' This revision, petition is directed against the judgments and decrees dated 22.05.1986 and 27.04.1993 passed by the learned Civil Judge, Vehari and an Additional District Judge, Vehari, respectively, whereby suit for declaration along with perpetual injunction instituted by the petitioners was dismissed and an appeal preferred thereagainst was dismissed as well.
2. Concisely put, the facts are that the petitioners instituted a suit for declaration along with perpetual injunction, maintaining that Mst. Atta Ellahi, widow of Rab Nawaz died issueless on 04.04.1978 and they being her collaterals were entitled to the bequest left by her. At the time of her death, Mst. Atta Ellahi was owner of land measuring 1232 Kanals, 1 Marla (the description whereof has been set out in the head note of the plaint), situated in village Mira, Tehsil Mailsi, District Vehari.
Mutation of Inheritance No, 93 was attested in favor of the petitioners on 10.03.1979, regarding them as the collaterals of Mst. Atta Ellahi. Ahmed Yar Khan, Muhammad Malook Khan and Mst. Sardar Ellahi, Defendants Nos. 1 to 3 challenged the legality of the aforesaid mutation before the Collector/A.C, Mailsi, who set aside the same vide order dated 29.01.1980, remanding the matter to the Revenue Officer for decision afresh. As a result, the Revenue Officer passed a fresh order dated 18.02.1980 by which Ahmed Yar Khan and Muhammad Malook Khan were treated as sons of Mst.
Atta Ellahi deceased, while Mst. Sardar Ellahi was regarded as her daughter, thereby excluding the petitioners from her inheritance. Consequently, Mutation No, 93 was attested on 18.02.1980 in favor of Defendants Nos. 1 to 3. It is further alleged in the plaint that the defendants colluded with each other and filed civil suits against one and another with the intent to deprive the petitioners/plaintiffs of inheritance. The validity of the decree dated 21.11.1978 passed by the learned Civil Judge, Mailsi was also called into question. In addition, three gift deeds Nos.966, 1315 and 1333 dated 24.05.1976, 03.08.1976 and 04.08.1976, respectively were also challenged. Likewise, a will in favor of Muhammad Hussain and Allah Ditta Khan, Defendants Nos. 8 and 9 was sought to be declared null and void. The sum and substance of the claim of the petitioners was, is that the defendants are not concerned with the suit land and all mutations, gift deeds and the will attested and executed in favor of defendants were the outcome of fraud and misrepresentation, and as such ineffective upon the rights of the plaintiffs.
3. The defendants entered appearance and filed a detailed written statement. They denied each and every assertion made by the plaintiffs. They also raised preliminary objection to the maintainability of the suit. It was also emphasized by them that since the earlier suit instituted by the petitioners was dismissed, the instant suit was barred by various provisions of the Civil Procedure Code, 1908.
4. Given the divergent pleadings of the parties, following issues were framed: ISSUES:
1. Whether the suit is not maintainable in its present form? OPD
2. Whether the suit is deficient in. Court Fee, if so its affect? OPD
3. Whether the suit is barred by time? OPD
4. Whether the plaintiff has neither cause of action nor locus standi to bring this suit? OPD
5. Whether the suit is hit by res judicata? OPD
6. Whether the Civil Court has no jurisdiction to entertain the suit? OPD
7. Whether the description of the suit property is incorrect. If so its effect? OPD
8. Whether the suit is vague? OPD
9. Whether Defendant No, 9 is minor and the suit is bad to his extent? OPD
10. Whether the suit is mala fide, if so its effect? OPD
11. Whether the plaintiffs area the joint owners with Defendants Nos. 1 to 5 of the suit land as heirs of Mst. Atta Ellahi deceased and as such inheritance Mutation No, 93, registered Tamliq Namas 966 dated 24.05.1976, dated 03.08.1976 and 04.08.1976 and the decrees passed by Senior civil Judge dated 11.12.1979 and of Civil Judge, Mailsi dated 21.11.1978 are illegal, void and ineffective upon the rights of the plaintiffs? OPP.
12. Relief.
5. In support of their case, the plaintiffs produced only one witness. Taj Muhammad was examined as P.W.1, while one of the plaintiffs, namely, Bashir Ahmed appeared as P.W.2. In documentary evidence, they tendered copy of Mutation No, 93 as Ex.P.1, copies of three Tamleek Nama Jat as Ex.P.2 to Ex.P.4, copy of plaint as Ex.P.5, copy of a decree as Ex.P.6, copies of two other plaints as Ex.P.7 & Ex.P.8, copy of an agreement to sell as Ex.P.9, copy of Jamabandi for the year 1932-33 as Ex.P. 10, copy of the pedigree table as Fx.P.11, statement of Malook Khan as Ex.P.12, copy of Mutation No, 93 as Ex.P.1 3, copy of Jamabandi for the year 1914-15 as Ex.P.14, copy of Jama Bandi for the year 1935-36 as Ex.P.15, copies of Reports dated 20.07.1979 and 24.02.1979 as Ex.P.16 and Ex.P.17.
6. In rebuttal, the defendants examined Muhammad Saddique as D.W.I, Muhammad Ashraf, Head constable as. D.W.2, Haji Muhammad Anwar, Patwari as D.W.3, Muhammad Sharif, Record-keeper as D.W.4, Malik Ghulam Rasul as D.W.5, Muhammad Ali as D.W.6, Rafique Aslam Khan as D.W.7 and Muhammad Malook Khan, Defendant No, 2 appeared as D.W.B. In documentary evidence, the defendants produced as many as 52 documents, which were got exhibited as Ex.D.1 to Ex.D.52. They consisted of copies of mutations, Jamabandis, gift deeds, pedigree tables, copies of the pleadings, copies of the judgments and decrees of the Courts/orders passed by the Revenue Authorities etc. Etc.
7. The learned trial Court seized with the suit dismissed the same vide judgment and decree dated 22.05.1986. Feeling aggrieved, the petitioners preferred an appeal, which was also dismissed by the judgment and decree dated 27.04.1993. Hence this appeal.
8. It is pertinent to mention that this revision petition was earlier dismissed by this Court by the order dated 24.09.2012. However, the Honourable Supreme Court of Pakistan set aside the aforesaid order in Civil Appeal No, 40 of 2013 by the order dated 18.04.2013, thus remitting the matter to this Court for decision afresh.
9. In support of this revision petition, learned counsel for the petitioners argues that both the learned Courts below misapprehended the facts, misconstrued the documents and misapplied the law. Both of them fell in serious error in appreciating the controversy in perspective. They misread the record, recorded erroneous findings and drew wrong inferences front the evidence produced by the parties. He further submits that the provisions of Order XLI, Rule 31 C.P.C. Were disregarded. It has also been urged that since issue wise findings were not given by the appellate Court, the impugned judgment was passed in utter violation of the provisions contained in Order XX, Rule 5 C.P.C. The finding of the Courts on Issue No, 5 was criticized by making the submission that the earlier litigation between the parties was in relation to another subject matter. The judgments and decrees passed by the Courts in favor of the defendants were challenged on the ground that they were collusive and since the very validity thereof was challenged through the instant suit, the learned Courts below could not non-suit the petitioners on the basis of very those documents. It was lastly argued that the three gift deeds in favor of three defendants were not proved.
10. Conversely, learned counsel for the defendants/respondents has supported the impugned judgments and decrees. It has been argued that they are well-reasoned judgments and since the petitioners have failed to pinpoint any misreading or non-reading of evidence on the part of the learned Courts below, the findings recorded by them cannot be interfered with in the revisional jurisdiction. It is lastly argued that a number of documents are thirty 30 years old. When they came to into existence, there was no controversy between the parties to the suit as to the inheritance of Mst. Atta Ellahi. Therefore, the learned Courts below rightly placed implicit upon them to come to the conclusion that the petitioners are strangers to the legacy left by Mst. Atta Ellahi.
11. I have heard the learned counsel for the parties at considerable length and perused the record with their assistance.
12. Before dilating upon other contentions of the learned counsel for the parties, I would first take up Issue No, 5, which was framed as under: "Whether the suit is hit by res judicata? OPD"
' In order to prove this issue, the defendants tendered Ex.D.49, Ex.D.50 and Ex.D.51. The validity of these documents has not been challengedby the petitioners. From a perusal of these documents, it is abundantly clear that the petitioners had filed another suit regarding the very same land and the defendants in this suit were cited as defendants therein as well. The suit was being tried by a competent Court of law. It also stands established that the first suit was dismissed on account of the failure of the plaintiffs/petitioners to produce evidence. The question is whether the judgment and decree passed in the circumstances would constitute and operate as res judicata within the meaning of Section 11 C.P.C. This question came up for consideration before this Court in the case of "Inayat Ullah v. Khan Begum" PLD 1958 (W.P.) Lahore 686 and was answered as follows: ' If a plaintiff or defendant has failed to produce his evidence and the Court, under Order XVII, Rule 3, C.P.C, proceed to decide the suit forthwith on the basis of such material as is before it, it may result in dismissal of the suit for want of evidence or an ex parte decree for want of any disproof of the plaintiffs evidence, but in either case it is a decision on merits and a fresh suit on the same cause of action will be barred under Section 11 C.P.C. "
(emphasis added)
' The above decision was followed in the case of "Niaz Ahmed Khan v. Kishwar Begum and 19 others"
(PLD 2003 Lahore 48). It is hard to understand why Issue No, 5 was not treated as a preliminary one and why the parties were made to undergo the agony of a protracted trial. Be that as it may, the fresh suit instituted by the petitioners was hit by the provisions of Section 11 C.P.C. Besides, the provisions of Order II, Rule 2, C.P.C. Were an insurmountable hurdle in their way. If they had omitted to put forward their entire claim in the former suit and they did so without taking the permission of the Court, they could not turn round to bring a new suit, including therein the claim, which they forgot to make in the former suit.
13. Although it appears wholly unnecessary to discuss other evidence, I have carefully gone through the impugned judgments to find out as to whether they did not follow the principles for the appraisal of evidence or drew such conclusions from the evidence as are untenable. The approach of the learned appellate Court in dealing with the questions at issue is evident from a portion of its judgment on page 9, which is worth reproducing: "A copy of Mutation No, 222 attested on 04.01.1955 was produced as Ex.D.10. A pedigree table on this document was drawn which shows that Respondents/Defendants Nos. 1 to 3 were sons and daughter of Mst. Atta Ellahi. Similarly Mutation No, 223 attested on the same date was produced as D.11, wherein the pedigree table was also drawn which indicates that Respondents Nos. 1 to 3 were sons and daughter of Mst. Atta Ellahi. A pedigree table drawn on Mutation No, 218 attested on 27.6.1953 produced as Ex.D.14 also proves the relationship of Respondents Nos. 1 to 3 with Mst. Atta Ellahi. All the above said documents are public documents and are 30 years old; hence the authenticity of these documents can in no way be doubted. It is pertinent to mention here that when the above said documents were prepared and mutations were attested, there was no dispute about the distribution of legacy of Mst. Atta Ellahi. Furthermore, pedigree table produced as Ex.D.5 which was annexed with the Jamabandi for the years 1981-82 also shows Respondents Nos. 1 to 3 as sons and daughter of Mat. Atta Ellahi."
14. From a perusal of the documents mentioned in the above extract from the impugned judgment of the appellate Court, two things stand out: one, Mst. Atta Ellahi was not issueless and that two sons and one daughter (Defendants Nos. 1 to 3) were born to her, knocking the bottom out of the case of the petitioners, and, two, these documents were thirty years old, carrying a presumption of truthness in terms of Section 90 of the Repealed Evidence Act, 1872, corresponding to Article 100 of the Qanun-e-Shahadat Order, 1984. The principle embodied therein is based on common sense and experience. On the one hand, there is little possibility of forgery and fabrication of such old documents, particularly when they come from the proper custody and form part of the public record. It can hardly be overemphasized that a whole generation perishes in thirty years, while another one comes up to take its place, as was observed in the case of "Ghulam Nabi and others u.
Mst. Zainab Bibi and others" (2005 MLD 153). In the instant case, when Mutation No, 222 (Ex.D.10), Mutation No, 223 (Ex.D.11) and Mutation No, 218 (Ex.D.14) were attested, it could not have been contemplated that a controversy would arise as to the bequest of Mst. Atta Ellahi. I am in full agreement with the learned appellate Court regarding the views expressed by it in relation to the aforesaid documents. It is also well settled that "men can tell lies but the documents cannot". In this respect, reference may be made to the case of "Mst. Sofia u. Mst. Bibi and 14 others" (2005 MLD 646). That is why documents and the statements contained therein are always preferred to the oral testimony.
15. Time and again, it was argued that the appellate Court is bound to give issue wise fmdings. It was contended that since the appellate Court did not follow the provisions contained in Order XX C Rule 5 read with Order XLI, Rule 31 C.P.C., its judgment is liable to be set aside on this score alone.
Such an argument was repelled by the august Supreme Court of Pakistan in the case of "Muhammad Amir v. Muhammad Sher" (2006 SCMR 185) by holding as under: "It is well-settled by now that a judgment which deals with all the points raised fulfils the requirements of law even though it may not have discussed each issue separately cannot be termed as "illegal or ab initio void" as pressed time and again by the learned Advocate Supreme Court on behalf of the petitioner. If any reference is required the dictum laid down in Umar Din v.
Ghazanfar Ali 1991 SCMR 1816 can be referred."
16. Apart from the bald assertions made by the petitioners' side, they have not pointed out any misreading or non-reading of the evidence on the part of the learned Courts below. They have also not been able to rebut the case of the defendants, which they substantiated by adducing voluminous evidence consisting of public and judicial record, the authenticity of which is not open to question. It is well- established law that this Court is not to interfere with the concurrent findings recorded by the learned Courts below in routine. In this respect, reference my well be made to the judgments of the honourable Supreme Court of Pakistan reported as "Kanwal Mian and 3 others v.
Fathe Khan and others" (PLD 1983 SC 53); "Abdul Mateen and others v. Mst. Mustakhia" (2006 SCMR 50); "Muhammad Feroze and others v. Muhammad Jammat Ali" (2006 SCMR 1304); "Shaft Muhammad and others v. Khanzada Gul and others" (2007 SCMR 368); "Hakimud-Din through L.Rs, and others v. Faiz Bakhsh and others" (2007 SCMR 870) and "Mst. Zaitoon Begum v. Nazar Hussain and another" (2014 SCMR 1469).
17. This brings me to another contention raised in the revision petition, but not urged during the course of arguments. It seems that an application was moved by the petitioners before the learned appellate Court under Order XLI, Rule 27, C.P.C., seeking to produce additional evidence, but the same was turned down by it. However instead of disposing of this application independently, the learned appellate Court preferred to dispose it of through the impugned judgment and decree dated 27.04.1993. There is no law that such an application cannot be decided along with the main appeal or through the very same judgment. Incidentally, C.M.Nos.766-C-2010, C.M.No, 2704 of 2014 and C.M.No, 1518 of 2013 were moved before this Court for the production of additional evidence.
The respondents/defendants resisted these applications tooth and nail. Given the voluminous record of the case, which by itself is sufficient to decide the controversy between the parties, a question mark hangs over the maintainability of the applications for the production of evidence in a revision petition. In the case of Muhammad Feroz v. Muhammad Jammat Ali (2006 SCMR 1304) it was observed by the Honourable Supreme Court that "No party is entitled to produce additional evidence in appeal, muchless at revisional stage unless considered necessary by the Court." These applications being misconceived and untenable are dismissed.
18. For what has been stated above, this revision petition being devoid of merits is dismissed.