P L D 1988 Karachi 466 (PLP)

This Revision is directed against the judgment and decrees dated 13‑10‑1971 and 25‑3‑1978 passed by the learned Civil Judge, Ghotki and the learned IIIrd Additional District Judge, Sukkur, respectively in Suit No.? of 1970 and civil Appeal No.124 of 1.971, ,respectively.

2. The brief facts leading to the filing of the above revision are that the aforesaid suit was filed by Mst. Sharma wife of Moosa, Ms. Hawa wife of Naseer and Mst. Saeedan wife of Dhani Bux against the present respondent No.l for declaration and permanent injunction. In the suit, it was alleged that one Muhammad Siddique, hereinafter referred to as the deceased, who had expired left behind 3 plaintiffs as the legal heirs. Mst. Sharma claimed herself to be the widow of the deceased, Mst. Hawa claimed herself as the mother of the deceased and Mst. Saeedan claimed herself to be the daughter of the deceased. The above suit was resisted by the respondent No.l. The learned Civil Judge on the basis of the pleadings of the parties framed 10 issues. The plaintiffs in support of the suit examined Mst. Hawa and Mst. Saeedan, plaintiffs Nos. 2 and 3, respectively, Abdul Razak, Moose and Abdul Karim, whereas the respondent No.l examined himself and one Muhammad Amin. The learned Civil Judge after hearing the parties, by his above judgment, decree dated 13‑10‑1971 held that the suit was not competent as no consequential relief was claimed. It was also held that the plaintiffs failed to prove that they were the legal heirs of the deceased. Against the above Judgment / Decree of the above aforesaid 3 plaintiffs filet. Civil Appeal No.124 of 1971, which was dismissed by the learned IIIrd Additional District Judge, Sukkur, by his aforesaid judgment‑decree dated 25‑3‑1978. The present revision has been filed by Mst. Rab Dini who claimed herself to be the daughter of 41st. Hawa, GuI Muhammad who claimed to be the son of Mst, Sharma wife of Moosa and Mst. Saeedan wife of Dhani Bux.

3. The learned counsel for the respondents have pointed out that the applicants Nos.l and 2 were not parties to the suit or the appeal and they have been impleaded without any order of this Court. The above revision was filed against the original defendant/ respondent No.l Jamaluddin and against respondents Nos.2 and 3 who have been impleaded by the applicants as the purchasers. This fact has not been agitated before the trial Court and the learned Appellate Court. 4. (a) In support of the above revision, Mr. Abdul Karim Lakhan, learned counsel for the applicants, has vehemently urged that both the Courts below have erred in holding that the suit was not competent in the absence of claiming a consequential relief. He has further submitted that even on merits the finding is contrary to the evidence on record. (b) On the other hand, M/s. Maqbool Ahmed Khan and Abdul Rehman, learned counsel for the respondents Nos. 2 and 3 have contended that the two Courts below have rightly held that the suit was not competent in the absence of claiming consequential relief and that the finding of two Courts below on fact is in accordance with evidence on record.

5. Before taking up the above contention, it may be observed that respondent No.l has died, the applicant has filed an application that Mst. Saeedan may be treated as the only legal heir left by said Jamaluddin.

6. Adverting to the first submission of the learned Court for the parties, it may be observed that if in fact the plaintiffs in the suit were legal heirs of the deceased, they Were required to claim their shares in the suit land as the consequential relief, However, instead of claiming of the above consequential relief they prayed for permanent injunction restraining the defendant from alienating and transferring the suit land. In my view, the learned two Courts below have rightly held that the absence of prayer for consequential relief, declaration simpliciter could not have been grantee in view of section 42 of the Specific Relief Act.

7. Another aspect of the matter is that Mst. Hawa who claimed to be the mother of the deceased nowhere in her deposition has stated that she was married to Naseer, father of the deceased, on the contrary she has stated that she was the wife of Ismail. The above statement of Mst. Hawa is corroborated by the statement of witness P.W. Moosa. There is no evidence to show that Mst. Sharma was the wife of the deceased. On the other hand, the evidence of applicants' witness Moosa indicates that Mst. Sharma was his wife. The testimony of the school teacher Abdul Razak who has produced the original extract from the school register Ex.35‑A in respect of Mst. Saeedan, alleged daughter of deceased, and was also not accepted by the two Courts below for the reason that there was overwriting in the register.

8. In my view, the two Courts below on the basis of the evidence on record could conclude that the plaintiffs in suit failed to prove their averments that they were the legal heirs of the deceased. The above concurrent finding of fact of the above two Courts below cannot B be interfered with in exercise of revisions jurisdiction in the absence of the same being contrary to the evidence on record or perverse, the revision has no merits. The same is dismissed with no order as) to costs. A.A. /R‑45/ K Revision dismissed.