' MIAN FASIH-UL-MULK, J.---Suit brought by petitioners against respondents to the effect that they being descendants of Chareer Baba are entitled to the suit property in equal shares with respondents failed before the trial Court for the reason that pedigree-table attached with the plaint was prepared by petitioners on hearsay and same being not coming forth from any authentic source as well as denied by respondents was, therefore, not worth reliance. The appellate Court affirmed the judgment of the trial Court, which was set aside by this Court in Civil Revision No, 517 of 2001 vide judgment dated 12-5-2003 and case was remanded back to it for decision on merits strictly in accordance with law but the appellate Court, after remand, again endorsed the judgment of the trial Court vide impugned judgment, hence instant revision petition.
2. I have heard learned counsel for the parties and perused the record.
3. A look at the pedigree-table attached with the plaint would show that Chareer Baba was predecessor of the parties, who had two sons namely Zardan Baba and Gharib Shah Baba.
Petitioners are posing themselves to be the descendants of Zardan Baba whereas respondents are shown to be the descendants of Gharib Shah Baba.
4. Abdul Raqeeb, respondent No,3, has recorded his statement as DW-1. In cross-examination he has admitted that respondents and petitioners both are from Sandoji caste. He disclosed the name of his grand-father as Aziz and his father name as Gharib Shah. The above predecessors of respondents are shown in the pedigree-table as successors of Chareer Baba. One Muhammad Shah Khan, an independent witness, was produced by defendants as DW-2, who too affirmed the fact that both the parties relate to caste Sandoji and the suit land has been devolved upon respondents as inheritance from their forefathers step by step. He furthe; affirmed that Chareper Baba was their predecessor and both the parties are in possession of landed property. DW-3 Gul Akbar also stated the same facts with addition that both the parties being Chatar Bayore Khona, all of them are known by the name of Chareer Baba.
5. Petitioner No,1 appeared as P. W.1 and while reiterating the contents of plaint stated that both the parties being legal heirs of Chareer Baba are in possession of their respective properties except the disputed one, which is joint between the parties and on which a dispute had arisen between them resulting into filing of a complaint by petitioners against respondents in the Court of EAC Sheringal but the matter being civil in nature was filed.
6. In view of the above facts, there remains no doubt that the pedigree-table prepared by petitioners is correct and as per evidence on record, both the parties are the descendants of Chareer Baba. Once it is established on record that the parties are descendants of Chareer Baba, A the entire property devolved on them shall be deemed to be joint for all intents and purposes and the respondents cannot assert their exclusive right thereon. There is also an Iqrar Nama available on file, which is arrived at between respondents and one Mohammad Said Khan son of Abdur Rahim, wherein it has been agreed that the latter had destroyed. The house of former at shell; hence they have pardoned the latter for this act, whereas the latter has withdrawn from the dispute of properties with the former at Warsho and Sharai. As per pedigree-table, Muhammad Said Khan is son of Abdur Rahim, a legal heir of Zardan Baba. The learned Courts below have therefore erred in concluding that petitioners have failed to prove the genuineness of pedigree- table, duly exhibited on record.
7. Learned counsel for petitioners contended that when the pedigree-table was declared by respondents to be a forged one, then the burden to prove it had shifted to the defendants but they have miserably failed either to produce the correct pedigree-table or any cogent evidence in this regard. The learned counsel for respondents on the other hand contended that the plaintiff has to stand on his own legs and it was for petitioners to have proved the same as genuine. It is well established principle of law that when both the parties to a suit leads their evidence on an issue, in that case placing of onus to prove on one or the other party loses its significance as the issue is to be decided on the basis of preponderance of evidence. Reliance can be placed on the judgment of the august Supreme Court of Pakistan rendered in the case of Zaheer Ahmad Qureshi through Legal Heirs v. Syed Iftikhar Hussain Shah (1999 SCM R 2605).
7(sic). Learned counsel for respondents, when was confronted with above legal and factual position of the case, he laid much stress on the point that instant petition is liable to be dismissed for the reason that the same is hopelessly barred by time and that private partition has taken place centuries back between the tribes and every tribe is in possession of their respective share.
8. The argument of learned counsel for respondents in the facts and circumstances of instant case is not much forceful. Adverting to the question of limitation, the appellate Court announced the judgment on 5-11-2003. Petitioners filed application for supply of certified copy on 12-1-2004, which was supplied to them on 12-3-2004 whereafter the instant petition was filed on 16-3-2004. The revision petition was thus filed well within time. Learned counsel when confronted, he conceded and did not press the objection of limitation seriously. Even otherwise, when the question of inheritance is involved in a case, the view of the Hon'ble apex Court in the case of Nazir Ahmad and others v. Abdullah and others 1997 SCM R 281 is that the Courts should make efforts to ensure that no legal heir is denied of his legal share in estate of deceased concerned on a technical ground. As far as the submission of learned counsel for respondents regarding private partition is concerned, nothing is available on record to this effect. Neither the plea of private partition was asserted by respondents in their pleadings nor the same was proved' through any evidence. Not a single word has been uttered by the respondents which plea for the first time at revisional stage is nothing but an afterthought and an attempt to make out a new case.
9. It is well settled that civil cases ought to be decided on probabilities only as to which of the party has probably proved its case or in other words which of the party being true should succeed and be granted the relief. In the case of Yar Muhammad Khan v. Bashir Ahmad (PLD 2003 Peshawar 179). This Court has held that:- "Such approach by Courts below ran counter to sound judicial principles because rules and standards for appraisal of evidence in civil cases were different from those employed in criminal cases as the law has laid down different standards of proof for different categories of cases."
10. Keeping in view the above facts and circumstances of the case, I am of the view that both the Courts below have failed to appreciate the evidence in its true perspective and has committed an illegality by non-suiting the petitioners. Where the concurrent findings of facts by the Courts below are found perverse, arbitrary or fanciful the same could be interfered with in exercise of revisional jurisdiction of the High Court under section 115, C.P.C. In this case too, the findings of both the Courts below are not only arbitrary but fanciful and the result of misappreciation of law. Reliance in this regard can be placed on the dictum laid down by the august Supreme Court of Pakistan in the.
Case of Muhammad Akbar v. Mst. Manna and 3 others (2001 SCM R 1700).
11. Consequently, this Court has no option but to allow this revision petition by setting aside the findings of the two courts below and suit of the plaintiff-petitioners stands decreed with no order as to costs.