2004 PLP 1001 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 seeking leave to appeal has been preferred against the judgment dated 16-7-1999 passed by a learned Single Judge in a civil revision arising out of suit for declaration. Upon death of Muhammad Yasin, Mutation of inheritance relating to the land measuring 470 Kanals, 6 Marlas owned by him was sanctioned on 28-8-1979 in the name of Ghulam Muhammad, Nazir Ahmed, Mst. Rasulan and Mst. Fatima, sons and daughters of Yasin and Ghulam Ali son of Mst. Khadija daughter of Yasin. The petitioners filed a suit for declaration to the effect that they were the sole legal heirs of Muhammad Yasin deceased and Ghulam Ali respondent herein was not entitled to inherit any share in his estate. They also sought mandatory injunction against respondent not to claim any right in the property as consequential relief. The following proceedings were recorded by the Assistant Collector at the time of sanctioning the mutation:-- The suit was contested by the respondent and the learned trial Judge in the light of the pleadings of the parties framed the following two issues on merits:-- "(1) whether Mst. Khadija was any daughter of Yasin deceased and if proved, whether defendant was her son? OPD (2) If Issue No.1 is proved whether the defendant is entitled to inherit the estate of Yasin deceased?" The parties brought evidence in support of their respective stand and the learned trial Judge having given verdict on these issues in favour of the petitioners, decreed the suit vide judgment dated 29-7-1981. The respondent challenged the decree in appeal and learned Additional District Judge while dismissing the appeal vide judgment dated 11-1-1984 maintained the decree. The respondent then filed a civil revision in the Lahore High Court and a learned Single Judge while reversing the findings of the two Courts on the issue relating to the relationship of Mst. Khadija with Muhammad Yasin held that Ghulam Ali respondent would inherit 1/7th share in the estate of Muhammad Yasin deceased. The petitioners through this petition have sought leave to appeal against the judgment of the High Court mainly on the ground that concurrent finding of fact was not liable to be disturbed by the High Court in its revisional jurisdiction. The learned counsel for the petitioners in support of this petition has urged that no independent person having special knowledge of relationship of Mst. Khadija with Yasin was produced by the respondent and that with the exclusion of oral evidence, the pedigree table prepared by the Patwari of his own would not be an admissible evidence to establish the relationship of the two deceased. Secondly, learned counsel argued that concurrent finding of fact of two Courts based on sound reason has been reversed by the High Court in the civil revision through reappraisal of evidence which was beyond the scope of revisional jurisdiction and thus the judgment of High Court would be suffering from serious illegality. The learned counsel added that the controversial question of fact relating to the right of respondent to inherit the property of Yasin made by the Court of first instance and maintained by the Appellate Court was not suffering from any defect of misreading or non-reading of evidence, therefore, the High Court was not justified to disturb the concurrent judgment mainly for the reason that another view of the evidence was possible. The learned counsel however, has not denied that under section 4 of the Muslim Family Law Ordinance, 1961, the children of predeceased daughter and son were entitled to inherit share from the property of predecessor of the parties. The pivotal issue for determination would-be whether Mst. Khadija was daughter of Yasin or not. The parties have placed reliance on oral evidence in respect of their respective stances and the witnesses of both sides have claimed special knowledge of relationship of Yasin and Mst: Khadija inter se. The only documentary evidence brought on record by the respondent was pedigree table which was prepared by the concerned Patwari on the instructions of Nazir. Ahmed, one of plaintiffs/petitioners. The mutation was sanctioned by the Assistant Collector in the public meeting after attending the objection of petitioners relating to the entitlement of respondent to inherit the estate of Yasin. The petitioners have not challenged the correctness of the proceeding recorded by the Assistant Collector and therefore, the presumption would be that factual position narrated in the order of Assistant Collector recorded on the mutation was correct. The averments of the plaint would show that the petitioners pleaded in contradiction by saying in para 3 that Mst. Khadija was not daughter of Yasin and that the name of mother of Ghulam Ali was Mst. Dulan and in the next para it was stated that Mst. Khadija being pre-deceased daughter of Muhammad Yasin, the respondent would not inherit share in property of Yasin through her mother. The learned Judge in chambers in the High Court having examined the evidence in detail concluded that the two Courts were' misled in coming to the conclusion that Mst. Khadija was not daughter of Yasin' and their findings on the issue were suffering from the serious defect of misreading and non-reading of evidence. It is settled principle of law that no sanctity can be attached with the concurrent finding of fact if it is found suffering from the defect of misreading and non-reading of evidence and there is no impediment for the High Court to correct such an error and illegality in the revisional jurisdiction. The learned Judge in the High Court having made through scrutiny of the record concluded as under:-- "

17. To sum up, the conclusions to be drawn from the above discussion are that (i) the testimony of Khan Muhammad, Patwari D.W.1 has been wrongly disregarded by the two Courts below and the same has also been misread by the lower Appellate Court; (ii) the evidentiary value of Exh.D.1 has been illegally ignored; (iii) Ghulam Ali's evidence .of conduct to prove his relationship with Yasin has been omitted from consideration in violation of section SO of the Evidence Act and (iv) the lower Appellate Court has based its decision on material which does not form part of the record. In committing the foregoing errors, the Courts below have acted in the exercise of their jurisdiction illegally and with material irregularity. The findings of the two Courts below, therefore, are subject to correction in the exercise of revisional jurisdiction. I, therefore, have no hesitation in reversing the findings of the two Courts below and in holding that Issue No.1 stood proved on the record in favour of Ghulam Ali petitioner/defendant.

18. I next come to Issue No.2. The respondents had in their suit alleged that Ghulam Ali would not be entitled to inheritance in the estate of Yasin, even if Issue No. 1 was to be decided in favour of Ghulam Ali. This averment was based on a misconception as to the provisions of section 4 of the Muslim Family Laws Ordinance. The said law stipulates that the children of a pre-deceased son or daughter of a propositus would be entitled to inheritance in place of such pre-deceased son or daughter. The trial Court, therefore, rightly held that Ghulam Ali would inherit 1/7th share in the estate of Yasin, if Issue No.1 was decided in his favour. In the present proceedings, learned counsel for the respondents did not, indeed could not, dispute the legal position set out in the judgment of the trial Court.

19. In view of the above discussion, this revision petition is accepted and the judgment and decree of the trial Court dated 29-7-1981 and that of the lower Appellate Court dated 11-1-1983 are set aside. As a consequence, the suit filed by the respondents is dismissed with costs throughout." The contention of the learned counsel that the High Court formed a contrary view of the matter through re-appraisal of evidence, is not supported by the record. We having heard the learned counsel for the petitioners and perused the record, find that the view taken by the High Court on the controversial question of fact was not open to any exception and are of the considered view that High Court has committed no error in coming to the conclusion that Mst. Khadija was daughter of Yasin. The initial onus of proving relationship of Khadija with Yasin was satisfactorily discharged by the respondent and the petitioners have not been able to bring on record any convincing evidence in rebuttal. We have not been able to find out any legal flaw in the exercise of revisional jurisdiction by the High Court in the matter and further no question of law of public importance is involved in this petition for determination by this Court. The mere fact that the concurrent finding of the two Courts on a question of fact has been reversed by the learned Judge in the High Court in the revisional jurisdiction is not a valid ground for interference by this Court. For the foregoing reasons, this petition fails and is accordingly dismissed. Leave is refused. S.A.K./G-139/S Leave refused.