2003 PLP 125 (SCMR)

Date of hearing: 11th September, 2002. SYED DEEDAR HUSSAIN SHAH, J.‑‑‑The petitioners seek leave to appeal against the judgment of the Lahore High Court, Lahore, dated 27‑2‑2002, whereby Civil Revision No.823 of 1995 filed by the respondents was allowed, the judgment and decree of the learned Additional District Judge dated 3‑4‑1995 was set aside and the judgment and decree of the learned trial Court dated 29‑2‑1992 was restored.

2. Briefly stated that facts of the case are that on 7‑2‑1982, the legal heirs of Mst. Bhag Bhari deceased, petitioners herein, filed a suit against Mst. Alain Khatoon deceased etc., stating therein that the last male owner of the suit land was Naseer son of Muhammad, who died issueless before the independence of the country and he was survived by his mother Bhag Bhari, that the said Mst. Alam Khatoon was his sister, while the collaterals were' Waryam, the predecessor‑in‑interest of petitioners Nos.2 to 4, and Naurang, the predecessor‑in‑interest of petitioners Nos.5 to 8; that on the death of the said Naseer the land was mutated in favour of Mst. Bhag Bhari his mother as a limited owner. In para. 9 of the plaint the shares of the said heirs were also described and it was stated that the said Mst. Alain Khatoon was entitled to I/2 share in the said estate while Mst. Bhag Bhari was entitled to 1/3 and the remaining goes to the said petitioners. In para. 10 of the plaint, it was stated that it is the petitioners who are the owners in possession of the estate of Naseer and Mst. Alain Khatoon deceased has no share in the same and that she has managed to get the mutations of inheritance attested in her favour‑. With these averments, a decree was sought to the effect that the petitioners be declared to be the only heirs of Naseer. Later, the plaint was amended and relief to the extent of 1/2 share in the said estate was sought. Yet another amended plaint was filed and it was averred that the respondents/defendants Nos.2 and 3 in the suit had no title in the land and that the petitioners be declared to be exclusive owners. In their written statements the respondents took the plea that Mst. Alain Khatoon was admittedly owner of 1/2 share in the suit land i.e. the estate of Naseer and that they being the husband and daughter, respectively of the said Alam Khatoon, are the owners of the said share. Reference was also made to the previous litigation in the Family Court as well as in the High Court, whereby it was declared that Alain Khatoon is not the wife of the Bahab deceased and she is the wife of respondent No.1 and mother of respondent No.2.

3. Necessary issues were framed and evidence of the parties was recorded. The learned trial Court vide judgment dated 29‑2‑1992 partly decreed the suit of the petitioners, inasmuch, held that the petitioners are entitled, to 1/2 share of the suit land while the remaining half vested in Mst. Alain Khatoon and devolved upon the present respondents. Some directions were also issued regarding devolution of the share vesting Mst. Bhag Bhari deceased, the mother of the said Naseer, who had also died during the pendency of the suit.

4. Feeling aggrieved the petitioners filed an appeal, which was allowed by the learned Additional District Judge, Shorkot, vide judgment and decree dated 3‑4‑1995, and reversed the findings of trial Court.

5. The respondents assailed the aforesaid judgment and decree passed by the learned Additional District Judge, through a civil revision, which was allowed by the learned Lahore High Court, Lahore, vide impugned judgment dated 27‑2‑2002. Hence, this petition.

6. Khawaja Muhammad Farooq, learned Advocate Supreme Court for the petitioners, inter alia, contended that upon the death of Mst. Alain Khatoon it was not proved that Ghulam Rasool was her husband or that Mst. Kishwar Sultana was her daughter; that their half share would also revert back to the petitioners as collaterals of Muhammad and his son Naseer that the learned High Court has not considered the case in its true perspective, which has resulted in miscarriage of justice:

7. We have considered the arguments of the learned counsel for the petitioners and carefully scanned the record. We have also noticed that the parties approached the High Court through a Constitutional petition; wherein Mst. Alain Khatoon appeared before the High Court and stated that she is the wife of Ghulam Rasool. Thereafter, High Court permitted her to live with Ghulam Rasool. After referring the above statement of Mst. Alain Khatoon, the Judge Family Court rightly observed as under: Moreover, it is also borne out from the record that a copy of the judgment passed by the Judge Family Court, Shorkot, dated 22‑5‑1990, was produced in a suit for restitution of conjugal rights filed by Bahab (Abdul Wahab son of Waryam) against Mst. Alam Khatoon. Exh.D/6‑statement of Mst. Alain Khatoon defendant in the suit was recorded wherein she also stated on oath that she was married to Ghulam Rasool and Kishwar Sultana daughter was born as a result of wedlock; she further stated that she was never married to Bahab (Abdul Wahab son of Waryam. Muhammad Kabir (P.W.1) was examined before the Court, who also admitted that Mst. Alain Khatoon was second wife of Ghulam Rasool; that Kishwar Sultana was born as a result of said wedlock and further that she was living with Ghulam Rasool for the last 32 years. It is very strange to note that Wahab did not appear in the Court to give evidence. He himself appeared as a witness in a case filed by Mst. Alain Khatoon against him claiming damages for defamation, in which on oath he stated as follows:‑‑

8. In view of the above overwhelming evidence, the High Court rightly reversed the finding of the First Appellate Court, which was based on gross misreading of evidence and the same was perverse. The learned Judge in Chambers, while exercising the powers under section 115, C.P.C. rightly allowed the civil revision and set aside the judgment and decree of the First Appellate Court. The impugned judgment is based on the proper appreciation of evidence and material available on record. We do not find misreading or non‑reading of the evidence or misconstruction of facts and law.

9. For the facts, circumstances and reasons stated hereinabove we are of the considered opinion that the petition is without merit and substance, which is hereby dismissed and leave is declined. S.A.K./B‑76/S Leave refused.