2000SCMR1588 (PLP)

CH. MUHAMMAD ARIF, J.

In this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 challenge has been made to judgment dated 29-6-1998 passed by- a learned Judge in Chambers of the Lahore High Court, Lahore whereby Civil Revision No.2373 of 1986, brought by the petitioner against the judgment dated 12-10-1986 of a learned Additional District Judge, Sheikhupura was dismissed.

2. The background is that the dispute between the parties revolves around the inheritance of one Muhammad Bashir. It was vide Mutation No. 15 attested on 30-4-1953 (Exh.B/1) that the estate. of Muhammad Bashir devolved upon (1) Mst. Hashmat Bibi as his widow, (2) Mst. Hanifan Bibi, (3) Mst. Umran Bibi, and (4) Mst. Jamilan Bibi as daughters. Vide Mutation No.263 attested on 9-3-1967, the three daughters sold their share to Shah Muhammad petitioner No. l while the widow gifted her share to Muhammad Hanif, respondent No.3 herein the son-in-law of Mst. Hushmat Bibi.

3. Mst. Jamila Bibi filed a suit for declaration that she was real sister of deceased-Muhammad Bashir and, therefore, entitled to 5/24 share of his estate. Petitioner-Shah Muhammad contested the suit with the averment that Mst.,Haliman Bibi was in fact daughter of Nabi Bakbsh who was an uncle of deceased-Muhammad Bashir. Necessary issues were framed in the suit and, after trial, the trial Court held that`. (1) the suit for bare declaration was not competent (Issue No. 1), (2) the valuation was 'Wrong (Issue No.2), (3) Mst. Haliman Bibi failed to establish that she is a sister of deceased Bashir Ahmad (Issue No.4) and (4) the suit was not within time (Issue No.3). The result was that the suit was dismissed on 23-1-1985.

4. On appeal by respondent-Mst. Haliman Bibi, a learned Additional District Judge, Sheikhupura, after reappraising the entire evidence found that: (1) Mst. Haliman bibi was the sister of deceased-Bashir Ahmad, and (2) since she was a co-sharer, the form of the suit was in order. As the issue of limitation, decided in favour of the plaintiff by the trial Court, was not agitated before the Appellate forum, therefore, the appeal filed by Mst. Haliman Bibi was allowed vide its judgment and decree dated 10-12-1986.

5. Shah Muhammad-petitioner No. l did not succeed in his Civil Revision No.2373 of 1986 against the judgment of the learned Additional District Judge, Sheikhupura which was dismissed by the learned Judge in Chambers through the impugned judgment dated 29-6-1998 as below: "

6. I have considered the submission made by the learned counsel. As far as, the question of limitation is concerned, in the circumstances, it was a mixed question of law and fact and having not been pressed before the learned first Appellate Court, could not be agitated before this Court. It may, however, be noted that on the death of Bashir Ahmad, share of the plaintiff from the estate of Bashir Ahmad' deceased instantly devolved upon her and, therefore, she became a co-sharer with the three daughters and a widow of Bashir Ahmad deceased. The vendee from the three daughters and the donee from the widow only stepped into their shoes not affecting the position of Mst. Haliman Bibi as a co-sharer in the property. I may add that the igors of law of limitation have been softened by the rule laid down in Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Viewed from this angel also, the question of limitation becomes insignificant.

7. As far as the relationship of Mst. Haliman Bibi with Bashir Ahmad is concerned, suffice is to say that it has been reached by the learned first Appellate Court on re-appraisal of the evidence. It has relied upon the admission in the written statement made by Mst. Hanifan Bibi the daughter, Mst. Hashmat Bibi, the widow of the deceased and Muhammad Hanif, the donee. After alienation made by the daughters and the widow they had not been left with any interest in the property. Therefore, their admission was of no consequence. Muhammad Hanif was the donee and his admission which was against his interest could not be ignored. It may also be noted that submission of a co-plaintiff or a co-defendant does not bind the other but in this case apart from the admission of Muhammad Hanif, direct evidence is forthcoming from P.W.1 and P.W.2 who are closely related to Bashir Ahmad deceased. Question of relationship is essentially a question of fact which stands concluded by the finding of fact arrived at by the learned first Appellate Court after appraisal of the evidence. The petitioner has, therefore, no merit and is, accordingly, dismissed. No order as to costs."

7. Mr. Ch. Ghulam Nabi Bhatti, learned Advocate Supreme Court appearing in support of this petition, has simply contended that the findings of the trial Court that Mst. Haliman Babi could not establish herself to be the sister of Bashir Ahmad, did not call for any interference therewith. He was of the view that plaintiff-Mst. Haliman Bibi's statement to the effect that ......is sufficient to disentitle her to inherit deceased-Bahsir Ahmad.

8. We are afraid the above excerpt from the examination-in-chief of plaintiff-Mst. Haliman Bibi does not help the petitioners when read in conjunction with her first sentence that: and the four other sentences following the above quoted excerpt that:

9. Further, a careful perusal of the impugned judgment shows that the learned Judge in Chambers upheld the findings of the Ist Appellate Court on A the question of relationship of Mst. Haliman Bibi with Bashir Ahmad on account of admission in the written statement made by (i) Mst. Hanifan Bibi; (ii) Mst. Hashmat Bibi and (iii) Muhammad Hanif by observing that: "After alienation made by the daughters and the widow they had not been left with any interest in the property, therefore their admission was of no consequence Muhammad Hanif was the donee and his admission which was _against his own interest could not be granted. It may also be noted that admission of a co-plaintiff or a co-defendent does not bind the other but in this case apart from the admission of Muhammad Hanif. direct evidence is A _forthcoming from P W 1 and P W 2 who are closely related to Bashir Ahmad deceased" Question of relationship, is essentially a question of fact which stands concluded by the finding of fact arrived at by the learned first Appellate Court after appraisal of the evidence..." (Underlining is fort emphasis).

10. It is not the case of. the petitioners that the learned Judge in Chambers was not possessed of the jurisdiction to decline to interfere with the judgment of the 1st Appellate Court while rendering the impugned judgment under section 115, C.P.C.

11. No other point was urged.

12. Resultantly, this petition is dismissed and leave refused. M.B.A./S-17/S Petition dismissed.