MIAN HAMID FAROOQ, J.--Petitioners/plaintiffs, through the filing of the present revision petition, have called in question judgment and decree dated 7-1-2002, whereby the learned Additional District Judge accepted respondent's appeal and dismissed petitioners suit by setting aside judgment and decree dated 24-9-2001, passed by the learned trial Court, through which it decreed petitioner's suit.
2. Zaman Khan etc., the petitioners, filed a suit for declaration thereby, claiming that they are owners in possession of the property in dispute as legal heirs of Khuda Yar that the decision of Member Board of Revenue dated 20-2-1996 is against law and the Revenue Record and that the respondents have no concern with the said property. It was stated in the plaint that deceased Khuda Yar was owner of the disputed land; he died leaving behind Mst. Sardaran Mai and the petitioners; he was issueless and belonging to Fiqa Jaafria and Mst. Sardaran Mai, the predecessor-ininterest of the respondents, was not entitled to inherit from the estate of deceased.
It was further pleaded by them that inheritance Mutations Nos.1044 and 3155 were validly sanctioned in accordance with Shia law and that the decision of the Member Board of Revenue dated 20-2-1996 may be declared illegal and the aforesaid mutations may be revived/enforced.
Mst. Sardaran Mai resisted the suit by way of filing the written statement, submitting therein, that Khuda Yar was a Sunni Muslim and she is entitled to inherit from the estate of Khuda Yar to the extent of 1/4th share in the property. The learned trial Court framed 8 issues, recorded the evidence of the parties and proceeded to decree the suit, vide judgment and decree dated 24-9-2001.
However, respondent's appeal was allowed by the learned Additional District Judge, vide judgment and decree dated 7-1-2002, who dismissed petitioner's suit by setting aside the judgment and decree of the learned trial Court, hence the present revision petition.
3. Learned counsel for the petitioners has contended that although Exh.P.1 was duly proved by the petitioners, which was relied upon by the learned trial Court while decreeing their suit, yet the learned lower Appellate Court has committed legal errors in disbelieving the same and while dismissing their suit. He has further submitted that the impugned judgment suffers from misreading and non-reading of evidence. Conversely, the learned counsel for the respondents, while supporting the impugned judgment and refuting the contention of the learned counsel for the petitioners, has submitted that in fact the legal errors, committed by the learned trial Court, have been rectified by the Appellate Court, hence the impugned judgment does not call for any interference.
4. In view of the arguments of the learned counsel for the parties, I have examined the impugned judgment, rendered by the learned Additional District Judge, and find that the learned lower Appellate Court in paras.Nos.12 and 13 of the impugned judgment has discussed Exh.P.1. In a threadbare manner and while adverting to the evidence on record rightly came to the conclusion that the petitioners were not able to prove Exh.P.1. It is however, not understandable that how P.W.2, who had no concern with the Zakat and Ushr Committee at the time when his statement was recorded, could bring the record containing the original Exh.P.1. The original record should have been in the custody of incumbent Record Keeper, Secretary or the Chairman of the said Committee, who were running the affairs of the Committee at the relevant point of time. Obviously, the onus to prove lies upon the petitioners to prove that Exh.P.1 was signed and executed by the deceased Khuda Yar but they could not discharge the onus of the said issue. It has rightly been held by the learned lower Appellate Court that the stamp vendor was neither summoned nor produced before the learned trial Court, which was the best witness available with the petitioners.
The learned lower Appellate Court in paras.Nos.14 and 15 of the impugned judgment has exhaustively embarked upon the crucial issue involved in the case, appreciated the oral as well as documentary evidence on record, discussed the evidence produced by both the parties and reached to the proper conclusions, which, to my mind, are not open to exception. The learned Additional District Judge, in detail, discussed each and every witness and documents on record and after believing/disbelieving the same came to the conclusion that Khuda Yar was a Sunni Muslim and it was so recorded in the Death Register entered on 28-6-1989. The evidence produced by the parties, if placed in juxtaposition with the findings given by the learned Additional District Judge, leads to the conclusion that the inferences drawn and findings rendered by the learned lower Appellate Court are not only in accordance with the record of the case but the same are also in consonance with the law on the subject.
5. Although it has been pleaded that the impugned judgments suffers from misreading and non- reading of evidence, yet the learned counsel for the petitioners despite his best efforts could not refer to any portion from the evidence on record in order to demonstrate that in fact the lower Appellate Court has misread or non-read the evidence on record.
6. I have examined the judgment, rendered by the learned trial Court and find that the same is not sustainable, inasmuch as it has incorrectly been held that the petitioners were able to prove the execution of Exh.P.1. To say the least, the findings given by the learned trial Court are not supported by the evidence on record. To my mind, the said judgment, as compared to the learned lower Appellate Court's judgment, is not sustainable in law and suffers from grave legal errors, which have been rectified by the learned lower Appellate Court by reversing the findings of the learned trial Court and substituting its own findings, which are supported by reasons. I am not inclined to restore the judgment of the learned trial Court, which has rightly been reversed by the learned lower Appellate Court.
7. In my view as the impugned judgment is neither contrary to the evidence on record nor in violation of the principle of administration of justice, thus the judgment of the learned Appellate Court should ordinarily be preferred. If any case is needed, judgments reported as Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Karachi 202; Ilamuddin through legal heirs v. Syed Sarfraz Hussain through legal heirs and 5 others 1999 CLC 313 and Aasa v. Ibrahim 2000 CLC 500 can be referred.
8. In the above perspective, I am of the considered view that the impugned judgment is legal, unexceptionable, apt to the facts and circumstances of the case and does not call for any interference by this Court in exercise of its revisional jurisdiction, thus, the same is maintained.
9. Upshot of the above discussion is - that the present revision petition is devoid of any merits, hence dismissed leaving the parties to bear their own costs.