2005 PLP 1324 (YLR)

The brief facts out of which present revision petition arises are that the petitioners filed suit for declaration with consequential relief against the respondents on 2-1-1994 before the Civil Judge Shakargarh. The contents of plaint reveal that the petitioners/plaintiffs filed a suit with the prayer that decree for declaration to the effect that inheritance Mutation No.545 dated 9-6-1952 of the property in question, inherited by the predecessor-in-interest of the respondents/defendants Nos.5 to 31, is illegal, against the law and facts and ineffective against the rights of the petitioners/plaintiffs and respondents/ defendants Nos.1 to 4 and is also the result of fraud and forgery, inasmuch as the predecessors of respondents/defendants Nos.5 to 31, were not legal heirs of late Ismail and as such, were not entitled to inherit the property of the deceased. The contents of plaint further reveal that respondents/defendants Nos.1 to 4 be declared as the legal heirs of late Ismail and as such, they are entitled to inherit the suit property and consequential relief, perpetual injunction was also prayed to the effect that respondents/defendants Nos.5 to 31 be restrained from alienating the suit-land any further on the basis of incorrect evidence on record. The contents of plaint further reveal that the suit property originally was owned by late Ismail and after whose death, inheritance Mutation No. 545 was sanctioned on 9-6-1952. According to which, land in-question was inherited by his legal heirs including Abdul Ghani, son, Gogan Bibi, Bholan Bibi, Raisham Bibi and Sahiban, as daughters. According to the contents of plaint, Mst. Gogan Bibi and Mst. Bholan Bibi were real daughters of original owner late Ismail, as such, they have been considered as legal heirs in an unlawful manner; whereas, according to the contents of plaint, legal heirs of late Ismail, are only Mst. Raisham Bibi, Mst. Sahiban Bibi, as daughters and Abdul Ghani as son. Mst. Raisham Bibi died on 7-10-1950 in the life of her father late Ismail, who expired on 30-10-1951. As such, Mst. Raisham Bibi is not entitled to inherit from her father, therefore, her name is incorrectly mentioned and considered in inheritance mutation; whereas Abdul Ghani son of original owner late Ismail, died issueless in the year 1990, therefore, his share also inherited by the petitioners/plaintiffs because, they are only survived legal heirs of Abdul Ghani, deceased. The contesting respondents filed written statement controverting the allegations levelled in the plaint. Out of pleadings of the parties, the learned trial Court framed the following issues:-- Issues:

(1) Whether Mutation No.545 dated 9-6-1952 is void, illegal and against the rights of the plaintiffs and as such liable to be cancelled? OPP (2) Whether the plaintiffs and defendants Nos.1 to 4 are entitled to the inheritance of deceased Ismail? OPP (3) Whether the plaintiffs have got no cause of action OPD (4) Whether the plaintiff have not come to this Court with clean hands? OPD (5) Whether the suit is false, frivolous, baseless and defendants Nos.27 to 30 are entitled to special costs under section 35-A, C.P.C.? OPD (6) Whether the suit is liable to be dismissed due to non-joinder of necessary parties? OPD (7) Whether the plaintiffs are estopped to file this suit due to their own words and conduct? OPD-31 (8) Whether the suit is time-barred and hence, liable to be dismissed under section 11 of C.P.C.? OPD-31 (9) Whether defendant No.31 is bona fide purchaser of suit property? OPD-31 (10) Relief. The learned trial Court dismissed the suit vide judgment and decree dated 29-9-2000. The petitioners/plaintiffs being aggrieved preferred an appeal before the learned Additional District Judge, Shakhargarh, who also dismissed the appeal vide judgment and decree dated 4-12-2004, hence the present revision petition.

2. The learned counsel of the petitioners submits that the learned trial Court decided the issue of limitation in favour of the petitioners; whereas first Appellate Court reversed the same without adverting to the reasoning of learned trial Court qua the limitation of suit of the petitioners. He further submits that both the Courts below misconstructed the documentary evidence and decided the case on non-suited the petitioners by misreading and non-reading of the record. He further submits that both the Courts below have ignored the evidence on record especially documentary evidence produced by the petitioners in the shape of Exh.P.3 and Exh. D-6. According to which, Mst. Gogan and Mst. Sahiban are not legal heirs of late Ismail but only Mst. Raisham and Abdul Ghani are legal heirs of late Ismail. He further submits that Mst. Raisham Bibi died in the life time of her father, therefore, she was not entitled of any share from the property of her father in accordance with Injunction of Islam.

3. I have given my anxious consideration to the contention of learned counsel of the petitioners and perused the record.

4. It is settled principle of law that first Appellate Court has all the powers to re-appraisal of evidence while deciding appeal under section 96 of C.P.C. The Mutation of Inheritance No.545 of original owner late Ismail was sanctioned in favour of legal heirs on 9-6-1952. The petitioners filed the suit for challenging the vires of mutation of inheritance by filing the suit, out of which present revision arises on 2-1-1994, therefore, first Appellate Court was justified to hold that the suit of the petitioners/plaintiffs was time-barred. It is also admitted fact that the land in-question/disputed property was sold by heirs of Mst. Raisham Bibi to respondent defendant No.31 on 9-9-1993. The petitioners/plaintiffs admittedly have joint Khata with respondents/defendants. The petitioners/plaintiffs filed three pre-emption suits against the said sale. The question of law in such circumstances, has already been decided by the Honourable Court in "Haji Ghulam Rasool's case" PLD 1971 SC 376 and laid down the following principle:-- "It is true that entries in the mutation registers are by themselves not conclusive evidence of facts which they purport to record but they are, nevertheless, not an "unimportant part of the testimony as to a fact which is available," as observed by the Judicial Committee in the case of "Nageshar Bakhsh Singh v. Mst. Ganesh" AIR 1920 PC.

46. The weight and importance to be attached to them, is in no way, diminished by the fact that they have been allowed by those who were going to be adversely affected by them to remain unaltered for such a large number of years, even though they were aware of the entries in the record. The doctrine of estoppel is not confined to the matters dealt with under section 115 of the Evidence Act, for as pointed out by Garth, C.J. in the case of Ganges Manufacturing Co. v. Sourajmull (ILT 5 Cal. 669) "Estoppels in the sense in which the term is used in the English legal phraseology are matters of infinite variety and are by no means confined to the subjects dealt with in Chapter VIII of the Evidence Act." It has been defined in Halsbury's laws of England (2nd Edn.), Vol. 13, "as a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability". It is in this sense that it has often been held that even as a rule of evidence or pleading a party should not be allowed to approbate and reprobate. This principle was acted upon by the Judicial Committee in the case of "Lakshmana Goundan v. Subramania Aiyar" AIR 1924 PC

44. The aforesaid proposition of law is reaffirmed by the Honourable Supreme Court in "Mian Ghulam Fareed's case" 1993 SCMR 643 .

5. It is also admitted fact that both the Courts below have held that Mutation No.545 was not proved to be fraudulent and thus, it is question of fact on which both the Courts below have rightly come to the correct conclusion to declare the aforesaid mutation as genuine which is in consonance with the law laid down by the Honourable Supreme Court in "Mst. Nasreen Bibi's case" 1990 SCMR

400. In view of the aforesaid circumstances, it does not lie in the mouth of the petitioners/plaintiffs to say after such a considerable period more than 42 years that inheritance mutation was fictitious and this fact was duly noted by the Courts below. It is also settled principle of law that officials acts are presumed to have properly and regularly been performed in view of Article 129(e) of Qanun-e-Shahadat Order, 1984, as per law laid down by the Division Bench of this Court in "Muhammad Sadiq's case" 1990 CLC

533. It is pertinent to mention here that the learned trial Court after proper reappraisal of evidence held that Mst. Raisham Bibi was wife of Din Muhammad, who was one of the daughters of late Ismail but taking benefit under the cover of impersonation, the petitioners/plaintiffs have tried to base their claim qua the property in-question on the basis of similarity of names of two women. The learned trial Court accepted that Exh.D/1 is genuine document and observed on the basis of this document that Mst. Raisham Bibi mentioned in Exh.D./1 is the real legal heirs survived her deceased father, whereas Exh.P-4 does not relate to the genuine/real Raisham Bibi, which relates to second Mst. Raisham Bibi, who was not real daughter of late Ismail. These findings were upheld after reappraisal of evidence on record by the first Appellate Court.

6. The first Appellate Court after re-appraisal of evidence has given findings against the petitioners. It is admitted fact that both the Courts below have given concurrent findings of the facts against the petitioners and this Court has very limited jurisdiction to disturb the concurrent findings of the Courts below while exercising power under section 115 of C.P.C., unless and until the same is the result of misreading and non-reading of record or both the Courts below have decided the same in violation of principle laid down by the Superior Courts. The Privy Council has also laid down parameters to interfere in the findings of the Courts below while exercising power under section 115 of C.P.C. in "N.S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras" PLD 1949 PC

26. The relevant observation is as follow:-- "This is section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law." The judgment of the Privy Council was considered and relied upon by this Court in Board of Intermediate and Secondary Education Lahore v. Syed Khalid Mehmood 1985 CLC 657.

7. It is pertinent to mention here that the judgment of this Court is upheld by the Honourable Supreme Court in C.P. No.1146 of 1984 vide judgment dated 31-3-1985 which was reaffirmed and approved by the Honourable Supreme Court in Board of Intermediate and Secondary Education, Lahore v. Ghulam Qadir PLD 1988 SC

625. The learned counsel of the petitioners failed to bring the case within the principle prescribed by Privy Council in the aforesaid judgment. The learned counsel of the petitioners also failed to point out any piece of evidence, which was non-read and misread by both the Courts below, therefore, I am not inclined to interfere in the concurrent findings of the facts of the Courts below, which have been given after proper appreciation of evidence on record. I myself reappraised the evidence and I also do not find any infirmity and illegality in the findings of Courts below as documents in-question were considered by both the Courts below and have given concurrent findings of facts after reappraisal of evidence on record after judicial application of mind. The learned counsel of the petitioners failed to bring the case within parameters prescribed by Privy Council in the aforesaid judgment. In view of what has been discussed above, this revision petition has no merit and the same is dismissed. S.A.K./D-30/L Revision dismissed.