dismissed the suit vide judgment dated 10th March, 1983. Feeling dissatisfied from the judgment of the trial Court, predecessor-in-interest of respondents Mst. Jewni filed appeal before the learned District Gujrat but without any success as the same has been dismissed vide judgment dated 30th November, 1985. Being aggrieved from the judgments of the trial and Appellate Courts, respondents preferred civil revision before the Lahore High Court, Lahore which has been allowed by means of impugned judgment. As such instant petition for leave to appeal has been filed.

3. Learned counsel appearing for petitioners contended that the High Court has misread the evidence available on record while making observation that neither any pleading nor any evidence is available on record to ascertain as to whether Hussaina had issued notice of the divorce to Mst. Jewni. We called upon the learned counsel for petitioners to show us the notice issued by Hussaina in terms of section 7 of the Muslim Family Laws Ordinance, 1961, to his wife Jewni but he failed to do so and stated that in fact he has relied upon the decision of the Union Council dated 3rd March, 1976. It is also an admitted fact that this document was also not proved according to law as' according to learned counsel same was tendered by the counsel. It may be noted that Issue No.5 was framed in order to resolve the controversy with regard to divorce therefore, it was incumbent upon the petitioners to have produced the decision of the Union Council in accordance with law otherwise it had no evidentiary value. Thus, under these circumstances, we are of the opinion that learned High Court has rightly remanded the case to the trial Court for recording of evidence in respect of Issue No.8, declaring that there is no necessity to prove the Issue No.5 as there is no evidence on record. Thus, for the foregoing reasons, petition is dismissed and leave declined. S.A.K./S-57/S Leave refused.