' AMIN-UD-DIN KHAN, J. --- Through this civil revision petitioner has challenged the judgment & decree dated 10.1.2013 passed by learned Additional District Judge, Sheikhupura whereby appeal filed by the petitioner was dismissed and the judgment & decree dated 9.3.2011 passed by learned Civil Judge 1st Class, Sheikhupura whereby suit for declaration filed by the plaintiff-petitioner was dismissed.
2. Case of the plaintiff-petitioner that Roshan Din son of Omar Din died in January, 1948 and he was governed by "Zamindara custom" in matter of inheritance. He left Feroz Din a son, Fatima Bibi, Ruqiya Bibi and Nazir Begum three Daughters whereas his two sons Chiragh Din and Siraj Din were predeceased. Askar Ali, his grandson, was alive who was Siraj Din's son and Akbar Ali was son of Chiragh Din, therefore, alive son Feroz Din was entitled to 1/3rd whereas Akbar All and Askar Ali were also entitled to 1/3rd each and daughters were not entitled to inherit the deceased. It' is the case of the plaintiff that mutation of inheritance No, 35 was attested on 24.2.1952 without the knowledge of the predecessor of the plaintiff and the plaintiff, therefore, it is against the law and her predecessor was entitled to inherit the propositus Roshan Din and then she to inherit her predecessor. Suit was filed on 20.9.2001.
3. I have heard learned counsel for the petitioner at full length and with the permission of the Court learned counsel representing respondents also appeared at limine stage.
4. There are concurrent findings of fact recorded by the two Courts below. Courts below have noted and also gone through the statement of PW-1, who has stated in his examination-in-chief that Roshan Din died after the enforcement of Shariat Law i,e, West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948). A party producing a witness is bound by his recitals. Even otherwise, witnesses are also not specific to state in accordance with the pleadings of the plaintiff.
The very statement of Shamim Bibi, the plaintiff, when she appeared as PW-3 stated that her father remained alive 16/17 years after the death of the propositus Roshan Din and he never filed any suit for implementation of his right as claimed by the plaintiff-petitioner. It is admitted by her that no appeal against the attestation of mutation has been filed. In this case death certificate of Roshan Din has been produced as Exh.D.5 wherein date of death has been mentioned as 25.8.1948. This certificate shows that the date of entry of death in register on 28.9.1948. The mutation has been produced as Exh.P.1, which does not show the plaintiff as daughter of Siraj Din or sister of Askar Ali.
In this case it was the duty of the plaintiff to prove that the propositus i,e, Roshan Din died before the enforcement of West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) i,e, before 15th of March, 1948 and further that the family of the propositus was governed by custom and under the custom the daughters of the deceased were not entitled to inherit and the grandsons of the propositus in case of death of the sons in the lifetime of the propositus were entitled to inheritance. All these facts have not been proved by the plaintiff, therefore, both the Courts below came to a right conclusion.
5. The plaintiff has filed a suit for declaration and under Section 42 of the Specific Relief Act, 1877, a declaration can be sought with regard to any legal character or to any right as to the property.
Through a suit for declaration a pre-existing right can be declared but a new right cannot be created. Through this suit plaintiff wants that a new right be created in her favour which is not permissible under the law.
6. Even otherwise, it is admitted fact that rights were never formally acquired by the grandsons of Roshan Din after his death in the suit property therefore while taking light from the celebrated judgment of august Supreme Court of Pakistan reported as PLD 2012 Supreme Court 501 titled "Ghulam Haider and others v. Murad through Legal Representatives and others", I am of the considered view that no decree can be passed in favour of plaintiff/petitioner.
7. For invoking jurisdiction under Section 115 of the C.P.C. The petitioner was required to show that the findings recorded by the two Courts below are result of misreading and non-reading of evidence or some procedural defect fatal to the case has been committed but no such misreading, non-reading or procedural defect has been highlighted nor I find the same in the findings recorded by the Courts below. In this view of the matter, no case for interference by this Court while exercising jurisdiction under Section 115 of the C.P.C. Has been made out, therefore, this civil revision stands dismissed in limine.
Civil revision .