2005 PLP 2947 (YLR)

Petitioners/plaintiffs, through the filing of the present revision petition, have called in question judgment and decree, dated 23-12-1997, whereby the learned Additional District Judge dismissed their appeal and maintained the judgment and decree, dated 13-5-1992, passed by the learned Civil Judge, through which, he dismissed petitioners suit for declaration with consequential relies'.

2. Mst. Sakina Bibi etc., the petitioners, on 20-3-1988, filed a suit for declaration, against the respondents, and also challenging the validity of Mutation No.23, dated 14-8-1959, (whereby, while entering said mutation of inheritance of Rehmat Ali, deceased, allottee of the land in dispute, Aziz Begum and Raiza Begum, A respondents Nos.1 and 2, were also given 7/16 shares on the basis of will, said to have been executed by Rehmat Ali, deceased) and Mutation No. 5, dated 19-7-1984, (through which respondents Nos.1 and 2 were held entitled to inherit from the estate of Mst. Sheedan, widow of Rehmat Ali). Respondents Nos.1 and 2 contested the suit by way of filing the written statements, thereby controverting the contents of the plaint and also raising the preliminary objections regarding the limitation, maintainability of the suit and estoppel etc. The learned trial Court framed seven issues, recorded the evidence of the parties and ultimately dismissed the suit, vide judgment and decree, dated 13-5-1992. Petitioner's appeal was dismissed by the learned Additional District Judge, vide judgment and decree, dated 27-12-1997, hence the present revision petition.

3. Learned counsel for the petitioners has contended that burden of proof shifted to the respondents and they were under obligation to prove that the will was properly executed, but the said respondents did not produce any evidence to prove the execution of will. He has further submitted that the will deed was not produced, the suit was within time, as the parties to the litigation are co-sharers and that under the Islamic Law, a Muslim cannot make will more than 1/3rd of his assets. He has added that in view of the above legal infirmities the impugned judgments are not sustainable in law. Conversely, the learned counsel for the respondents has submitted that concurrent findings of facts are not to be interfered by this Court in exercise of revisional jurisdiction, that some of the petitioners were present at the time of entering into mutation of inheritance (Exh.P-1) of Rehmat Ali, that the suit was clearly barred by time and that the petitioners failed to produce any evidence to prove that any fraud was committed.

4. I have examined Exh.P-1, through which the mutation of inheritance of Rehmat Ali was effected by the Revenue Authorities in the presence of Mst. Bismilla Begum and Mst. Sakina Bibi etc., who were identified by Lumberdar. It has been incorporated in the said documents, in the presence of all concerned, that according to the will of Rehmat Ali, the respondents Nos. 1 and 2 may be given the share in the property, which their father, if alive, would have inherited. So on the basis of B will and in the presence of some of the petitioners, the mutation was effected as far back as on 14-8-1959, which was implemented and took effect. Undoubtedly nobody raised any objection at the relevant time. The petitioners, although were in the knowledge of the said mutation, yet did not challenge the same for approximately 30 years and thereafter filed the suit on 20-3-1988. The petitioner acknowledged the said mutation, admitted its correctness and validity, acquiesced over the matter for approximately 30 years and did not agitate their claim for such a long period, therefore, the principles of estoppel and waiver would come into operation and now they cannot be allowed to agitate their claim after the lapse of considerable long period. It has no where been pleaded by the petitioners that the said will was incompetent, defective or suffered from legal infirmity.

5. As regards the next contention of the learned counsel for the petitioners, suffice it to say that the learned Additional District Judge has properly taken care of that contention and has held that "it is not the case of the plaintiffs/appellants that the will of the respondents Nos.1 and 2 was more than 1/3rd of the estate of Rehmat Ali which is not otherwise permissible under the Muhammadan Law of inheritance". The learned Additional District Judge has rightly held that the said will does not exceed 1/3rd of the total estate of Rehmat Ali, so the will was competent under Muhammadan Law.

6. The onus of Issue No.1 was on the petitioners, being the plaintiffs, to prove that the mutations were the result of fraud and misrepresentation, but the evidence on record would show, as has rightly been appreciated by both the Courts below, that the petitioners were not able to discharge the onus of the said issue. No issue regarding the validity, legality and correctness of will, was either asserted by the parties nor framed by the learned trial Court. The petitioners could not prove issue No.1, thus, onus could not be discharged and, therefore, it cannot be legitimately argued that onus of the said issue has been shifted to the respondents. It was, basically, the duty of the petitioners to prove that the mutations were result of fraud or misrepresentation but the petitioners could not lead any evidence to demonstrate that the impugned mutations were result of fraud, inasmuch as some of the petitioners were present at the time of the attestation of the mutations, who where identified by Lumberdar concerned. Additionally, although it has been claimed that the mutations are the result of fraud yet upon the examination of the contents of the plaint, I find that the petitioners did not give particulars of fraud in the plaint, as provided under Order VI, rule 4, C.P.C. In view whereof the contentions of the learned counsel for the petitioners have little substance.

7. The petitioners did not lead any evidence to prove that the will, on the basis of which the impugned mutation was effected, was not executed by Rehmat Ali during his life time. The learned Additional District Judge has rightly dealt with the said aspect of the case and rightly held as under:

" ..It is admitted fact on record that the father of the respondents Nos.1 and 2 namely Muhammad Yamin, the only male issue of Rehmat Ali died during life time of his father. So if the grand father of the respondents Nos.1 and 2 would have alienated the said land to respondents Nos. 1 and 2 by way of will, being the daughters of pre-deceased son, neither it was un warranted by law nor it was unnatural. The simple reason is that at the time of attestation of mutation, dated 14-8-1959, the daughters and sons of the pre-deceased son or daughter were not getting any share of estate of their grand father at the time of his death. "

8. As regards Mutation No.5, dated 19-7-1984, suffice it to say that at the time of death of Mst. Sheedan, according to section 4 of the Muslim Family Laws Ordinance, 1961, the daughters and sons of the pre-deceased son or daughter were entitled to inherit from the estate of their grand father and grand mother.

9. It is settled law that the findings on questions of fact or law recorded by the Courts of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. Reliance is placed on Muhammad Rafique v. Aamer Shahzad and others (1999 YLR 610.

10. The concurrent findings of facts were recorded by both the Courts below which are based on proper appreciation of evidence, oral and documentary, produced by the respective parties before the learned trail Court. No case of misreading and non-readings of evidence has been made out, neither any legal infirmity has been pointed out by the learned counsel even during the arguments, nor illegal exercise of jurisdiction nor failure of exercise of jurisdiction by both the Courts below has been attributed.

11. It is settled law that concurrent findings of facts, based on evidence, are not liable to be interfered in the exercise of jurisdiction under section 115, C.P.C. Reliance is placed on Abdul Rahim and another v. Mst. Janatay Bibi and others (2000 SCMR 346), Anwar Zaman and 5 others v. Bahadur Sher and others (2000 SCMR 431), Aziz Ullah Khan and others v. Gul Muhammad Khan (2000 SCMR 1647), Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and another (2000 SCMR 314), Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCMR 329), Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rashid Ahmad v. Muhammad Siddique (PLD 2002 SC 293).

12. Upshot of the above discussion is that the present revision petition is devoid of any merits, thus, the same stands dismissed with no order as to costs. M.I./5-43/L Revision dismissed.