P L D 1957 (W (PLP)

MUHAMMAD SHAFI, J.‑--The facts of the case are given in the order, dated the 14th of the December 1953 of the Division Bench of the defunct Court of the Judicial Commissioner, of which one of us was a party and also wrote the judgment. By this order, the Court of the Judicial Commissioner upheld on appeal by one Muhammad Isa Khan, it defendant, in the case; the judgment of Mr. Abdullah Jan Mirza, Senior Sub-Judge, Mardan, dated the 28th of March 1951, whereby Mst. Rekhmina's suit for possession of her father's property i.e., 7/64th share of land measuring 1220 Kanals 19 Marlas with abadi on it, situated in the area of Palo Dheri, Hamza Kot, Kattakhat, Chine, and Jhungara villages of Tehsil Mardan, and 7/64th share of residential property situated in the above villages, and village Jalil, was decreed with costs. Muhammad Isa Khan died during the pendency of the appeal and his representatives Mst. Khalida Adib Khanam, Himay tullah Khan, and Mst. Saeeda Begum, were brought upon the record. On the 26th of February 1954, the aforementioned legal representatives of Muhammad Isa Khan, put in a review petition under Order XLVII, rule, I of the Civil P. C., for the review of the judgment and decree of the Judicial Commis sioner's Court mentioned above, with the prayer that the suit of the plaintiffs be dismissed with costs in respect of 7/384th share in both the agricultural property and residential property described in Schedules A & B respectively, with costs throughout. The grounds of review were as under:‑ "(1) Mst. Rekhmina plaintiff had pre‑deceased Mst. Feroza her mother, Mst. Feroza, therefore, had inherited 1/6th share out of 7/64th share equal to 7/384th share, in the entire property in suit from Mst. Rekhmina plaintiff. This fact was admitted in the application dated 13th October 1947, sub mitted by Shah Pasand Khan on behalf of the plaintiffs printed at No. 30 on page 25 of the Print Book of the appeal. (2) The learned Senior Sub‑Judge, Mardan, in his order dated 13th October 1947, printed at No. 31 on pages 25 and 26 of the same Book, had also excluded this share of Mts. Feroza inherited by her from Mst. Rekhmina plaintiff. (3) There is thus an error apparent on the record in not excluding 7/384th share from 7/64th share originally claimed by Mst. Rekhmina plaintiff" and in granting a decree of 7/64th share to the plaintiffs instead of 35/384th share in the property in suit." It was prayed that on tile acceptance of tire review petition, the decree be amended in respect of 35/384th share in favour of the plaintiffs instead of 7/64th share, and the suit be dismissed in respect of 7/384th share with costs throughout. We accepted the review petition holding that there was an error apparent oil the face of the record, because there could be no doubt that Mst. Rekhmina pre‑deceased her mother, and as a result of that the share of the legal repre sentatives of Mst. Rekhmina, in the suit property was reduced by 1/6th of 7/64th i.e. 784th shale. This was even conceded by the plaintiffs. Side by side with this review petition, an application was made by the same Khalida Adib Khanam etc., that they should be given a certificate of fitness of the case for appeal to the Federal Court of Pakistan, but after we had accepted the review petition, it was agreed by the learned counsel appearing for the parties, that the old decree, having been substituted by a, new one, the application had become infructuous. The petitioner, however, reserved their right, if so desired, and if so advised, to make another application for the grant of a certificate of fitness of the case for appeal to the Federal Court of Pakistan from the substituted judgment and decree of the Judicial Commissioner's Court. Mst. Khalida Adib Khanam and her two minor children have now made an application for the grant of the certificate of fitness of the case under section 109 and 110 of the Civil P. C., for appeal against the reviewed decree to the Federal Court of Pakistan, which has now been substituted by the Supreme Court of Pakistan. The only question which has been agitated before us is that the judgment and decree of this Court does not conform with the decision of the Court immediately below it, and therefore, the petitioners, as a matter of right, are entitled to a certificate contemplated by law. It has not been alleged much less shown, that any substantial question of law within the meaning of the last paragraph of section 110 of the Civil P. C. is involved in the appeal. The variation in the decree as would be clear from the narration of the facts given above, was made in the review application by Mst. Khalida Adib Khanam etc. and this variation was obviously in their favour. They do not want to go up on appeal to the Supreme Court against the judgment as reviewed, but they wish to go up on appeal against that part of the judgment and decree which is of affirmance. It has been held in a series of cases that where an appeal to the High Court relates to different items and the appeal is accepted with regard to some of those items and rejected with regard to the remaining one; and the appellant proposes to appeal to the Supreme Court from such remaining items, then the decree of the High Court cannot be treated qua those items as one of affirmance for the purposes of section 110 of the Civil P. C. In Mst. Shehzadi Bi v. Mst. Rehmat Bi and others (A I R 1937 Lah. 761), it was held that it would be anomalous to grant leave to appeal to His Majesty in Council to an applicant or matters in which a High Court has concurred with the trial Court on the mere ground that on other matters the High Court has modified the decree of the trial Court but in favour of the applicant. In following this view their Lordships of the Lahore High Court followed A I R 1935, Cal. 146 and A I R 1923 Mad.

30. Again the Oudh Chief Court in case Kuer Rajendra Bahadur Singh v. Hon'ble Justice Kuer Dalip Singh (A I R 1943 Oudh 262) held that whether the judgment and decree of the Chief Court in effect affirms the decision of the Court below, because that decision has been varied only to rectify certain obvious errors committed by that Court, these errors not being disputed by the petitioner and the appeal which it is desired to prefer to His Majesty in Council in no way ques tioning them. Extensive case law was preferred. In a Full Bench of the Lahore High Court in Sheikh Haji Wahid‑ud‑Din v. Lala Makhan Lal and another (A I R 1944 Lah. 458), held that for the purposes of section 110 a decree or order to be appealed from, where it partly maintains the decision of the Court immediately below and partly reverses it, is deemed to be one of affirmance when the subject‑matter of the appeal to His Majesty in Council is confined only to that part of the decree or order which affirms the decision of the Court below on that matter. All these authorities clearly apply to the present case. The slight variation which was made in the judgment, was made at the instance of the petitioners and in their interest. The variation was made on account of the fact that an error on the face of the record had been made by the learned trial Court. With regard to all other matters the Judgment of this Court was that of affirmance of the lower Court's judgment. Under the circumstances we do not think that the petitioners are, as a matter of right entitled to get a certificate. The petition is dismissed with costs. Pleader's fee Rs.

50. A. H. Petition dismissed.