CH. SHAHID SAEED, J. --- Brief facts of the case are that Allah Ditta, father of the plaintiff, Karim Bakhsh, father of defendant No. 1 and Hussain Bakhsh father of defendant Nos. 2 to 8 were real brothers. Karim Bakhsh died in 1948 and he had no male issue. He had landed property in village Muhammad Murad Dahir and Saidpur. The plaintiffs being legal heirs of Karim Bakhsh were entitled to get 1/4 share from the said property. The mutation No. 484 of inheritance of Karim Bakhsh deceased was correctly sanctioned in favour of Allah Ditta (father of the plaintiff), Hussain Bakhsh father of defendant Nos. 2 to 8 and defendant No. 1 Mst. Safia Bibi. It was further alleged in the plaint that defendant No. 2 is the husband of defendant No. 1. Defendant No. 2 managed the affairs of the land in dispute and also used to give share of produce to the plaintiffs. After the death of their father, the plaintiffs asked the defendant No. 2 to divide the property and hand over their share but he refused to do so. Then it came into the knowledge of the plaintiffs that defendants Nos. 1 and 2 having in league with each other transferred the whole property of mouza Saidpur in favour of defendant No. 1. That the mutations Nos. 443, 403, 899 and 900 are against law and facts, void, ineffective upon the rights of the plaintiffs and the same were liable to be cancelled.
2. On the other hand, defendant No. 1 Mst. Safia Bibi filed a suit for declaration against the plaintiffs to the effect that the mutation No. 282, dated 8.6.1956 regarding the landed property of her father situated in village Muhammad Murad Dahir is against facts, law and the same is liable to be cancelled.
3. On 24.11.1987 both the suits were consolidated and the proceedings of the suits were taken up in the suit titled Abdul Ghafar, etc. Vs. Safia Bibi etc. Filed by the plaintiffs. In both the suits written Sections were submitted by both the parties. The learned Trial Court out of the divergent pleadings of the parties framed 13 consolidated issues. The parties adduced their oral as well as documentary evidence in support of their versions. Learned Trial Court after hearing the arguments of learned counsel for both the parties at length dismissed the suit of the plaintiffs, whereas the suit filed by the defendant No. 1 Mst. Safia Bibi was decreed in her favour vide consolidated judgment and decree dated 28.2.1993. Petitioners preferred two separate appeals against the said consolidated judgment and decree. The appeal filed by petitioners against the dismissal of their suit was dismissed, whereas the other appeal against the decree passed in favour of Mst. Safia Bibi respondent No. 1 was allowed and the suit of Mst. Safia Bibi which earlier was decreed by the learned Trial Court was dismissed on 6.3.1999. Feeling aggrieved by the said judgment and decree petitioners have preferred the instant civil revision.
4. Learned counsel for the petitioner contends that the judgments and decrees passed by the Courts below to the extent of suit filed by the petitioners are against law and facts and also not sustainable in the eyes of law; that neither the will was consented by the heirs of deceased Karim Bakhsh nor the same was made by the deceased; that both the subordinate Courts did not follow the Articles 117 and 118 of Muhammadan Law according to which if a will is established, the same is not valid unless the same is consented by the other heirs after the death of testator. Further submits that both the Courts below have misread the record while deciding the case.
5. On the other hand learned counsel for the respondents states that already petitioners and their father filed almost four suits which were dismissed as withdrawn; further maintains that out of the four suits two were dismissed with the permission to file the fresh suit subject to cost of Rs. 40/- and Rs. 100/- respectively but till today the said cost has not been paid by the petitioners. That according to Ex.D.3 father of the petitioners affected compromise with respondent No. 1 in an earlier suit and he relinquished his right on the basis of compromise and the will made in favour of Mst.
Safia Bibi was accepted by Allah Ditta and the said suit was dismissed as withdrawn. Further maintains that the suit filed by the petitioners is badly time-barred.
6. Arguments heard. Record perused.
7. The main contention of learned counsel for the petitioners was that the will made in favour of the respondent No. 1 has no bearance in the eyes of law unless the same is consented by the other heirs after the death of testator. From the perusal of Ex.D.3 and Ex.D.4 it reveals that Allah Ditta father of the petitioners during the pendency of previous suit entered into compromise with the respondent No. 1 and relinquished his right on the basis of compromise and also admitted The will in favour of the respondent No. 1. When the father of the petitioners has admitted the will and has relinquished his right through Ex.D.3, therefore, the said ,statement of Allah Ditta is a consent in favour of respondent No. 1, hence, the contention of learned counsel for petitioners has no force and the same is repelled and Article 117 of Muhammadan Law is not applicable to the case of the petitioners. It is pertinent to mention here that Allah Ditta father of the petitioners instituted his first suit which was got dismissed as withdrawn on 8.11.1967 subject to cost of Rs. 40/-, his second suit was again dismissed as withdrawn on 5.3.1968 and after his death petitioners being his legal heirs filed suit on 15.9.1985. That suit was dismissed as withdrawn with the permission to file fresh suit for possession subject to cost of Rs. 100/-. Thereafter neither the petitioners paid the above-said cost nor filed the suit for possession and again they filed the suit for declaration which was not maintainable in the light of their statement according to which they could file only suit for possession.
8. Allah Ditta father of the petitioners filed the first suit for declaration in the year 1967 whereas the last 'mutation No. 443 was sanctioned in the year 1956. Father of the petitioners remained silent for about 11 years after the sanctioning of last mutation in dispute and thereafter he filed the suit which was dismissed as withdrawn and in paragraph No. 6 of the said suit Allah Ditta had clearly mentioned that he remained silent due to the close relationship with the respondent No. 1. It means the mutations in dispute were already in the knowledge of the petitioners and their father, therefore, the suit of the petitioner was badly time-barred. However, according to Order 23, Rule 2 of CPC, in any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by law of limitation in the same manner as if the first suit had not been instituted .
Whereas in the case in hand, the first suit filed by the father of the petitioners was time-barred by 11 years. Furthermore, there is concurrent finding of fact in the matter and the Courts below while passing the impugned judgments and decrees have taken into consideration all the material aspects of the case. The findings of the Courts below based on material on record would not be amenable to interfere within revisional jurisdiction.
9. Resultantly, this revision petition having no force is dismissed with no order as to costs.
Civil Revision .