1969 PLP 256 (SCMR)

Date of hearing : 5th March 1969. JUDGMENT JUDGMENT HAMOODUR RAHMAN, C. J.‑The petitioner and the respondents are all heirs of one Ali Mardan who died on the 23rd of April 1948, after the Punjab Muslim Personal Law (Shariat) Application Act, 1948 came into force. The said Ali Mardan left lands in Mouza Haryal, Bajnial and Arjan in the District of Rawalpindi. In respect of lands of villages Bajnial and Haryal the petitioner, on the 5th and 6th of June 1948, respectively, got two mutations, by way of inheritance, entered in his own name as the sole heir of the said Ali Mardan. These mutations were sanctioned by the Tehsildar on the 27th June 1948 and the 17th June 1948, respectively. With respect to the lands of village Arjan, however, mutations were made in the names of all the heirs of Ali Mardan, according to the Shariat Law, as shown in the Jamabandi for the year 1950‑51 (Exh. P. 6). The respondents filed a suit in 1957 for setting aside the muta tions of the lands in villages Bajnial and Haryal and for a decree for possession of their respective shares in those lands. The petitioner resisted the suit mainly on the ground that the respondents (Plaintiffs) were estopped from challenging these mutations as they had relinquished their rights in the said lands in his favour. The trial Court dismissed the suit but on appeal the learned District Judge of Rawalpindi took the view that there bad been no relinquishment at all and the mere fact that the respondents had not filed a suit until the 2nd September 1957, was not by itself sufficient to spell out a case for relinquishment, particularly, since the Jamabandi for village Arjan disclosed that the names of all the heirs had been mutated. The consideration of the other evidence on the record led appellate Court to come to the further conclusion that the plaintiffs in the suit had also succeeded in establishing the legation that the petitioner had obtained the impugned stations in collusion and fraud with the local Lambardar. In second appeal, a learned Single Judge of the High Court upheld the decision of the First Appellate Court. Hence this petition for leave to appeal. The main arguments advanced in support of this petition are that the finding of fraud and collusion is based on no direct evidence at all. This, however, is incorrect, for, witnesses were called in support of the plaintiffs' case in the suit and in any event, there was abundant documentary evidence to lead to the inference of collusion as found by the First Appellate Court. In a civil matter, this Court does not go into questions of quantum of evidence, particularly, where two Courts below have concurrently, found a particular question of fact and there was evidence on which those findings could be based. It is true that the question of fraud is not a pure question of fact but. in the present case, we cannot help observing that neither in the mutation records nor any other document was there ever and reference made to the alleged relinquishment. This plea of relinquishment was sought to be proved only on oral testimony which was disbelieved by the final court of facts. The High Court too was inclined to the view that that oral evidence was not convincing. The plea of an oral settlement is also not supported by any convincing evidence. If the petitioner had not taken any share in the lands of village Arjan, it might have been possible for him to urge that as a matter of family settlement he had given his mother and sisters lands in village Arjan and kept the lands of Haryal and Bainial in its own share. This, however, is not the case, for, it appears that even in village Arjan the petitioner tools his due share. Therefore, the story of the oral family settlement is also without any substance. We are of the opinion that the suit of the respondents‑was rightly allowed and there is .no substance in this petition which is, accordingly, dismissed. Leave refused.