' SHAH JEHAN KHAN AKHUNDZADA, J.- Respondents were put on pre-admission notice by a learned Bench of this Court on 19-7-2012 so as to consider the contradictory findings of the trial and appellate Courts on contentious issues given by two learned Courts below vide their Orders/judgments and decrees dated 16-6-2011 and 20-3-2012, which have been assailed by way of this revision petition.
2. I have heard learned counsel for the parties and have also gone through the record.
3. Assertion of Petitioner/plaintiff No,l in his plaint was that he is nephew of late Ajarh Khan, who was owner of the suit house and died issueless. He being his sole legal heir is entitled to inherit his share and respondents/defendants have no right either to assert their title over the suit house or interfere in his possession. The respondent/defendant No,l rebutted the claim of plaintiff/petitioners on the ground that he has duly purchased the suit house through various documents and is in possession of the same since long wherein he has also made sufficient improvements. The stance of plaintiff No,l being legal heir oflate Ajarh Khan was also denied. In response to the summons issued by trial Court, only respondent/defendant No,l appeared and submitted his written statement, wherein he denied the claim of the plaintiff/petitioner by raising various legal and factual grounds. Divergent pleadings of the parties were reduced to the following issues by the trial Court, which are as follow
(1) Whether plaintiff has got a cause of action?
(2) Whether the suit is competent in its present form?
(3) . Whether the suit is within time?
(4) Whether the suit is hit by section-11 of C.P.C.?
(5) Whether plaintiff being the sole legal heir of late Ajarh Khan is the exclusive owner of suit house?
(6) Whether defendant No,l vide purchase of suit house through different deeds is the Owner in possession of suit house?
(7) Whether defendants are entitled for compensatory cost lender section-35A of C.P.C.?
(8) Whether plaintiff is entitled to the decree as prayed for?
(9) Relief.
4. Plaintiffs produced five witnesses in support of their claim whereas defendants produced six witnesses. Plaintiffs produced no pedigree-table to prove that plaintiff No, 1 was legal heir of Ajarh Khan. On the other hand, defendants relied on unregistered sale-deeds dated 4-8-2008 and 10-11- 2009 (Exhs.DW1/1 and DW1/2), whereby Mst. Zarwari, sister of Ajarh Khan daughter of Ajoon Khan and Ajarh Khan son of Ajoon Khan had sold their shares to respondent/defendant No,l. Besides, they also relied upon the written verdict of Jirga (Exh.DW 2/l) and decisions of Courts in the earlier round of litigation between the parties over the same land. The trial Court while deciding Issues Nos,l, 8 and 5 held that not only plaintiff No,l miserably failed to produce any valid documentary proof in the shape of pedigree-table of late Ajarh Khan for thq purpose of establishing his relationship with the deceased but he in his statement has also admitted that late Ajarh Khan had left three daughters; hence in presence and lifetime of daughters of late Ajarh Khan, plaintiff could not become a legal heir and claim his exclusive ownership over the suit house. The non- impleadment of other legal heirs of late Ajarh Khan was also treated as fatal when the matter involved in the case was that of inheritance. The. Above findings were also upheld by the appellate Court and rightly so.
5. Under issue No,6, the trial Court has come to the conclusion that although defendant/respondent No,l did produce the scribe and marginal witnesses of. The deeds in question but they contradicted each others on the point as to whether the sale consideration was paid in presence of the scribe or not and, therefore, the deeds in question were not worth, reliance to prove ownership of defendant/respondent No,l. This finding of the trial Court, however, did not find favour with the appellate Court, as the matter was not only resolved through constitution of a Jirga on 16-10-2007 but the respondent had duly proved- the execution of deeds, Exhs.DWl/1 and DW1/2. By producing its scribe and marginal witnesses, who have unanimously stated that in their presence the deeds were thumb-impressed/signed by both the parties;
6. A look at the evidence would indicate that late Ajarh Khan remained alive for sufficient time even after the execution of deed in question. Learned counsel for respondents produced a copy of order of learned Additional District Judge- VII, Mardan in Review Petition in Civil Appeal No,1/12 of 2012, whereby review petition of present petitioner No,1 was dismissed against the judgment dated 16-4- 2012 whereinitwasheldthatAjarhKhanhimselfhadalienatedthesuit house in favour of Fazal Hadi (respondent No,1 herein) during his life time.
7. In view of the above facts, this Court is of the view that findings of appellate Court on issue No,6, being based on proper appreciation of the evidence available on record suffers from no patent illegality or irregularity. Learned counsel for petitioners is also unable to point out any misreading or non-reading of evidence on part of the Courts below as in essence both the Courts below have simultaneously non-suited the petitioner for his alleged claim of ownership over the suit house on the ground of being an exclusive legal heir of late Ajarh Khan to which no valid exception could be taken in the revisional jurisdiction of this Court and the revision petition in hand, being without force, is hereby dismissed. The parties are however left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.