' TASSADUQ HUSSAIN JILLANI, J.--- Facts briefly stated are that the predecessor-in-interest of the parties, Professor Saeed Ahmed Khan died on 27-10-1981, leaving behind the following legal heirs:-- -
(i) Mst. Zareena Begum, wife, (ii) Mrs. Sheeren Tahira, daughter, (iii) Mrs. Nargis Saeed, daughter,
(iv) Mrs. Gul Badan Bani, daughter, (v) Mrs. Ghazala Bano, daughter, (vi) Mr. Nigarish Bano, daughter, (vi) Khalid Ahmed, son and (viii) Brig. Sher Afghan (appellant son).
2. On 22-9-1985 one of the legal heirs namely Khalid Ahmed died and he was survived by two daughters namely Miss Rabia Ahmed and Miss. Benish Ahmed. All the legal heirs except Brigadier Sher Afghan/defendant filed civil suit for partition (qua House No,117, Model Town, Lahore and claimed their "Sharai" share in the said property owned by their deceased predecessor-in-interest against Brigadier Sher Afghan (who was residing in the said house). The defendant contested the suit and in the written statement filed, he claimed that the late Professor Saeed Ahmed Khan owned three properties i,e, (i) the house, subject-matter of this appeal, (ii) Agricultural land in Sargodha and (iii) house in Gujrat. The latter two properties, according to appellant, were disposed of by him as attorney of the legal heirs and the sale proceeds were given to them through plaintiff No,1 Mst. Zareena Begum (their mother/wife of Professor Saeed Ahmed Khan); that they had received their share from those proceeds and the appellant/defendant did not get a single penny from those proceeds in lieu whereof the suit property came in his share; that considering the house to be his share, he had spent more than Rs,24,00,000 on the property and that the suit not disclosing any claim tenable in law merits to be dismissed.
3. The learned trial Court in terms of the divergent pleas of the parties framed following issues:--- "(1) Whether the property in suit is jointly owned by the parties? If so what are their respective shares in it? OPP
(2) Whether suit is not maintainable in its present form? OPD
(3) Whether plaintiffs have no cause of action to file this suit? OPD
(4) Whether suit has not been correctly valued for the purpose of court-fee and jurisdiction? If so what is correct valuation and to effect? OPD (4-A) Whether the plaintiffs have wilfully omitted to mention two other properties? If so what is its legal effect? OPD (4-B) Whether the plaintiffs have already received their shares out of the estate of Saeed Ahmad Khan deceased? OPD
(5) Relief."
4. The respondent/plaintiffs led following set of evidence:---
(i) Mst. Zareena Begum She was initially examined on (P.W.1) 13-12-1994 but she was again re- called and cross-examined once again on 4-7-1996
(ii) Mrs. Sheeren Tahira (P.W.2)
(iii) Mrs. Nargis Saeed (P.W.3)
(iv) Mrs. Ghazala Bano (P.W.5)
5. The documentary evidence led by the respondent/plaintiffs was Exh.P.1, Exh.P.2, Exh.P.3, Exh.P.4, Exh.P.5 and Exh.P.6, on the other hand, appellant/defendant appeared himself as D.W.1.
6. The learned trial Court vide its judgment dated 17-9-2001 and in terms of its findings on Issue Nos.1,4-A and 4-B decreed the suit to the extent of respondent/plaintiff's Nos.6 and 7 (daughters of Late Khalid Ahmed) and dismissed the suit with regard to the remaining respondent/plaintiffs and held that the suit property should be jointly partitioned between appellant/defendant Brigadier Sher Afghan and respondent/plaintiff Nos.6 and 7 namely Miss. Rabia Ahmad and Miss. Benish Ahmad. This judgment and decree was affirmed by learned Additional District Judge vide its judgment and decree dated 20-3-2002. The concurrent judgments were however, reversed by the learned High Court in terms of the impugned judgment dated 5-5-2004.
7. Learned counsel for the appellant in support' of this appeal relying on Suleman v. Mst. Zeenat Jan and 2 others PLD 2003 SC 362, Abdul Hakeem v. Habibullah and 11 others 1997 SCM R 1139 and Muhammad Munir and others v. Hafiz Muhammad Rafiq and others 2004 SCM R 1551 submitted that the learned High Court could not have interfered with the concurrent findings of fact which were rendered after due consideration of the entire evidence led; that the revisional Court in terms of its jurisdiction under section 115, C.P.C. Can interfere with a finding of fact only if the same suffers from misreading and non-reading of evidence or the appreciation of evidence is found to be perverse.
He further contended that the learned High Court in partly disbelieving the testimony of P.W.1 Mst.
Zareena Begum (her answers in cross-examination) and holding that she being one of the plaintiffs went beyond the pleadings did not appreciate that the portion of her statement which was being disbelieved by the Court was part of her replies in cross-examination; that there is no bar in law for a party to admit the truth at any time and that the finding of the learned High Court qua this is violative of Order XII, rule 6, C.P.C. He further submitted that the said witness had in fact come out with truth which partly went against her but it proved that she was an honest and credible witness. In support of the submissions made learned counsel relied on Adalat Khan v. Mst.
Begum Bibi through Legal Heirs and another 1991 SCM R 1381 and Abdul Jabbar and others v.
Muhammad Jabbar and others 2002 SCM R 1173. Learned counsel lastly assailed the legality of the revision filed on behalf of the minors namely Miss. Rabia Ahmad and Miss. Benish Ahmad on the ground that they at the time of filing the revision had become majors and in terms of Order XXXII Rule 12 C.P.C., they had a right to be given a notice so that they were properly represented. He added that not only the revision to their extent was incompetent but the learned High Court in summoning them and recording findings on their replies to the Court queries, adopted a procedure which was untenable and had materially prejudiced the appellant as he was not given any right to cross-examine them.
8. Learned counsel for the respondent/plaintiffs, on the other hand, defended the impugned judgment by submitting that the learned Trial Court was not justified to recall Mst. Zareena Begum (P.W.1) after a year of her earlier statement which was recorded on 13-12-1994; that she was asked leading questions in cross-examination and the appellant/defendant through the said cross- examination made a case which was not part of their pleadings. Elaborating this point, learned counsel submitted that in the written statement filed by the appellant/ defendant there was no mention of any family agreement/partition in consequence of which the suit property fell in the share of the defendant; that the learned Trial Court on the basis of the said subsequent testimony of Mst. Zareena Begum (P.W.1) dismissed the suit of the respondent/ plaintiffs and directed the suit property to be partitioned between appellant/defendant and heirs of Khalid Mehmood, not only non-read her earlier examination-in-chief and cross-examination but the testimony of other plaintiffs who appeared as P.W.2, P.W.3 and P.W.S. This manner of appreciation of evidence, he added, was perverse and was rightly interfered with by the learned High Court in revisional jurisdiction. He further submitted that the case of the appellant that there was a family partition; that he sold the two properties other than the suit property and the sale proceeds were given to respondent/plaintiff No,1 Mst. Zareena Begum is without substance as no evidence was led in support of that.
9. We have heard learned counsel for the parties and have gone through the evidence with their assistance.
10. The learned Trial Court and the learned Additional District Judge decided issues Nos.1, 4-A and 4-B by relying on one part of the testimony of Mst. Zareena Begum (P.W.1) (cross-examination) and the statement of the appellant/defendant Brig. Sher Afgan to the effect that the latter was appointed as attorney to dispose of the other two properties and the shares of the respondent/plaintiffs were satisfied from the sale proceeds of those properties. Upholding the findings of the trial Court, the learned Additional District Judge in its judgment dated 20-3-2002 held as follows:--- "The power of attorney is on record which was solely granted for the purpose of sale of the property. That is nothing else but satisfaction of the shares of the plaintiffs in the suit property out of the sale proceed of the properties situated at Sargodha and Gujrat legally as well as morally they may not claim shares out of the disputed property, it is also so as per their internal settlement. The property in dispute was left to be divided among two sons of the deceased; the defendant/respondent and predecessor of plaintiffs/appellants No,7 and 8. The learned Civil Judge held that the plaintiffs Nos.1 to 6 have no claim in the suit property and have rightly disposed of these two issues in favour of plaintiffs/appellants No,7 and 8 and the defendant. The findings recorded by the learned lower Court are quite justified in view of the evidence on record and cannot be interfered with.
Accordingly the findings are upheld." (Emphasis is supplied)
11. The afore-referred finding was reversed by the learned High Court by holding as following:- "(6) I have already repeatedly referred to the written statement above. Whatever was suggested to the said lady was not even pleaded by the respondent in his written statement. Now Mst. Sheeren Tahira appeared as P.W.2, Mst. Nargis Saeed appeared as P.W.3, and Mst. Ghazala Bano appeared as P.W.5. All these ladies stated that they had not appointed the respondent as an attorney. They categorically stated that they did not receive any amount from the sale proceeds of the properties in Sargodha and Gujrat.
(9) Now coming back to the statement of Mst. Zarina Begum recorded on 4-7-1996 in the form of the so-called cross-examination, this statement is absolutely contrary to the statement made by her on 8-12-1994. Whatever was put to her in cross-examination is not the case of the respondent in his written statement. Now Mst. Zarina Begum as well as the respondent as D.W.1 have stated that out of the sale proceeds Rs,1,00,000 each was given to two daughters, Rs,50,000 each to two daughters and land was purchased for the 5th daughter. It is a matter of record that the land purchased by Mst. Nigar was worth Rs,24,000. This makes a total of Rs,3,24,000. According to the respondent, he sold the property at Gujrat and Sargodha for Rs,6,25,000. There is no explanation for the balance amount of Rs,3,00,000. Now assuring that the sisters had appointed the respondent as an attorney and he had sold the properties for the amounts he has stated i,e, Rs,6,25,000, the widow's share was 1/8th which comes to Rs,78,125. The share of each daughter comes to Rs,60,763.88 while the share of each son comes to Rs,1,21,527.77. Now even going by the statement of the respondent No,1 and the said statement dated 4-71996 of Mst. Zarina Begum the balance unexplained almost is equal to the shares of the two sons and that of the mother."
12. In appraising the evidence and upholding the judgment and decree of the learned Trial Court, dismissing suit of the respondent/ plaintiffs, the learned First Appellate Court came to the conclusion that "all the P.Ws. Admitted in their statements that they duly appointed to their brother defendant"; that there was no other purpose of sale but "satisfaction of shares of the plaintiffs in the suit property out of the sale proceeds of the property situated in Sargodha and Gujrat" that this was part of their "internal settlement" and that "legally as well as morally" (emphasis is supplied) they may not claim share out of the disputed property. These findings, we may observe with dismay are not only conjectural but against the weight of the evidence led. Such an appreciation of evidence to say the least is fallacious.
13. For instance P.W.1 Mst. Zareena Begum appeared for the first time before the trial Court on 13-12- 1994 and candidly stated that the suit property "is joint, we want its partition in accordance with respective shares under the Sharia law" and it was only when she was summoned (on the application of appellant-defendant) and re-crossexamined after more than 1-1/2 years of her 'earlier statement wherein she gave conceding replies to the questions asked that there was some family settlement; that the properties in Gujrat and Sargodha were sold and that the shares of other shareholders were satisfied from those sale proceeds.
14. One can understand that being the only surviving son, the appellant's version/entreatment may have constituted an emotional pull. But her concessions in cross-examination could not offset the overwhelming evidence comprising of her own earlier testimony and the remaining witnesses to the effect that they had their lawful share of inheritance in the suit property; that the inherited properties were never partitioned in any family settlement and that the so-called satisfaction of their claim through sale proceeds of the remaining two properties was factually incorrect. Her changed stance in cross-examination was contradicted by her real daughters i,e, P.W.2 Mrs. Sheeren Tahira, P.W.3, Mrs. Nargis Saeed and P.W.5 Mrs. Ghazala Bano. P.W.2 Mrs. Sheeren Tahira in her examination-in-chief candidly stated that " we are not aware as to when the properties in Sargodha and Gujrat were sold because we had not given any power of attorney, these properties were sold after the death of our father and we did not get any share from the sale proceeds of those properties". Similarly P.W.3 Mrs. Nargis Saeed corroborated her statement by deposing that "I did not get any share from the property of my father. Since defendant had turned out my mother and orphan children by belaboring them, we filed the instant suit. The defendant did not give me any share in the property and I have my share of inheritance under the Sharia law in the suit property." Mrs. Ghazala Bano appeared as P. W.5 and she also corroborated the statement of the other witnesses by submitted that "the properties in Gujrat and Sargodha have been sold. They have been sold by the defendant and we did not get any share from the sale proceeds. We have our share under Sharia law in the suit property". These witnesses were subjected to lengthy cross- examination and they remained consistent on all material particulars and no inconsistency was pointed out even by appellant's learned counsel to adversely affect their credibility. The claim of D.W.1/appellant that he had sold the two properties (agricultural land in Sargodha and House in Gujrat) as an attorney of the legal heirs, has been belied not only by the testimony of the afore mentioned witnesses who are his real sisters but also by the fact that even in the power of attorney on which defendant placed reliance, there is no mention of any family settlement or that from the sale proceeds, the share in inheritance of respondent/plaintiffs would be satisfied. Even in the written statement filed by the appellant/defendant there was no specific mention of any family settlement or agreement or the quantum of sale proceeds. In the backdrop of such an evidence the finding of the learned High Court that even if the version of the defendant that out of the sale proceeds Rs,3,24,000 were given to the respondent/plaintiffs is believed to be true, the remaining amount remained unaccounted for is unexceptionable (as the total amount of the sale proceeds, according to the defendant was Rs,6,25,000).
15. This by now a well-settled principle of exercise of revisional jurisdiction under 115, C.P.C. That if a finding of first Court of Appeal is based on no evidence or is arbitrary and fallacious, the learned Revisional Court is not denuded of its power of interfere with such a finding. This view was reiterated by this Court in Naziran Begum v. Khurshid Begum 1999 SCM R 1171 wherein at page 1178 it was held as follows:--- "A finding on a question of fact arrived at by the First Appellate Court which is based on no evidence or is the result of conjectures or fallacious appraisal of evidence on record is not immune from scrutiny by the High Court in exercise of its power under section 100 or 115, C.P.C. The learned Judge in Chambers, therefore, rightly reversed the findings of the first appellate Court insofar the execution of the document Exh. P/8 was concerned."
16. So far as the argument of learned counsel for the appellant with reference to Order XXXII, rule 12, C.P.C. Is concerned i,e, that two respondent/plaintiffs namely Ms. Rabia Ahmad and Ms. Benish Ahmad were not properly represented before the High Court as they had become major, we find that this point was neither agitated before the High Court nor taken in the memo of the instant appeal in the manner it was argued before this Court. This argument is without substance because both these respondents/plaintiffs were called by the learned High Court to solicit their opinion with a view to ensure complete justice. It is not denied that by that date they had not only attained majority but were students of post-graduate classes and that they never raised any objection with regard to their representation. In Afzal Begum v. YMCA through its General Secretary PLD 1979 SC 18 the effect of non-compliance of Order XXXII, Rule 3 came under consideration and the Court held that in absence of any objection from those minors, it must be deemed that they must have elected to abide by the judgment. The Court observed as follows:--- "The effect of this sub-rule is that guardian ad litem appointed under sub-rule (1) does not cease to function automatically on a minor defendant attaining majority. The guardian is to be discharged by the order of the Court and unless he is so discharged he continues to be a guardian validly representing the minor during the suit, appellate or revisional proceedings. (See Ratan Parsad Narwari v. Bridhi Chang Shroof and others AIR 1939 Pat. 601 (4) and Umra and others v.
Barkat Ali and others AIR 1928 Lah. 371 (5). In Lanka Sanyasi v. Lanka Yerran Naidu and others AIR 1928 Mad. 294 (6) the Court observed that no provision has been made in the Civil Procedure Code, in respect of a minor defendant attaining majority. Therefore, the minor defendant who comes of age may, if he thinks fit, come on the record and conduct the defence himself. If, however, he does not do so and allows the case to proceed as thought he was still a minor without bringing to the notice of the Court, the fact of his having attained majority, then he must be deemed to have elected to abide by the judgment of adjudication by the Court with respect to the matters in controversy on the basis of the suit at the time."
17. The ratio laid down in the foregoing judgment was reiterated by this Court in Mst. Muhammadi v.
Ghulam Nabi 2007 SCM R 761 and the Court found that non-compliance of these provisions would be relevant only if the minor in any manner was prejudiced. Learned counsel for the appellant never disputed that they made a statement before the High Court of their own volition that all heirs should be given their lawful share of inheritance, in the suit property. Those respondents have not even challenged the impugned judgment. That being so it S.-I. Rather late in the day to contend that the appellant was prejudiced by the manner in which they were summoned and made queries by the learned High Court. As a matter of fact, those two ladies were summoned at the request of both the parties. In para 11 of the' impugned judgment, the Court explained how and why those ladies were summoned. The Court observed that "They have attained majority. Both of them are studying in M.A. Classes in a local college. It was explained to them that a decision in this civil revision may have result of reducing their share in the property while their uncle i,e, respondent No,1 has stated that the house has become to him and the father of the said ladies and as per the decisions recorded by the learned Courts below they have been held to be entitled 1/2 share in the property whereas this will be reduced substantially. They have answered in categorical term that all the heirs should get their shares in accordance with the personal law." Having joined in the request to summon those two ladies, it is rather un-chivalrous of the appellant to object to their appearance.
18. For what has been discussed above, we do not find any merit in this appeal, which is accordingly dismissed.
17. Since the respondent/plaintiffs have been deprived of their inherited share in the suit property since 1981, we are persuaded to direct the learned Executing Court to ensure that if an application for execution of this judgment is made, the same is decided within three months of its presentation.