1. MUHAMMAD AKRAM, ACTG. C. J.--The land in dispute measuring 11 kanals, 12 marlas was owned by one Ghulam Qadir. He married Mst. Sardar Begum who had died during his lifetime in the year 1943.
2. According to Mst. Rasulan Bibi, respondent No. 1, after the death of his first wife the said Ghulam Qadir contracted a second marriage and by coincidence the name of his second wife was also Mst. Sardar Begum. He died on the 28th of August 1950. After his death mutation No. 542 relating to his estate was sanctioned by the Revenue Officer on the 7th of August 1953, in favour of the said Mst. Sardar Begum, as the surviving widow of the deceased to the extent of 1/8th share and the other claimants in proportion to their respective shares under the Shariat Law. Afterwards on the 15th of March, 1969, Mst. Sardar Begum widow of the deceased sold her 1/8th share That had devolved on her in the land in dispute through Muhammad Bashir respondent No. 3 as her attorney in favour of Mst. Rasulan Begum respondent No. 1.
3. After recording the evidence the learned Civil Judge, Sheikhupura, on the 11th of October, 1974, decreed the suit of the plaintiffs petitioners against the defendants respondents. He observed that from the death entry (Exh. P. 2) it was proved that Mst., Sardar Begum had died on the 17th of September, 1943, in the lifetime' of her husband, Ghulam Qadir. In this connection the Court further observed that the defendants had led oral evidence to prove that Ghulam Qadir had a second wife also by the name of Mst. Sardar Begum who was alive at the time of his death. But in the opinion of the trial Court this evidence adduced by the defendants was too weak and could not be relied upon.
4. Aggrieved against the decree, Mst. Rasulan Bibi defendant-respondent No. 1 went up in appeal against it. On the 20th of March, 1978, the Additional District Judge, Sheikhupura, accepted her appeal on the main issue No. 5, reversed the decree passed by the trial Court and dismissed the suit of the plaintiffs-petitioners. The regular second appeal filed by the plaintiffs-petitioners against the decree was dismissed by a learned Judge of the Lahore High Court at Lahore on the 12th of April, 1978. In these circumstances the petitioners have filed the above petition for special leave to appeal from the judgment and decree passed by the High Court.
5. The only question that has been raised for our consideration in this petition is as to whether the lower appellate Court as well as the High Court were justified in holding that said Ghulam Qadir who died on the 28th of August, 1950, was survived by a widow by the name of Mst. Sardar Begum and consequently the mutation No. 542 was rightly sanctioned in her name as the widow of the deceased to the extent of 1/8th share by the Revenue Officer on the 7th of August, 1953. In this connection we find that the learned Additional District Judge has based his conclusion on solid facts. He observed that the proceedings before the Revenue Officer showed that Mst. Sardar Begum appeared on different dates in connection with the attestation of the mutation No. 542 in question. The daughters of the deceased Ghulam Qadir and Muhammad Siddique as the nephew were present at the hearing but none of them had objected that Mst. Sardar Begum was not the widow of the deceased. Likewise, the mutation was attested in the presence of Muhammad Sharif Larnbardar (D. W. 1) without any objection to this effect. The proceedings further go to show that the statement of Mst. Sardar Begum was recorded by the Revenue Officer and on the 7th of August, 1953, the mutation was attested in the presence of Said Ahmad petitioner No. 1. In this manner 1/8th share in the land in dispute of the estate of the deceased was attested in favour of Mst. Sardar Begum as his widow. The effect was given to this mutation in the entries repeated in the subsequently prepared Jamabandis in which Mst. Sardar Begum was recorded as the widow of the deceased.
6. The learned Additional District Judge further observed that plaintiff --petitioners Nos. 2 and 3 are the sons of Said Ahmad petitioner No. 1 and had purchased share in the land from the daughters of Ghulam Qadir deceased. Likewise Said Ahmad petitioner successfully pre-empted the sale of a share in the land made by some of the co-heirs in the favour of Muhammad Ismail, husband of Mst. Rasulan Bibi respondent. The plaintiffs-- petitioners are not the personal law heirs of Ghulam Qadir deceased. They had simply sued in their capacity as transferees from and pre-emptors in respect of the sale made by some of the other heirs of Ghulam Qadir, who had till the year 1970 and even afterwards never raised any objection against the mutation thus sanctioned in favour of Mst.
7. Sardar Begum as widow of the deceased to the extent of her 1/8th share. In this view of the matter, according to the Additional District Judge the plaintiff-petitioners had no cause of action to object to the mutation of the inheritance thus sanctioned in favour of the widow. All these findings were substantially affirmed by the High Court in dismissing the regular second appeal filed by the petitioners-plaintiffs. In this connection the Court finally held that the question as to whether the deceased had left a widow, was one of a pure fact and the finding of fact recorded by the Additional District Judge in that connection was conclusive.
8. After hearing the learned counsel for the petitioners we have no hesitation in agreeing with the High Court in holding that the appeal before it was concluded by the finding of fact on this issue. In this connection, however, the learned counsel has laid stress before us to contend that in the written statement the contesting defendant-respondent No. 1 did not specifically allege that Ghulam Qadir had contracted a second marriage before his death and in the absence of such a plea having been raised the trial of the case has resulted in great prejudice to the plaintiffs. It cannot be denied that all that was alleged by the contesting defendant was that the deceased was survived by Mst. Sardar Begum as his widow in whose favour the mutation to the extent of 1/8th share in the estate was also sanctioned. He did not plead in the written statement that the deceased had contracted a second marriage. The defendant has, of course, adduced evidence to the effect that the deceased had taken a second wife who was also named as Sardar Begum and on his death in the year 1950 1/8th share had devolved on her as his widow. The plaintiffs had even cross-examined the witnesses on the point. They did not, however, lead any evidence in rebuttal.
9. They could have even suitably applied to the trial Court for permission to adduce any additional evidence if they wanted to do so. But they did not avail of the opportunity for reason best known to them. In circumstances the trial does not stand vitiated despite the fact that no specific issue on this part of the case had been framed by the trial Court. Moreover, no precise objection to this effect appears to have been raised at the hearing before the learned Additional District Judge.
10. We are also in agreement with the finding to the effect that the plaintiffs-, petitioners as transferees from some of the heirs of the deceased, had no locus standi in themselves to challenge the mutation sanctioning 1/8th share in the name of Mst. Sardar Begum as the widow of the deceased especially as right upto 1970 and even after wards they had raised no A objection against this mutation in suit sanctioned in her name. Even otherwise, on the facts elaborately stated in the judgment delivered by the Additional District Judge none of the heirs who had participated in the mutation proceeding had raised any objection before the Revenue Officer to the effect that Mst. Sardar Begum was riot a widow of the deceased.
11. For the foregoing reasons there is no force in this petition which is hereby dismissed.