199 SCMR2246 (PLP)

‑‑‑‑S. 8‑‑‑Constitution of Pakis an (1973), Art. 185(3)‑‑‑Agreement between parties to resolve inheritance dispute on the special oath of referee‑‑‑Referee took special oath, on basis of which plaintiff's suit was decreed‑‑‑Defendant resiling from his offer of other after the administration of oath but to no effect‑Trial Court passed decree in favour of plaintiff which was upheld by Appellate Court and by High Court in revision‑‑‑Validity‑‑‑Record showed that contrary to defendant's stand that he had resiled before administering oath, he had in fact, resiled after the administration of oath‑‑ Court record relating to such fact had been accepted by the Courts below‑‑ Counsel's affidavit contrary to such record was of no value and could not nullify concurrent judgments of Court s below‑‑‑Leave to appeal was refused in circumstances. Rana Abdul Rahim Khan Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Petitioners. Nemo for Respondent. Date of hearing: 12th January,, 1994. AJMAL MIAN, J.‑‑‑This is a petition for leave to appeal against the order dated 15‑8‑1992 passed by a learned Single Judge of the Lahore High Court in Civil Revision No. 469‑D of 1992 filed by the petitioners against the two concurrent judgments/decrees/' of the trial Court and the appellate Court dated 15‑3‑1992 and 18‑7‑1992,1 respectively, decreeing respondent's suit, dismissing the same in limine. The petitioner has, therefore, filed the present petition for leave to appeal.

2. The brief facts are that the respondent, who is the sister of the petitioners,, filed a suit for declaration that by virtue of private family partition/settlement, she was in possession of 120 Kanals 8 Marlas as one of the legal heirs of her father. It appears that when the above suit came up for hearing, the petitioner made an offer to the effect that if the respondent's husband would take special oath, he would not contest the above suit. Thereupon, the respondent's husband had taken special oath before the trial Court. It further seems that after the taking of the above oath by the respondent's husband, the petitioner attempted to resile from the above offer, which he was not permitted to do by the learned trial Court. The respondent's suit was, therefore, decreed, His appeal and revision also failed as stated hereinabove.

3. In support of the above petition, Rana Abdur Rahim Khan, learned Advocate Supreme Court appearing for the petitioners has vehemently contended that factually the petitioner had withdrawn the above offer of allowing the respondent's husband to take special oath before the special oath was taken by the respondent's husband and, therefore, the learned trial Court was not justified in decreeing the suit.

4. The above contention seems to be contrary to the record It may be stated that at page 32 of the paper‑book there is a diary sheet of the trial Court, wherein it has been stated that after the respondent's husband had taken oath, the petitioner attempted to resile. The above Court record has been accepted by the Courts below. However, the learned counsel for the petitioners, has submitted that the petitioner's Advocate had filed an affidavit contrary to the above diary. We are not inclined to nullify the concurrent findings of the Courts below on the basis of the above affidavit. Leave is refused. A.A./E‑45/S Leave refused.