' CH. MUHAMMAD MASOOD JAHANGIR, Muhammad, the present petitioner, filed a suit for declaration before the learned Trial Court with the assertions that disputed property fully mentioned in the body of the plaint was owned by Mukhtar Ahmad s/o Raj Muhammad, his real brother. The petitioner claimed himself to be the sole legal heir of Mukhtar Ahmad deceased and challenged the vires of inheritance mutation No. 500 dated 19.9.1986 Exh.P1 with the assertion that defendants No. 1 & 2 were the daughters of Sher Muhammad, the other brother of plaintiff, but in the disputed mutation they were wrongly reflected as daughters of Mukhtar Ahmad deceased whereas the plaintiff was real brother of said deceased, who was also reflected as son of deceased Mukhtar Ahmad. It is also pleaded in the plaint by the petitioner/plaintiff that the other two real brothers, namely, Sher Muhammad and Noor Muhammad died prior to the death of Mukhtar Ahmad deceased, who had no male legal heir and defendants/respondents No. 1 & 2 being nieces of Mukhtar Ahmad were not entitled to inherit any share in the disputed property. The said suit was contested by the respondents/defendants No. 1 & 2 with the sole assertion that Sher Muhammad died after the death of Mukhtar Ahmad and they being daughters of Sher Muhammad were entitled to inherit 1/2 share from the legacy of deceased Mukhtar Ahmad. However, it is admitted position from the written statement that respondents/defendants No. 1 & 2 are the daughters of Sher Muhammad whereas the petitioner Wali Muhammad was the real brother of Mukhtar Ahmad deceased and disputed inheritance mutation No. 500 Exh.P1 was liable to be set aside to this extent.
2. The learned Trial Court captured the disputed areas of acts by striking the following issues:---
(1) What Mukhtar Ahmed propitious died in 1986? OPP
(2) Whether the plaintiff is brother of the deceased propositus and respondents No. 1 & 2 are nieces of the propositous? OPP
(3) Whether the plaintiff is in continuous possession of the land in dispute? OPP
(4) Whether the plaintiff is only the sole legal heir of the deceased excluding the respondents No. 1 and 2? OPP
(5) Whether the mutation No. 500 is based on fraud and collusion of the Revenue officials, therefore, is illegal and void ab initio and ineffective against the rights of the plaintiff? OPP
(6) Whether the present suit has been filed to tease and harass the defendant? OPD
(7) If above-said issue is answered in affirmative then' whether defendants are entitled to special costs, if so, to what extent? OPD
(8) Whether Mukhtar Ahmad propitious died in the year 1955 and Sher Muhammad father of the respondents No. 1 & 2 died 17/18 years thereafter? OPD
(9) Whether the plaintiff has no cause of action and locus standi to file the suit? OPD
(10) Whether the suit is not maintainable in its present form? OPD
(11) Whether the suit is barred by law of limitation? OPD
(12) Whether the defendants are owners possession of the suit property? OPD
(13) Relief.
' Thereafter the learned Thai Court collected stock of evidence of the parties arid after appreciating the same the learned Trial Court partially decreed the suit filed by the petitioner/plaintiff vide judgment dated 18.3.2004 while observing as under:- "As a sequel of the above discussed facts and my issue wise findings the suit of the plaintiff stands decreed in the manner that Seema Bibi and Nawab Bibi are daughters of Sher Muhammad while Wali Muhammad plaintiff is brother of Mukhtar Ahmad deceased. It is also adjudicated that at the time of death of Mukhtar Ahmad his two brothers Sher Muhammad father of defendant Seema Bibi and Nawab Bibi and Wali Muhammad plaintiff was alive. Hence Wali Muhammad and Sher Muhammad being brothers of deceased Mukhtar Ahmad are entitled to inherit as per their respective shares."
3. Being aggrieved the petitioner/plaintiff filed an appeal before the learned lower Appellate Court, which was dismissed by the learned Additional District Judge vide judgment and decree dated 21.10.2004. Being dissatisfied the petitioner has assailed the judgments and decrees passed by the Courts below through the instant civil revision.
4. Arguments heard and record perused.
5. The learned counsel for the petitioner at the very outset of his argument has drawn the attention of this Court towards the inheritance mutation of Sher Muhammad Exh.P2, a perusal of which reveals that Sher Muhammad predecessor-in-interest of defendants No. 1 & 2 died in the year 1974 and his inheritance mutation was attested on 16.5.1976 in favour of his widow Zohra Begum and his daughters defendants No. 1 & 2 alongwith his brothers Muhammad, Mukhtar Ahmad and Noor Muhammad. The perusal of said document further reveals that at the time of death of Sher Muhammad, the predecessor-in-interest of respondents/defendants No. 1 & 2 he had three brothers, namely, Noor Muhammad, Wali Muhammad and Mukhtar Ahmad, who were alive and they were given due share vide said inheritance mutation. The defendants No. 1 & 2 admittedly had never assailed the said inheritance mutation till today. Another inheritance mutation No. 337 Exh.P6 of Noor Muhammad s/o Raj Muhammad is also available on file, a perusal whereof further reveals that other brother of petitioner/plaintiff as well as Mukhtar Ahmad deceased was Noor Muhammad, who alongwith Wall Muhammad and Mukhtar Ahmad had received share from the legacy of Sher Muhammad, predecessor-in-interest of respondents/ defendants No. 1 & 2 vide inheritance mutation Exh.P2, and he died in the year 1982 whereafter his legacy was devolved upon Wali Muhammad as well as Mukhtar Ahmad deceased vide order dated 16.12.1983. It is also borne out from the record that at the time of death of Noor Muhammad, Sher Muhammad father of respondents/defendants No. 1 & 2 was not alive and that is why no share was distributed to him.
Both the said mutations have been ignored by the Courts below while declaring that Sher Muhammad was alive at the time of death of Mukhtar Ahmad, who took his last breathe in the year 1986. The above referred two inheritance mutations Exh.P2 and Exh.P6 regarding the legacy of real brothers of deceased Mukhtar Ahmad have fully proved the factum that Sher Muhammad, the predecessor-in-interest of respondents/defendants No. 1 & 2, was not alive when Mukhtar Ahmad died in the year 1986 rather Mukhtar Ahmad alongwith Wali Muhammad, the petitioner/plaintiff had received share in the legacy of above referred deceased brothers. The inheritance mutations Exh.P2 & Exh.P6 were duly effected in the register haqdaran zamin and this fact has also been proved by the petitioner/plaintiff by producing copy of register haqdaran zamin Exh.P3. Even the perusal of disputed mutation Exh.P1 reveals that the Revenue Officer while drawing pedigree table at the time of attestation of disputed inheritance mutation of Mukhtar Ahmad deceased has shown Sher Muhammad father of defendants No. 1 & 2 as well as Noor Ahmad, other brother of Mukhtar as predeceased which entries have never been challenged by the defendants No. 1 & 2 and by virtue of their own conduct this fact has been admitted by the defendants No. 1 & 2.
6. The Courts below wrongly relied upon copy of application for succession certificate Exh.D1 alleged to have been filed by plaintiff alongwith defendants No. 1 & 2 and others before the Civil Court to infer that Mukhtar Ahmad (deceased) was not alive at that time as he was not impleaded as a party therein. On the other hand the plaintiff while appearing as PW1 during the cross- examination categorically denied the filing of said petition whereas defendants No, 1 & 2 failed to produce copies of the order of the Civil Court through which the said petition was decided as well statement of the plaintiff, if recorded during the proceedings thereof. Even, the supporting witness Wali Din DW2 produced by defendants No. 1 & 2 deposed in his examination-in-chief as under:- ' The above-referred testimony of DW2 has also been ignored by the Courts below. There is yet another of the case that none of the defendants herself appeared before the Trial Court as their own witness to corroborate their stance. It is a settled law that it is the bounded duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf and to submit to cross-examination, but his non-appearance as a witness would be strongest possible circumstance going to discredit the truth of his case. By non-appearance, therefore the defendants/respondents failed to discharge the onus or shift the same towards the plaintiff that he alongwith them had filed above referred petition for succession certificate and that Mukhtar Ahmad died prior to their father Sher Muhammad. It is strange to note that both the Courts below without appreciating the above referred documents Exh.P2, P6 and disputed mutation Exh.P1 have passed the impugned judgments and decrees on illegal premises of law, which being tainted with misreading and non-reading of the evidence available on file have become unlawful, unjustified and without jurisdiction and also liable to be interfered with by this Court in the exercise of jurisdiction vested u/s. 115, CPC.
7. The contention of the learned counsel for the respondents that the question of fact is not liable to be reopened in Revision Petition as a concurrent findings of fact reached by the Courts below on the basis of evidence led in the suit are sacrosanct for the purposes of Revision Petition before this Court on the ground that there is no jurisdictional defect of the Courts pointed out as having been committed in reaching these findings. No doubt. Normally this Court does not interfere in the concurrent findings of the fact recorded by two Courts below, but when there is gross misreading and non-reading of evidence and patent violation of the law is floating on the surface of such concurrent findings, this Court cannot shut its eyes and is always under obligation to rectify the error by interference in such-like illegal findings. Reliance can be placed upon the judgments reported as MUSHTARI KHAN v. JEHANGIR KHAN (2006 SCM R 1238) and GHULAM MUHAMMAD AND 3 OTHERS v. GHULAM ALl (2004 SCM R 1001).
8. Sequel of the above discussion is that the instant civil revision is allowed, impugned judgments and decrees passed by the Courts below are hereby set aside and suit filed by the petitioner/plaintiff is decreed as prayed for. Civil revision .