' MAZHAR ALAM KHAN MIANKHEL, J.--- The plaintiffs/ petitioners feeling themselves aggrieved of the concurrent findings of the two Courts below whereby their suit for declaration was dismissed by Civil Judge-II/Illaqa Qazi, Batkhela vide his judgment and decree dated 22-11-2003 and similarly their appeal also met the same fate by the judgment and decree dated 14-12-2010 of District Judge/Zilla Qazi, Malakand, have filed instant revision petition.
2. The learned counsel for the petitioners submitted that the findings of the two Courts below are not only against the law but the same have been based on misreading and misappreciation of the evidence available on the record. He next contended that the two Courts below have wrongly placed reliance on a partition deed dated 31-3-1957 regarding the partition of properties left by their predecessor Muhammad Akbar Khan. His next submission was that since the petitioner No,1 was minor at the time of execution of the said partition deed, so in this view of the matter, there is no contract in the eye of law, hence the same is void ab initio; the disputed property appearing at Sr. No,4 of the said partition deed was wrongly declared to be the ownership of legal heirs of Jehan Bakht, i.e. Predecessor of defendants/respondents Nos.2 to 9 which according to the material available on the file becomes the property to be inherited by all the legal heirs of their common predecessor namely Muhammad Akbar Khan. While referring to the issues so framed in the case, the learned counsel contended that no specific issue with regard to minority of the petitioner No,1 and no specific issue with regard to devolution of the disputed property after the death of their mother whether the same would devolve upon the legal heirs of Muhammad Akbar Khan or the same would devolve on the legal heirs of Jehan Bakht alone. The learned counsel for the petitioners placed reliance on Mst, Kulsoom Bibi and another v. Muhammad Arif and others (2005 SCM R 135).
3. As against that, the learned counsel appearing on behalf of contesting defendant/respondents submitted that the findings of the two Courts below are the result of proper appreciation of evidence and material available on the record and being concurrent findings of the facts alone cannot be interfered with in exercise of revisional jurisdiction of this Court. His next contention was that the issue of minority of petitioner No,1 was for the first time raised by the petitioner. Had it been so, then they could have easily produced reliable and cogent evidence whereas the record is silent in this regard; the factum of partition deed was within the knowledge of petitioner No,1 as was admitted by him during his cross-examination as APW-1; he challenged the same through present suit in the year 1993 which makes the case of petitioners as barred by law of limitation; the petitioners are also estopped by their conduct reflected during the proceedings of the case as they have accepted and admitted the status of partition ibid and had admitted the partition of rest of the properties mentioned in the deed ibid in accordance with its terms and conditions. He in support of his submissions placed reliance on Kalu Khan and another v. Ghulam Siddiq and 4 others PLD 1991 Pesh. 111, Abdul Majeed and another v. Muhammad Amin (2008 CLC 751), Khadim Muhammad and others v. Tilla Muhammad and others 2005 YLR 2370 and Ghulam Hussain v.
Khawaja Muhammad Iqbal and another (2006 YLR 361).
4. Learned counsel for the parties were heard and record of the case was perused. The record of the case would reveal that the controversy between the parties is with regard to one of the properties mentioned in the partition deed dated 31-3-1957 while the rest of the properties have admittedly been partitioned in accordance with the deed. The pedigree table between the parties is also admitted. However, once this case was remanded by this Court vide its judgment dated 20- 2-2003 rendered in Civil Revision No,273 of 1996 wherein the petitioners were directed to implead the daughters of their predecessor namely Akbar Khan, I e. Their sisteRs, The daughters of the predecessor were accordingly impleaded who filed their written statement and accepted and admitted the status of said partition deed to be genuine and correctly been executed between the parties. However, the defendant/respondent No,1 Muhammad Younis though has not challenged himself the partition deed or has impugned the judgment and decrees of the two Courts below but had admitted the claim of plaintiff/petitioners by submitting their written statement and stated that the claim of defendants 3 to 9 is in collusion with the newly impleaded defendants No,17 and 18 i.e. The daughters of their common predecessor.
5. Before the merits of the case are discussed, it seems appropriate that relevant portion of the partition deed dated 31-3-1957 available on the file be reproduced which reads as Under:- {{URDU TEXT}} ' A look at the contents of the partition deed would reflect that the partition between the parties was effected during the time of customary law prevalent in the area and the property remained in possession of their mother till her lifetime and till the marriage of their two sisters and then it was partitioned between the five brotheRs, Similarly property at Sr. No,3 was given to the father of respondents 3 to 9 i.e. Elder son of Akbar Khan, as a matter of respect being elder brother {{URDU TEXT}} Similarly the disputed property appearing at Sr. No,4 was again given in possession of their mother till her life and the two sisters till their marriages and it was again held that after the death of their mother, the property would be given in the ownership of said Jehan Bakht as a matter of respect being elder brother by using the 1.. term {{URDU TEXT}}
6. Bakht Jehan, the elder son of Akbar Khan, died in the year 1984 prior to the death of his mother i.e. In the year 1990. The dispute between the parties arose when their mother died after the death of Bakht Jehan. The plaintiffs/petitioners claim that since Jehan Bakht had ,died prior to the death of his mother, so this property now would be divided among all the legal heirs of Akbar Khan and the entries of the partition deed {{URDU TEXT}} in this regard would have no effect whereas the respondents i.e. The legal heirs of Jehan Bakht claim it to be the property owned by their father Jehan Bakht as the same was given in hig ownership through partition deed to be received by him after the death of his mother. So, after the death of his mother, the grandmother of respondents 3 to 9, the respondents being L.Rs, of Bakht Jehan are entitled to inherit the property of their father.
7. The controversy between the parties can well be settled if the entire contents of the partition deed ibid are kept in mind. The other properties mentioned in the deed have already been partitioned and there is no dispute with regard to the same between the parties. The petitioners including the other respondents have admitted the grant of property at Sr. No,3 to their elder brother Jehan Bakht, the father of respondents 3 to 9 by admitting his status to be the elder son of Muhammad Akbar Khan according to customary law. So whether at this stage of the case, the petitioners can deny him the said status as given to him in the partition deed regarding the disputed property at Sr. No,4. The answer to this question would be simple "NO" as the property referred to at Sr. No,4 was declared to be the ownership of said Jehan Bakht to be given to him after the death of his mother and marriage of his sisters but unfortunately he died prior to his mother as stated above. His death prior to his mother, to my opinion, would not deprive his legal heirs to claim the inheritance of said property as the same was declared to be his property as per partition deed. The petitioners cannot blow hot and cold in the same breath. At one stage, they admit the grant of property to the predecessor of respondents 3 to 9 as"L,57)Lk', and at second juncture, they deny the same right to them which has been given to their predecessor on the strength of the same partition deed. The partition deed has either to be accepted in toto or to be denied completely. The petitioners cannot be allowed to make pick and choose. So, the findings of the two Courts below are in accordance with the material available On the record.
8. The question of minority of petitioner No,1 as alleged by him is not proved on the record. Though the learned counsel for the petitioners has tried to make out a case by referring to the cross- examination of DW-1 wherein he has stated that age of plaintiff No,1 might be 13/14 years at the time of execution of partition deed but this alone would not absolve him of his legal duty as this never remained their case and the same fact has not been proved by them through any cogent and reliable documentary evidence. If the statement of D.W.1 is accepted and petitioner No,1 is declared minor then its effect would be that entire partition deed, which has been acted upon except the disputed property, would become null and void. The petitioner No,1 who also recorded his statement as APW-1 stated in his cross-examination that he was unaware of his date of birth but he had also accepted the receipt of property on the strength of that partition deed and had admitted his signature on the same. So, once again he cannot blow hot and cold in the same breath. The relevant portion of his cross-examination is reproduced as below:--- {{URDU TEXT}}
9. Yet another aspect of this case is that the petitioner No,1 was fully aware of the partition deed and he has also admitted his signature on said deed. If, for the sake of argument, this Court presumes that he was minor at the time of execution of partition deed, thus under the law he was required to file a suit for declaration within three years of attaining the age of majority as provided under the law but he filed the suit in the year 1993 and the objection regarding his age has been raised for the first time at this stage which he under the law cannot.
10. So, what has been discussed above, the findings of the two Courts below are quite in accordance with law and the concurrent findings of the facts are against the petitioners which cannot be interfered with unless it is established that the same have been based on misreading or non-reading of the material evidence available on the record or the Courts below have unlawfully exercised their jurisdiction vested in them under the law or have failed to exercise the jurisdiction provided under the law. So, in this view of the matter, when the petitioners have failed to make out a case within the framework of section 115, C.P.C., the concurrent findings of the Courts below cannot be interfered with. Hence, instant civil revision is dismissed as such with no order as to costs.