P L D 2006 Supreme Court 444 (PLP)

JAVED IQBAL, J

This petition for leave to appeal is directed against the judgment dated 31-5-2004 whereby the revision petition preferred on behalf of petitioners has been dismissed.

2. Precisely stated facts of the case are that "Fazal Din/original right-holder was owner in possession of 286 Kanals, 6 Marlas of land in Revenue Estate Chak No.282/RB known as Abdullahpur Collar, Tehsil and District Sheikhupura. On his demise he was survived by Mst. Hussain Bibi widiw, Bulanda brother, Mst. Akki and Amir Bibi as sisters. The legacy of Fazal Din was mutated in favour of Mst. Hussain Bibi vide Mutation No.192 which was attested on 26-2-1946 as a limited owner. Bulanda filed a suit, seeking declaration that the property had devolved Mst. Hussain Bibi for the purposes of maintenance and she was not absolute owner of the same. This suit was filed somewhere in 1958 and during its proceedings, .the case was compromised and Mst. Hussain Bibi was given 82 Kanals, 6 Marlas while Bulanda was given 20 kanals, 5 marlas of land left by Fazal Din. However, this was not the end of the matter. The heirs of Mst. Akki and Amir Bibi came to the scene of litigation, as they filed a suit for declaration that the consent decree dated 19-11-1958 was collusive and was not binding upon them and so it be set aside. This suit was contested and was finally decreed on 27-11-1959. The appeal filed by the heirs of Bulanda was dismissed by the appellate court on 16-10-1978. It is not disputed between the parties that, successor's of Bulanda could not succeed before this Court as well as the Honourable Supreme Court. Another circumstance, which is worth nothing, is that during the pendency of the RFA, before this Court, Mst. Hussain Bibi gifted away her share of 82 Kanals, 6 Marlas which came to her by compromise decree dated 19-12-1958 to one Mst. Sharifan Bibi who was her adopted daughter. Then the parties made arrangement to get this gift deed confirmed through the court and so a Mutation No.314 was attested on 26-2-1965. The consent decree was passed on 9-4-1963. Mst. Hussain Bibi died on 31-12-1970. This was the launching point for the present litigation. Sardar and others herein petitioners, who are legal heirs of Bulanda got Mutation No.442 attested on 14-5-1983. Feeling dissatisfied Mst. Sharifan Bibi then filed an appeal which was accepted and the case was remanded. Pursuant to it, again the Revenue Officer repeated the same order and the same was again remanded. It will be futile to note that this litigation has no bearing on the case in hand, except that the A.C. was directed to approach the Civil Court. The Civil Court maintained the first mutation. Against this appeal and revision failed up to the Revenue hierarchy and the Board of Revenue ultimately passed the order dated 3-6-1989. In this factual background, Sardar and 11 others instituted a suit for declaration to the effect that they were owners in possession of 82 Kanals, 6 Marlas which fell to the share of Mst. Hussain Bibi as they were the legal heirs of Fazal Din and the widow being the limited owner, had no right to gift this property. The suit was contested, by Mst. Sharifan Bibi, respondent No.1 being defendant in the suit by filing her written statement wherein she besides raising certain preliminary objections regarding maintainability of the suit, jurisdiction of the civil court, estoppel against the petitioners, res judicata, cause of action, valuation of the suit for the purposes of court-fee and jurisdiction, limitation and that suit is not maintainable under Order XXIII C.P.C. On merits it was pleaded that under a compromise, specific Khasra numbers were given to Mst. Hussain Bibi by the predecessor-in-interest of the petitioners and Mst. Hussain Bibi was admitted was a perfect owner of the land so given to her. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter, after doing the needful, vide his judgment and decree dated 13-3-1993 dismissed the suit of the petitioners." Being aggrieved an appeal was preferred by the which was dismissed by means of order dated 1-6-1994 by the learned Additional District Judge which was assailed by way of revision which met the same fate vide judgment impugned, hence this petition.

3. Mr. Saleem A. Rehman, learned Advocate Supreme Court entered appearance on behalf of petitioners and pointedly asked at the outset that how the petitioners could get any share from the gifted property restricted to 1/4th Shari'a share of Mst. Hussain Bibi. The learned Advocate Supreme Court on behalf of petitioners while conceding that it could not have been done simultaneously urged with vehemence that Mst. Hussain Bibi got more than 1/4th share and the petitioners are claimant for the excessive land got by Mst. Hussain Bibi as a result of wrong calculation. It is worth mentioning that the plea of "wrong calculation" has been taken after lapse of a few decades that too without any concrete base. This specific point was never agitated before any forum available in the hierarchy of Revenue laws. In fact it was never the case of petitioners that they were deprived of their legal share as excessive land was devolved upon Mst. Hussain Bibi pursuant to the gift. It transpired from the scrutiny of record that the case of petitioners before the High Court was that the learned trial court had not framed the proper issues and moreso the evidence could not be appreciated in its true perspective which resulted in serious miscarriage of justice. It is amazing that new plea press into service even does not find mention in the memorandum of petition for leave to appeal. It is well-settled by now that " a point which as not been urged before the lower court and is not mentioned in petition for leave to appeal cannot be allowed to be raised at the hearing of the petition". In this regard we are fortified by the dictum laid down in case of Muhammad Ibrahim v. Allah Bakhsh (1968 SCMR 143), Ghulam Haider v. Settlement Commissioner (1972 SCMR 559). The learned Advocate Supreme Court has attempted to portrait altogether a new case which we are afraid cannot be done at this belated stage. There is no cavil with the proposition that "where points formulated for consideration were not urged before High Court and High Court did not express any opinion thereon, Supreme Court refused to allow such points to be raised at appeal stage before the Supreme Court." In this regard reference can be mad to case of Begum Zahoorul Haq v. Muhammad Younus (1985 SCMR 1657). This new strategy has probably been evolved to frustrate the object of "gift", validity whereof has been determined and a past and closed chapter cannot be reopened which was all the most settled by this Court vide judgment dated 24-2-1985. It would not be out of place to mention here that the validity of gift was also challenged by means of writ petition preferred by one Khalid Naqvi which was dismissed by the learned High Court and it was held in a categoric manner that the gift in favour of Mst. Sharifan Bibi was neither illegal nor inoperative. The validity of gift has been questioned as per learned Advocate Supreme Court on behalf of petitioner it is yet to be determined which is not correct and the said contention has been made in oblivision of the fact that pursuant to that judgment a compromise was executed between the predecessor-in-interest of the petitioners and resultantly mutations of specific Khasra number were sanctioned in favour of Mst. Hussain Bibi which remained intact. No doubt that the petitioners are successors of Fazal Din but how the land in question, exclusively belonged to Mst. Hussain Bibi devolved upon her under Islamic Law to the extent of 1/4th share could be given to the petitioners who are admittedly not her legal heirs. There would be no substantial change even the gift is considered annulled for the reasons as mentioned above. The petitioners had no cause of action whatsoever when the gift was already restricted to the lawful share of Mst. Hussain Bibi and hence the question of annulment of the gift does not arise which was never challenged by the predecessor-in-interest of the petitioners but admitted impliedly which culminated into a compromise between the predecessor-in-interest of the petitioners and Mst. Hussain Bibi. In view of what has been stated hereinabove the petition being devoid of merits is dismissed and leave refused. M.H./S-14/S??????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.