SADAQAT ALI KHAN, J.:- This single judgment shall dispose of Civil Revision No.442-D-2002/BWP titled "Mumtaz Ahmad etc. v. Muhammad Sharif etc." and Civil Revision No.443-D-2002/BWP titled "Abdul Hameed etc. Muhammad Sharif etc. as both above mentioned matters have arisen out of consolidated judgment and decree dated 05.07.2002 passed by learned Additional District Judge, Bahawalnagar according to which both the appeals of the petitioners were dismissed, filed against consolidated judgments and decrees dated 03.07.2001 passed by learned Senior Civil Judge, Bahawalnagar according to which suit for declaration of present respondents/plaintiffs Muhammad Sharif etc. was decreed whereas suit for possession filed by petitioners was dismissed.
2. The brief facts of the case are that Muhammad Sharif etc. respondents filed suit for declaration against present petitioners on 15.10.1988 with the assertions that late Mouj Din s/O Ali Bakhsh ancestor of respondents/plaintiffs and father of the present petitioners owned urban property, whose details are mentioned at the head note of the plaint situated at Bahawalnagar city, died on 22.02.1966 leaving behind the plaintiffs/respondents as well as present petitioners as his legal heirs well mentioned in Para 2 of the plaint. The inheritance mutation No.2548 Exh.P1 of Mouj Din deceased was sanctioned on 15.08.1975 without the knowledge of Muhammad Sharif etc. respondents/plaintiffs. Muhammad Sharif etc. plaintiffs /respondents stated in Para 11 of the plaint that few months prior to filing of the suit on 28.09.1980 it came into their knowledge that disputed inheritance mutation No.2548 Exh.P1 was sanctioned on the basis of "will deed" dated 28.11.1954 Exh.D1 allegedly executed in favour of the petitioners by Mouj Din deceased mentioned above ancestor of the parties as a result of which respondents/plaintiffs were deprived of their legal (Sharaiee) share being legal heirs of Mouj Din deceased. The mutation No.2548 Exh.P1 and "will deed" Exh.D1 are the result of fraud and forgery. It further asserted in the plaint that legal heirs of Mouj Din deceased did not accord their consent in respect of said "will deed" after his death. It is further asserted in the plaint that "will deed" had been prepared through forgery by the present petitioners in their favour to deprive the plaintiffs/respondents of their share and with collusion of the concerned revenue staff and got attested inheritance mutation Exh.P1 on the basis of above mentioned "will deed" Exh.D1. It is further asserted in the plaint that Revenue Officer did not summon all the legal heirs of Mouj Din deceased while sanctioning inheritance mutation No.2548 on 15.08.1975 Exh.P1 on the basis of alleged "will deed" dated 28.11.1954 Exh.D1. On the other hand, present petitioners submitted their written statement and denied the assertions made by plaintiffs/present respondents. Present petitioners also filed suit for possession on the basis of disputed inheritance mutation No.2548 dated 15.08.1975 Exh.P1 against plaintiffs/ respondents.
3. Both the suits were consolidated and out of the divergent pleadings of the parties, learned trial court framed following consolidated issues:- ISSUES
1. Whether the plaintiffs are entitled to the decree for declaration as prayed for by them in the present suit No.638/86? OPP
2. Whether the suit is barred by time? OPD.
3. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction. If so, what is its effect and what is its correct valuation? OPD
4. Whether defendant No.1 to 5 are in possession of the disputed property? If so, what is effect? OPD
5. Whether suit is bad for non-joinder of necessary parties? OPD 6.What is the effect of preliminary objection No.5 of the amended written statement? OPD
7. Whether plaintiffs and defendant No.1 to 7 are the legal heirs of deceased Mouj Din? If so, whether plaintiffs are entitled to receive property of the deceased according to their respective shares? OPP
8. Whether will deed dated 28.11.1994 made by deceased Mouj Din in favour of the defendants No.1 to 5 is illegal, invalid, collusive, mala-fide based on fraud and ineffective against the rights of the plaintiffs? OPP
9. Whether Mutation No.2548 sanctioned on 15.08.1975 on the basis of the impugned will deed is illegal, invalid, collusive and ineffective against rights of the plaintiffs? OPP
10. Whether registered sale deed dated 09.04.1979 by defendant No.4 in favour of the defendant No.8 is without any authority, mala-fide, collusive, without knowledge of the plaintiffs, illegal, and ineffective against the rights of plaintiffs? OPP
11. Whether the defendants No.1 & 2 are entitled to the decree of possession regarding disputed property in their case No.335/85? OPD-1 & 2.
12. Whether the other suit of defendants No.1 & 2 is barred by time? OPP-1
13. Whether the suit No.335/85 is bad for non-joinder of necessary parties? OPP-1
14. Whether the suit No.335/85 captioned as Abdul Hamid Vs. Muhammad Sharif has not been properly valued for the purposes of court fee and jurisdiction? If so, what is its correct valuation and what is its effect? OPP-1
15. Whether the defendants No.1 & 2 have become owner of suit property of the suit No.335/85 by way of adverse possession? OPD-1 & 2
16. Relief.
4. Plaintiffs/respondents produced Sardar Muhammad as PW-1, Khursheed Mehmood as PW-2, Shahab Din as PW-3 and Muhammad Sharif plaintiff No.1 himself appeared as PW-4. Disputed "will deed" dated 28.11.1954 is Exh.D1 whereas inheritance mutation No.2548 dated 15.08.1975 is Exh.P1. On the other hand, from the side of the present petitioners Muhammad Aslam Khan appeared as DW- 1, Muhammad Jameel as DW-2, Bashir Ahmad as DW-3, Taufeeq Ahmad petition writer as DW-4, Muhammad Sharif as DW-5, Nausher Muhammad record keeper DC Office Bahawalnagar as DW- 6, Khushi Muhammad Assistant Qanoongo Tehsil Office, Bahawalnagar as DW-7, Muhammad Saleem Registry Clerk Sub Registrar Office Bahawalnagar as DW-8 and Abdul Hameed one of the petitioners as DW-9 and produced in documentary evidence documents Exh.D1 to Exh.D7 but relevant documents are "will deed" Exh.D1 and inheritance mutation Exh.P1. Learned trial court after hearing arguments of both the learned counsel for the parties decreed the suit of Muhammad Sharif etc. respondents/plaintiffs whereas dismissed the suit for possession filed by the present petitioners vide consolidated judgment dated 03.07.2001. Both separate appeals filed by the present petitioners were also dismissed by the learned Additional District Judge, Bahawalnagar vide consolidated judgment and decree dated 05.07.2002.
5. Learned counsel for the petitioners in both the Civil Revisions submitted that judgments and decrees of both the courts below are against law and facts on the file and are liable to be set aside. It is contended that both the courts below have misread the evidence. It is lastly contended that both the Civil Revisions may be accepted and suit filed by Muhammad Sharif etc. respondents/plaintiffs may be dismissed whereas suit for possession filed by the present petitioners may be decreed.
6. On the other hand no one is present from the side of the respondents.
7. I have heard the learned counsel for the petitioners and perused the record.
8. Facts of the case have been mentioned in Para 2 of this judgment, therefore, there is no need to repeat the same to avoid duplication and repetition.
9. Admittedly suit property was owned by Mouj Din ancestor of the parties who died on 22.02.1966.
Inheritance mutation No.2548 dated 15.08.1975 Exh.P1 pertaining to Mouj Din owner of the suit property was sanctioned in favour of the present petitioners on the basis of "will deed" dated 28.11.1954 Exh.D1 allegedly executed by Mouj Din deceased in favour of the petitioners by depriving of his other legal heirs without their consent.
10. Relevant section 117 of Muhammadan Law regarding making of "will" is hereby reproduced as under:- "Bequests to heirs. - A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator (l). Any single heir may consent so as to bind his own share (m).
Explanation. - In determination whether a person is or is not an heir, regard is to be had, not to the time of the execution of the will, but to the time of the testator's death."
11. I have perused the record carefully but present petitioners have failed to prove that legal heirs of deceased Mouj Din had given their consent in respect of the disputed "will deed" Exh.D1 in favour of the present petitioners. Further a Muslim cannot transfer his property through "will deed" in excess of one third share thereof that also with the consent of other legal heirs. For reference section 118 of Muhammadan Law is hereby reproduced:- "Limits of testamentary power. - a Mahomedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator (e)"
12. In view of the above discussion "will deed" Exh.D1 was not a valid document and inheritance mutation Exh.P1 could not have been sanctioned on the basis of that "will deed" Exh.D1 in favour of the present petitioners by depriving of other legal heirs of Mouj Din deceased Muhammad Sharif etc. respondent/plaintiff whose detail is well mentioned in Para 2 of the plaint. Both the courts below have rightly decreed the suit of Muhammad Sharif etc. respondents whereas have rightly dismissed the suit for possession filed by the present petitioners. Impugned judgments and decrees of the courts below are not result of misreading or non reading of evidence. Learned counsel for the petitioners could not point out any illegality in the impugned judgments and decrees of the courts below. Reliance is placed on case Reliance is placed on case "Cantonment Board through Executive Officer Cantt. Board Rawalpindi VS. Ikhlaq Ahmad and others" 2014 SCMR 161 in which august Supreme Court of Pakistan observed as under: "It is not the requirement of law that the High Court in exercise of its revisional jurisdiction to discuss the findings recorded by the courts below on each issue, particularly when it concurs with them.
The scope of revision is narrow and requires the High Court to examine whether the courts below have failed to exercise jurisdiction so vested in them or have acted in exercise of its jurisdiction illegally or with material irregularity and have misread the evidence brought on record by the parties. In other words, the provisions of section 115, CPC under which a High Court exercises its revisional jurisdiction, confer an exceptional and necessary power intended to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities. The revisional jurisdiction of the High Court cannot be invoked against conclusions of law or fact, which do not, in any way, affect the jurisdiction of the court. In the instant case, the learned High Court, in law, could not have investigated into the facts or exercised its jurisdiction on the basis of facts or grounds, which were already proved by the parties by leading evidence. We are of the considered view that the judgment impugned in these proceedings is unexceptionable. The learned High Court was justified in not interfering in the concurrent findings of fact which were based on the material brought on record and proper appreciation of evidence.
For the aforesaid reasons, we do not find any infirmity in the impugned judgment, which could warrant interference by this court. Resultantly, this petition is dismissed and leave to appeal is refused."
13. For the foregoing reasons, these Civil Revisions have no merits and are dismissed.