2004 PLP 704 (SCMR)

KHALIL-UR-REHMAN RAMDAY, J.

This petition is directed against a judgment dated 12-3-2001 passed by the Lahore High Court in Civil Revision No.243 of 2001 whereby the appellate judgment passed by a learned Additional District Judge at Lahore which had set aside the trial Court judgment dated 23-5-1998 dismissing the suit of the present respondents, had been maintained.

2. One Siraj Din owned 45 Kanals and 16 Marlas of land situated in Mauza Taqi Pur of Tehsil Lahore Cantt. He died in the year, 1966 and his said land was then mutated in favour of his widow, namely, Mst. Barkat Bibi and his two sons, namely, Muhammad Din and Muhammad Rafiq vide Mutation No.346 dated 30-11-1966.

3. The present respondent filed a suit in the Court of learned Senior Civil Judge at Lahore on 30-7-1995 submitting that they were the heirs of one Mst. Zainab Bibi. They claimed that the said Mst. Zainab Bibi was a daughter of the above mentioned Sira Din and that it was through sheer fraud and misrepresentation that her two brothers had kept her out of the inheritance of her said father. It had consequently been prayed that a decree be passed to favour of the plaintiffs-respondents an 1 against the petitioners-defendants declaring that the said Mst. Zainab Bibi was a daughter of the said Siraj Din; that the said Mst. Zainab Bibi was entitled to inherit the said estate of Sirai Din to the extent of her share; that Mutation No. 346 dated 30-11-1966 which envisaged transfer of land only to the widow and two sons of Siraj Din by way of inheritance was based on fraud and misrepresentation and further that the said mutation was in fact against the rights of the plaintiffs-respondents. Through his judgment dated 23-5-1998 a learned Civil Judge at Lahore dismissed the said suit. The plaintiffs then impugned the said judgment dated 23-5-1998 before the learned District Judge of Lahore by way of an appeal which appeal was allowed through a judgment dated 19-11-2001 of a learned Additional District Judge at Lahore. The defendants then approached the Lahore High Court with the above mentioned civil revision which has since been dismissed through the above mentioned judgment dated 12-3-2001. Hence this petition by the defendants.

4. We have heard the learned counsel for the petitioners at some length and have examined the record with his assistance.

5. It had been claimed through para. 3 of the plaint that Siraj Din son of Nabi Bukhsh had died in the year 1966 and that he had left behind his widow, namely, Mst. Barkat Bibi, two sons, namely, Muhammad Din and Muhammad Rafiq and a daughter, namely Mst. Zainab Bibi. The pedigree-table of said Siraj Din was also drawn in the said paragraph. The petitioners-defendants replied the said averments through their written statement in the following terms:-- "

3. Admitted. Correct. " The concurrent finding of the learned Appellate and the Honourable revisional Court that in view of this judicial admission through the written statement no issue was required to be struck and no further proof of this question was warranted from the plaintiff was a perfectly valid finding. It had been further found by the Honourable High Court that the plea that Mst. Zainab Bibi was a step-daughter of Siraj Din had not ever been raised and through the pleading and thus the defendants-petitioners could not be allowed to set up a case which had never been pleaded through the written statement. The Honourable High Court was thus right in holding that the finding of the learned trial Court that the plaintiffs had not been able to prove that Mst. Zainab Bibi was a daughter of Siraj Din was a finding recorded in complete ignorance of the above noticed judicial admission of the defendants. The learned Judge in Chamber also took notice of the admission made by Muhammad Aslam (D.W.1) to the effect that the plaintiffs were entitled to the share in the suit-land. Inheritance of her share by Mst. Zainab Bibi from the estate of Mst. Barkat Bibi was a further factor which had been rightly relied upon by the High Court in reaching the conclusion that Mst. Zainab Bibi was a daughter of Siraj Din and had been wrongly kept out of his inheritance. The conclusions reached by the High Court on the question of mutation by finding that having become a co-sharer in the said land alongwith the defendants the question of limitation running against the plaintiffs did not arise, is also a valid conclusion.

6. Having thus examined all aspects of the matter we are of the view that no exception could be taken to the concurrent findings reached by the learned Appellate as well as the Honourable revisional Court.

7. This petition is, therefore, dismissed. Leave refused. S.A.K./M-26/S Leave refused.