' YAHYA AFRIDI, J.---The legal heirs of Late Shad Muhammad and Late Shamshad Khan have through this instant petition challenged the judgment and decree dated 22-6-2004 passed by the learned Additional District Judge, Peshawar, whereby the appeal of the petitioners was dismissed and the judgment and decree dated 25-3-2003 passed by the learned Civil Judge, Peshawar was maintained.
2. The brief and essential facts, which are evident from the record, are noted as follows:-- ' Parties.
' Afzal Khan, is the 'predecessor-in-interest' of the petitioners and respondents Nos.1 and 2 and was survived by two sons; Madat Khan and Sher Ali.
' The present petitioners are the legal heirs of Sher Ali, who had two sons, namely, Shamshad Khan and Shad Muhammad.
' Respondents Nos.1 and 2 derive their interest in the present petition through Madat Khan, who had four sons, namely; Mukaram Khan, Saadat Khan (died issueless), Lakhkar Khan (died issueless) and Haider Khan (died issueless) and the present contesting respondents Nos.1 and 2 are the daughters of Mukaram Khan, being, his only offsprings.
' Disputed property 'Malkiat' Land; 23 kanals in 'mauza Chagharmati' , Tehsil, Peshawar.
(ii) 'Shamilat' Land: 133 kanals in 'mauza Chagharmati' , Tehsil Peshawar.
' Disputed Mutations:
(i) Mutation No.461 dated 11-12-1938. This mutation purports to record the transfer of the legacy of Haider Ali, who died issueless, in equal shares to Shad Muhammad and Shamshad Khan sons of Sher. Ali (petitioners) on the one hand and Mst. Sarwara and Mst. Omtul Aisha daughters of Mukaram Khan,(Respondents Nos.1 and 2) on the other hand. ("Mutation No.461")
(ii) Mutation No.1419 . Dated 26-7-1972. This mutation records the culmination of the partition proceedings of which the present petitioners are aggrieved claiming that respondents Nos.1 and 2 Mst. Sarwara and Mst. Omtul Aisha, have been illegally rendered more property than their due entitlement under the law; In fact, the petitioners' shares had been transferred to the respondents Nos.1 and 2 and thereby deprived the petitioners of their lawful proprietary rights ("Mutation No.1419).
Events ' 10-11-1977 Shad Muhamnuld and legal heirs of Shamshad Khan sons of Sher Ali instituted a suit Mst. Samara and I\ Ist. Mail Aislia daughters of Mukaram Khan (respondents Nos.1 and 2) claiming that:- ""(i) Declaration to the effect that plaintiffs are owners in possession of the property fully detailed in the heading of the plaint. Plaintiffs further seek the declaration that defendants have already sold out their entire share out of the suit property and entry of 23 Kanals in the name of the defendants is wrong and liable to be corrected in favour of the plaintiffs. Further that defendants have no share in the shamilat land. Further plaintiffs have challenged the partition proceedings.
(ii) Recovery of possession in respect of the property fully described in the heading "B" of the plaint."
' Based on the contested pleadings of the parties, the trial Court framed the following issues:-
(1) Whether the plaintiffs have got a cause of action?
(2) Whether the suit is competent in its present form? (3). Whether the plaintiffs are estopped to bring this suit?
(4) Whether the Court has got jurisdiction?
(5) Whether the suit is filed within time?
(6) Whether the suit is hit by section 11 of the Code of Civil Procedure?
(7) Whether the defendants 1 and 2 have not sold their rights to the extent of 23 kanals in the suit land to the plaintiffs and the suit of the plaintiffs is misconceived?
(8) Whether the suit is bad for non joinder of necessary parties?
(9) Whether the rights of the defendants 3 to 6, 15, 82, 89, 102, 103, 46, 137, 199, 140 to 143, 62 to 64, 59 and 69 are protected under section 41 of the T.P. Act?
(10) Whether the defendants mentioned above have purchased the suit land from the defendants Nos.1 and 2 in the column of cultivation?
(11) Whether the plaintiffs are entitled to the declaration as prayed for?
(12) Whether the plaintiffs are entitled to the alternative relief as prayed in Bai of the heading of the plaint?
(13) Relief.
' 17-3-1997 The trial Court partially decreed the suit in favour of the plaintiffs/petitioners and against the defendants/respondents.
' 19-9-1998 Application of the petitioners before the Appellate Court to place on record documents relating to auction of property of Saadat Khan and his father Madad Khan.
' 26-11-1998 The appellate Court also partially allowed the appeal of the present respondents/defendants by setting aside the judgment of the trial Court and remanding the case back to the trial Court with the direction to record fresh evidence of the 'Patwari Halqa' and the ADK and also to place on file the entire record with regard to the confiscated property with full details.
' 25-3-2003 The trial Court partially decreed the suit to the extent of 504 kanals and 15 marlas of the 'shamilat' land. The remaining claim of the plaintiffs/present petitioners was dismissed for want of proof.
' 22-6-2004 The appellate Court maintained the judgment and decree passed by the trial Court and dismissed the appeal of the present petitioners.
' Hence, this revision petition.
3. Learned counsel for the petitioners contended that the Courts below left undecided the issue, as to who was entitled to inherit of estate of Haider Khan; that the petitioners had submitted an application before the learned appellate Court for production of certified copies of auction proceedings to prove the confiscation of property of Madad Khan, which was also left undecided; that the appellate Court neither decided the fate of the said application nor considered the documents annexed with the same; that the legacy of Haider Khan deceased has been wrongly decided because petitioners fall within category of clause IV 'residuaries' being the male descendants of the 'Remote Grandfather', while respondents Nos.1 and 2 fall within the definition of category V of 'Distant kindred' and thus section 49 of the Muhammadan Law, after satisfaction of the shares of the 'sharers', the residue of the legacy of the deceased is to be inherited by the 'residuaries'; and that 'distant kindred" will be only entitled to inheritance, where there are neither 'sharers' nor 'residuaries' otherwise they are not entitled to inherit the 'Estate' of deceased and so Mutation No.461 dated 12-12-1938 about inheritance of Haider Khan to the extent of devolution of his 'estate' in favour of respondents Nos.1 and 2 being 'distant kindred' was legally incorrect, rather the petitioners being 'residuaries' are entitled to inherit the same property exclusively; that the devolution of inheritance of Mukaram Khan in favour of respondents Nos.1 and 2 exclusively, is also illegal and is hit by sections 3 and 5 of West Pakistan Muslim Personal Law (Shariat Application) Act, 1962 ('Act of 1962') and that the inheritance of Mukaram Khan should have been in favour of the legal heirs, who were alive at the time of death of Mukaram Khan (Last full owner) and thus respondents Nos.1 and 2 were entitled to 2/3 share in the estate of Mukarram Khan, while the rest of 1/3 share would devolve upon Haider Khan, who was alive at the time of death of his brother Mukmaram Khan; that the petitioners were owners of 665 kanal 14 marlas in 'Milkiyat' land as well as 'shamilat' land plus the land inherited from Haider Khan and that partition proceedings, respondents Nos.1 and 2 were wrongly recorded owners of 133 kanals in 'Shamilat' land and 23 kanals in 'Malkyat' land, while the petitioners share was reduced from 665 kanal 14 marla to 504 kanal 14 marla.
4. In rebuttal the learned counsel for respondents Nos.1 and 2 vehemently opposed the contention of the learned counsel for the petitioners and contended that no evidence was produced by the petitioners to prove their stand that the property of Madad Khan was confiscated to the State; that 'Shajara Nasab' produced by the 'patwari halqa' also support the stance of the respondents/defendants Nos.1 and 2; that only the share of Saadat Khan has been confiscated; that presumption of truth is attached to the 'pedigree table' being official record under section 52 of the West Pakistan Land Revenue Act; that oral evidence does not exclude the documentary evidence under Articles 102 and 103 of Qanun-e-Shahadat Order, 1984 ('Order'); that neither any jurisdictional defect has been pointed out, nor any illegality or irregularity committed by the lower Courts and thus revisional power/ scope being very limited, therefore, this revision is, liable to be dismissed with cost.
5. The Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
6. In essence, the learned counsel for the petitioners has argued the claimed the disputed property essentially on three legal and factual premises:- ' Firstly, that the present respondents No.1 and 2, namely; Mst. Sarwara and Mst. Otmul Aisha, could not inherit the property of Mukaram Khan, as 8/15 of his father Madad Khan's 'Milkyiat' land and his entire 'shamilat' land had been purchased by the petitioners in an official auction in the year 1937; ' Secondly, Mst. Sarwara and Otmul Aisha (respondents Nos.1 and 2) could not inherit the legacy of Mukaram Khan, their father and Haider Ali, their uncle, as they had sold more than their share during their life time and that even otherwise, the legacy of Haider Ali, who died issueless, could not devolve upon the respondents Nos.1 and 2 being his 'distant kindred', when the petitioners being 'residuries' were alive and thus the half share transferred to respondents Nos.1 and 2, was illegal and ought to have been totally transferred in favour of the petitioners and ' Thirdly, that the legacy of Mukaram Khan in favour of respondents Nos.1 and 2 exclusively was against the injunction of Islam and Act of 1962 as at the time of Mukaram Khan's death, his brother Haider Khan was alive, thus on the death of Haider Khan, his entire property would devolve upon the petitioners, who being 'residuries' , excluded respondents Nos.1 and 2, who were 'distant kindred'
7. Taking up the First Claim of the petitioners, the two Courts below have concurrently rejected this stance taken by the petitioners, while deciding issues Nos.7 and 10. Both the Courts have been influenced in their decisions by the evidence of the 'Patwari Halqa' , (P.W.1) and ADK, (P.W.2), in particular the Pedigree Table" of the parties (Exh.P.W.1/D-1), which clearly noted under the name of Saadat Khan that his share in the 'shamilat' land due to his abscondence had been auctioned by the State. While, Madad Khan and his son Mukaram Khan along with his two daughters, the present respondents Nos.1 and 1, were duly recorded as owners of their respective landed property.
8. When the learned counsel for the petitioners was confronted with the said finding of the two Courts below, he vehemently argued that the property purchased by the petitioners in public auction was that of Madad Khan and his son Saadat Khan. In this regard, the learned counsel drew the attention of the Court to the application dated 194-1998 for placing on record certain documents, which according to the learned counsel, clearly showed that in fact the auction of the landed property was that of Madad Khan along with his son Saadat Khan. He further argued that this application had not been decided by the Courts below, hence the case be remanded back to the learned appellate Court to decide the same.
9. This Court is not in consonance with this line of submissions of the worthy counsel for the petitioners. The application was only to the extent of placing certain documents on the record, which was accordingly done even prior to the conclusion of the first round of litigation and thereafter no attempt, whatsoever, was made by the present petitioners to pursue the said application. Surely, this conduct on the part of the petitioners would not aid the present request of the learned counsel to remand the case and that too at this belated stage. Even otherwise, it would not be appropriate to prolong the litigation any further. To render justice and ensure that none is prejudiced, this Court would consider the documents mentioned in the said application of the petitioners. On reviewing the documents attached with the said application of the petitioners, it is noted that the same are notices/proclamations issued under the enabling provisions of Criminal Procedure Code of 1898 and the receipts of payments made regarding property of Saadat Khan only The only document, which has reference to the property of Madad Khan, is the note of the worthy Deputy Commissioner in response to the application of Khushal Khan son of Muhammad Shah, who was alleged to have been murdered by Madad Khan and Saadat Khan.
10. So what we have before us are the consistent long standing entries in revenue record produced by the 'Patwari Halqa' and 'ADK', which are in favour of respondents ladies, while on the other hand, we have a single remark of the Deputy Commissioner on a note dating back to 1938 in favour of the present petitioners.
11. There is no doubt that .a person, who claims a fact, has to prove the same himself by producing cogent and reliable evidence and cannot seek refuge behind the weaknesses of the other side.
However, when there are contesting claims of the parties backed by supporting evidence, the adjudicating Court is to weigh the evidence produced by the rival parties and to see on whose side the "preponderance of evidence" rests. It is only when the evidence produced by the parties are evenly balanced and the Court is unable to decide the matter on the available evidence, only then the issue of burden of proof would come into play. In this regard, the august Supreme Court of Pakistan in the case title Mst. Qaiser Khatoon v. Molvi Khaliq (PLD 1971 S.C334) held that:- "In any event, the question of onus of proof has lost its importance now after all the relevant evidence has been adduced and placed on the record (vide Manaka v. Madha Rao) (2). The question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to no definite conclusion- (Vide PLD 1948 PC 171). In such an event the rule is that the party on whom the onus lay must fail. This, however, is not case here, for, the evidence is, by no means, evenly balance."
12. In the present case, the 'preponderance' of 'evidence' is surely in favour of the respondent ladies and against the petitioners. Moreover, the petitioners being the plaintiffs were bound to prove their own claim C through cogent and reliable evidence, as is the mandate of Article 126 of the Order.
This onus to prove their claim has not been fulfilled positively by the present petitioners. Hence, the two Courts below were correct in disallowing the First Claim of the petitioners.
13. Before this Court passes any legal finding on merits of the Second Claim of the petitioners, whereby they have asserted that Haider Khan during his life time sold more than his due share and thus had no property left to be inherited by respondents Nos.1 and 2 and further that the half share of legacy of Haider Ali, which had devolved upon Mst. Sarwara and Otmul Aisha (Respondents Nos.1 and 2), as recorded in the Mutation No. 461, it will be pertinent to note that there is no specific issue framed by the trial Court thereon. However, the petitioners did take a specific and express stance regarding this claim in para. No 7 of the plaint, which had been denied by the respondents Nos.1 and 2 in their written statement. When faced with this situation, this revisional Court has two options; either to proceed and decide the said issue itself or to remand the same to the Courts below to decide it after framing a specific issue and seek evidence of the parties thereon. Opting .For the former option, as presently the parties are in their second round of litigation and also to avoid further agony of the parties in prolonging the litigation, this Court on canvassing the record notes that not only are the assertion of the petitioners in their pleadings vague and lacking particulars on essential materials but in fact they have failed to produce any credible evidence to substantiate this crucial claim; there is no particulars as to how much property was lawfully owned by Haider Khan; how much property he has sold exceeding his lawful share; even no evidence in support of these general assertions were produced by the petitioners; and more importantly, even the crucial mutation No.461 has not been placed on record, so as to dilate upon the challenge made by the petitioners to the said transaction. The 'Patwari Halqa' (P.W.1) and 'ADK' (P.W.2) did not produce the said crucial document and in fact the latter explained that despite his efforts, he was unable to find the said mutation, as fire had destroyed the said record.
14. Now, to the merits of the second claim of the petitioners under the 'Shariah '; it is admitted fact that Haider Khan died issueless and had no 'sharer', while petitioners were his 'residuary' being the male descendant of the 'Remote Grand Father', while respondents Nos.1 and 2 clearly come within the purview of 'Distant kindred' of Haider Khan, being the female descendant of the 'Remote Grand Father'. When we place the claim of the petitioners in juxtaposition with that of respondents Nos.1 and 2, the results are obvious and as there are no 'sharer', the legacy of Haider Khan was to devolve upon the 'residuary' as provided under section 52 of Muhammadan Law, which provides that:-- "52. Residuaries.---If there are no sharers, or if there are sharers, but there is a residue left after satisfying their claims, the whole inheritance or the residue, as the case may be, devolves upon Residuaries in the order set forth in the annexed table." (emphasis provided).
15. However, the aforementioned principle would not help the case of the petitioners, as the particulars of the actual due share of Haider Khan has not been correctly and legally proved and more particularly the disputed mutation No.461 having not been produced in evidence, this Court cannot despite the legal proposition stated herein above, pass any E finding on this Second Claim made by the petitioners. Vague pleadings coupled with no supporting documentary evidence, has proved fatal to this claim of the petitioners.
16.. Moving on to the third claim made by the petitioners, where they seek share in the property of Mukarram Khan, claiming it through Haider Khan, who was stated to be alive at the time of Mukarram Khan's death. This claim, too, is not asserted by the petitioners with particulars in the plaint and in addition thereto the evidence in support thereof is also wanting. Having said that, there is no cavil to the legal proposition that on the death of a person his legacy is open and the share of each legal heir is to lawfully devolve in accordance with the principles laid down in 'sharia'.
The non-recording of the said transfer in the revenue record would not defeat the said rights, so gained under the law. In fact, the apex Court has by now settled this issue in Ghulam Ali's case (PLD 1990 SC 1) and followed consistently by the superior Courts of our jurisdiction.
17. What is strikingly interesting in the present case is that the petitioners are seeking legacy in the 'estate' of Mukaram Khan, father of respondents Nos.1 and 2, through Haider Khan. In essence, this claim of the petitioners is that at the time of Mukaram Khan's death 1/3rd of his property ought to have devolved upon Haider Khan and thus at the time of Haider Khan's death, who as mentioned above died issueless, his legacy was to devolve upon the petitioners exclusively, being his residuaries. This Court does not agree with this line of argument advanced by the learned counsel for the petitioners:-- ' Firstly, allowing the petitioners any relief in this regard would be to go beyond the pleadings of the parties; ' Secondly, the supporting evidence to substantiate this claim is also not forthcoming and; ' Finally, the petitioners lack 'locus standi' to seek the legacy of Mukaram Khan, as they claim the same through Haider Khan, G who during his life time never agitated the said claim. Faced with similar circumstances, the apex Court in Abdul Haq's case (2002 SCM R 1330), has laid down in terms that:- "Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his life time. The petitioners claimed the property through Atta Muhammad as his heirs, who filed the suit as late in 1979 about 9 years after the sanction of mutation, which had already been given effect in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently for. Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his life time."
' The aforementioned principle has been consistently followed in other decisions of the apex Court including the case of Ghulam Haider's' case (2008 SCMR1425).
18. This court is adjudicating the present petition in its revisional jurisdiction, the scope thereof as provided under section 115 of the Civil Procedure Code, 1908 has been dilated upon by the august Supreme Court in Muhammad Idrees v. Muhammad Parvez (2010 SCM R 5) and held that:-- "The High Court in exercise of its revisional jurisdiction under section 115, C. P.C. Unless such findings suffer from controversial defects, illegality or material irregularity as law laid down by the Privy Council in Hindu Religious Endowments Board, Madras' case PLD 1949 PC 26. With regard to section 115, C.P.C. It is observed by the Privy Council as under:--
(i) This section empowers the High Court to satisfy itself upon three matters:--
(a) That the order of the subordinate Court is within its jurisdiction.
(b) That the case is one in which the Court ought to exercise jurisdiction.
(c) That in exercising jurisdiction, the Court has not acted illegally, that is breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law. "
19. Keeping in view the above guiding principle regarding exercise of revisional jurisdiction, this Court considers that the Courts below had the jurisdiction to adjudicate upon the matter and that while exercising the said jurisdiction they applied their conscious mind to the facts of the case and correctly applied and interpreted the applicable law. On facts, both the Courts have rendered their concurrent findings and this Court does not find the same as arbitrary, capricious or outrightly absurd warranting a positive exercise of revisional jurisdiction by this Court.
20. Accordingly, for the reasons stated hereinabove, this revisionl/ 'petition being without substance is dismissed.