Impugned herein are the judgments and decrees of the two learned Courts below based on concurrent finding recorded on question of facts and law. The learned Civil Judge, Kohat passed a decree for declaration and permanent injunction in favour of the respondents vide judgment and decree dated 13.12.2011, while the learned ADJ-V, Kohat vide her judgment and decree dated 23.02.2012 affirmed and maintained the same in respect of Aamir Khan son of Bahadur Khan and dismissed the appeal of the petitioner against Aamir,
2. The facts of the matter in dispute are that respondents/ plaintiffs filed a suit for declaration alongwith permanent injunction to the effect that the mutation in respect of inheritance of their predecessor Feroz Khan Bearing # 623 attested 28.07.2006 in respect of Khata # 63 Moza Challi Bada Bair, Tehsil Kohat and Mutation # 438 dated 28.07,2006 are against facts, law, sharia and is the result of collusion which was fraudulently entered by the petitioners in their name by excluding the plaintiffs/respondents from the legacy of Feroz Khan, Plaintiffs also claimed to be legal heirs of Feroz Khan and sought their entitlement under Section 4 of the Muslim Family Law Ordinance, 1981 on the ground, that their predecessor Bahadur Khan was also the son of Feroz Khan who died during the life time of his father Feroz Khan and they have the rights of inheritance in the legacy of their grant father. Respondents were summoned. They attended the Court and contested the suit.
Issues were framed from the pleading of the parties. After recording pro and contra evidence the learned trial Court granted decree in favour of respondents/plaintiffs against it. Petitioner filed appeal before learned ADJ which was also dismissed vide impugned judgment and decree dated 23.02.2012. Feeling aggrieved petitioner filed present revision petition.
3. Learned counsel for the petitioner contented that the Hon'ble Federal Shariat Court of Pakistan had declared Section 4 of the Muslim Family Law Ordinance, 1961 against the injunction of Islam.
Thus the provision of the said law cannot be presumed in to service and decree cannot be passed under said provision. That both the Courts below have misread and misinterpreted the evidence available on record and hence reached to a wrong conclusion.
4. The petitioners in their written statement and the evidence produced by the parties have no where denied subsisting legal and blood relationship between the parties. It is proved from the record that predecessor of the respondent/plaintiff namely Bahadur was the real son of Feroz Khan who died prior to the death of his father.
5. Section 4 of Muslim Family Law Ordinance, 1961 clearly entitled the grand children for receiving the share which their father would have inherited, had he been alived. No doubt the theory of Mahjub-ul-Irs has been revived by Federal Shariat Court and Section 4 of Muslim Family Law Ordinance, 1961 has been declared as repugnant to Islamic Sharia yet such verdict has been challenged before the Supreme Court and there by the operation of the verdict stand suspended automatically till the decision of appeal as provided under Article 203-D of Constitution of Islamic Republic of Pakistan 1973, As it is held by august Supreme Court of Pakistan in many cases that the grand children, therefore, can inherit the share of their predeceased father from their grand father.
6. In view of the facts and circumstances of the case narrated above I am of the view that the concurrent finding of both the Court below in respect of legal and factual controversy required no interference by this Court in exercise of revisional jurisdiction. Thus the present revision being devoid of any merit is hereby dismissed with no order as to cost.