' Sajida Parveen Akhtar, the petitioner/defendant, through the filing of the present revision petition, has called in question judgment and decree dated 29-9-1981, whereby the learned Additional District Judge dismissed her appeal and maintained the judgment and decree dated 20-11-1980, passed by the learned Civil Judge, through which he decreed respondents' suit for declaration and permanent injunction.
2. Precisely stated the facts of the case are that Muhammad Khalid Javed, Saeed Iqbal, Muhammad. Siddique and Amina Bibi, sons and widow of Muhammad Husssain deceased, respectively, the plaintiffs, filed a suit, against the petitioner, claiming a decree for declaration that they are owners in possession of agricultural land measuring 141 Kanals, 14 Marlas and the defendant has no title in the suit-land. It was stated by the plaintiffs that Muhammad Hussain, their predecessor-ininterest, was the owner of the disputed land and that Muhammad Rafique deceased, the real brother of plaintiffs Nos.1 to 3, who predeceased Muhammad Hussain, had neither widow nor any child, as Muhammad Rafique divorced her wife, namely, Mst. Bashiran about three months before his death. It was averred that Mst. Sajida Parveen (minor at that time) through. Her mother Mst. Bashiran, falsely claiming to be the daughter of Muhammad Rafique and grand-daughter of Muhammad Hussain, managed to affect the attestation of Mutation No,419, dated 2-11-1976, to the extent of 7/32 share, out of the suit-land in her favour. The case of the plaintiffs, precisely, was that as the petitioner is neither the grand-daughter of Muhammad Hussain nor daughter of Muhammad Rafique, therefore, she is not entitled to any share out of the disputed land and that they are exclusive owners in possession of the land. The petitioner contested the suit through filing the written statement, inter alia, pleading that Mst. Bashiran is the widow and the petitioner/defendant is the daughter of Muhammad Rafique deceased and that Muhammad Siddique, plaintiff No,3, had himself got disputed mutation entered and attested before the Patwari in her name. The learned trial Court framed the necessary issues, recorded the evidence of the parties and ultimately decreed the suit in favour of the plaintiffs, vide judgment and decree dated 20-11-1980. The petitioner challenged the said decree before the appellate forum. It appears from the record that before filing the appeal, Muhammad Siddique, plaintiff No,3, died and, therefore, the petitioner filed the first appeal also impleading Shamim Akhtar, Shabbir Hussain and Zohra Bibi, as respondents Nos.3-A, 3-B and 3-C, as legal heirs of deceased Muhammad Siddique. However, petitioner's appeal was dismissed by the learned Additional District Judge, vide judgment and decree dated 29-9-1981, hence the present revision petition.
3. Learned counsel for the petitioner has contended that Mutation of Inheritance No,419, dated 2-11- 1976 (Exh.P.4), was attested in presence of Muhammad Siddique, but the said mutation was not challenged by the plaintiffs in their suit, therefore, the suit was not competent. He has relied upon the judgment reported as Syed Iftikhar Hussain v. Mst. Shafiqa Begum and 30 others 2003 SCMR
844. He has next contended that Muhammad Siddique did not appear in the witness-box, therefore, it will be presumed that the plaintiffs have withheld the best evidence. He has referred to Muhammad Aslam v. Muhammad Tufail and 2 others 1995 CLC 1061 and Mst. Saleema Bibi v. Elahi Bakhsh and others 1992 MLD 1358. Conversely, the learned counsel for the respondents, while refuting the aforesaid contentions, has submitted that although the legal heirs of Muhammad Siddique, deceased, namely, Shamim Akhtar, Shabbir Hussain and Zohra Bibi, were also the respondents before the first appellate Court, . Yet they have not been made party to this revision petition and, thus, according to the learned counsel the revision petition is not competent. He has referred to Abdul Qadir and 5 others v. Muhammad Umar and others PLD 1987 Lahore 232 and Muhammad Suleman v. Abdul Rashid and 13 others PLD 1987 Lahore 387. He has further submitted that the production of additional evidence is not a right of the party, but it is the discretion of the Court. In this regard he has relied upon Shakir Ali Khan and others v. Tauhid Ahmad Khan and others 1981 SCMR 149.
4. Firstly, coming to the maintainability of the present revision petition on account of non- impleading the necessary parties. In this perspective, I have examined the record and find that in the memorandum of appeal, although Shamim Akhtar, Shabbir Hussain and Zohra Bibi, were impleaded as respondents Nos.3-A, 3-B and 3-C, before the first appellate Court, yet they have not been listed in the memorandum of the revision petition before this Court and only the respondents have been made party. Now the question arises as what would be the effect on the present petition of non-impleading the parties, which were respondents before the learned first appellate Court. It has been held in Shah Muhammad and others v. Muhammad Bakhsh PLD 1972 SC 321 that "it nowhere lays down that any person, who is a necessary party to the appeal, can be excluded and still the appeal will be properly constituted"; that "in order to exercise the powers given by this rule, all persons to be affected by the order must be before a Court, that it would be totally wrong to hold that an appellate Court can proceed to hear an appeal, even if the necessary parties are not before it" and that "the Courts below were right in tal ing the view that the decree was indivisible and each one of the appellants was a necessary party to the appeal and in the absence of anyone of them the decree could not be varied or altered". This Court, in the cases of Abdul Qadir and Muhammad Suleman (supra), relied upon by the learned counsel for the respondents, dismissed the causes, where necessary parties were not impleaded before this Court, though they were parties before the lower forums. In the instant case, grounds of appeal submitted by the petitioner amply show that the aforenamed persons were impleaded as respondents in the first appeal, yet they were not made party in the present revision petition. It is pertinent to mention here that although the revision petition is pending in this Court since the year 1981, yet the 'petitioner -did not take any steps to implead the said persons in the present petition, inasmuch as no such application was filed by her during the last twenty three years. This fact is sufficient to show the contumacious conduct and neglect of the petitioner in prosecuting the case before this Court. In the case of Abdul Qadir (ibid) this Court declined to excuse such neglect by holding that if the petitioners are allowed to implead new parties by accepting the revision, it would amount to give premium to one's own neglect to the detriment of other party.
5. In the above perspective, I am of the considered view that as the decree, impugned before this Court, is indivisible and the necessary parties have not been impleaded in the present revision petition and such a conduct of the petitioner amounts to contumacious neglect, therefore, non- impleading of the necessary parties is fatal to the present proceedings, thus, the revision petition deserves to be dismissed on this short ground.
6. To my mind, in view of the above findings, the revision petition cannot proceed further, however, in the interest of justice, I have also examined the contentions raised by the learned counsel for the petitioner. Even the petitioner has got no case on merits. As regards the first contention of the learned counsel. I have inspected the written statement, filed by the petitioner and find that no such objection was taken by her in the written statement. Although in preliminary objection No,1, it has been stated that plaintiff No,3 himself got attested mutation in favour of the petitioner, which was not challenged by the plaintiffs before the Revenue authorities, as such, they admit the said mutation, therefore, the suit is not maintainable, yet no such objection, as how canvassed by the learned counsel, was raised at the first instance. It flows therefrom that no such objection, which has now been raised by the learned counsel for the petitioner, was urged before the learned trial Court, inasmuch as no such objection has been taken either in the grounds of appeal before the first appellate Court or in the revision petition before this Court. It is settled law that a litigant cannot be allowed to raise a new ground of attack or defence by the appellate or revisional Court by departing from its previous pleadings, which has not been agitated before the lower forums. If any case-law is needed, judgment reported as Mst. Murad Begum and others v. Muhammad Rafiq and others PLD 1974 SC 332 can be referred. It may be added here that in view of preliminary objection No,1, the learned trial Court framed Issue No,1 about the non-maintainability of the suit, which was decided in favour of the plaintiffs. After examination of the evidence on record and law on the subject, both the Courts concurrently held that plaintiffs' suit was maintainable. In the present scenario, the principles laid down in the case of Syed Iftikhar Hussain (ibid), relied upon by the learned counsel for the petitioner, are not attracted, thus, the said judgment is of no avail to the petitioner.
6. Coming to the second contention about the non-production of Muhammad Siddique as one of the witnesses. Admittedly, Muhammad Siddique was one of the plaintiffs. Muhammad Khalid Javaid, one of the plaintiffs, appeared before the learned trial Court on behalf of all the plaintiffs. I have examined the statement of P.W.3 and find that it has been mentioned that he is appearing on behalf of all the plaintiffs. It is evident from the words " " that he appeared on behalf of all the plaintiffs. In view whereof, if Muhammad Siddique did not appear as a witness, it would not prejudice the case of the plaintiffs.. In these circumstances, there was no necessity for all the plaintiffs to appear before the learned trial Court, as the statement of Khalid Javaid would be deemed to be recorded on behalf of all the plaintiffs. Additionally, if Muhammad Siddique was a crucial witness to support the case of the petitioner, in that case she should have summoned.
Muhammad Siddique as her own witness, but record shows that the petitioner did not make any effort at any stage of the proceedings, to summon Muhammad Siddique in order to get' recorded his statement. The contention raised by the learned counsel is devoid of merits.
7. 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.
8. 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 trial Court. No case of misreading and non-reading 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.
9. 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.
10. Upshot of the above discussion is that the present revision petition is incompetent and devoid of merits, thus, the same is dismissed leaving the parties to bear their own costs.