' MALIK MANZOOR HUSSAIN, J.---This revision petition is directed against judgment and decree dated 11-12-2012, passed by learned Addl. District Judge/Izafi Zilla Qazi, Mastuj at Booni whereby the appeal filed by petitioner was dismissed and consequently the judgment and decree dated 16-10- 2012, passed by learned Civil Judge/Illaqa Qazi, Mastuj at Booni, was maintained.
2. Briefly, the facts of the case are that the petitioner filed a suit for declaration, possession and partition in respect of legacy of Shakoor Rafi the father of petitioner. The suit was resisted by the respondents and after recording pro and contra evidence the learned Trial Court dismissed the suit. The appeal filed by the petitioner was also dismissed in limine, by the learned Izafi Zilla Qazi through impugned judgment, hence the instant revision petition.
3. Learned counsel for petitioner contended that the suit of petitioner was with regard to partition of legacy of her father and the relationship of petitioner with the last owner Shakoor Rafi was not denied and the learned Courts below failed to properly appreciate this fact. He further contended that the claim of respondents was based on deed dated 9-71996 and being the same as unregistered document, the same has got no evidential value. Reliance of both the courts below upon such documents was not only an illegality but gross irregularity. Lastly he stressed the point that a regular first appeal cannot be dismissed at limine stage without summoning record from the Trial Court. Thus, the learned Appellate Court violated the provision of Order XLI, Rule 11, C.P.C.
4. Conversely, learned counsel appearing on behalf of respondents contended that both the Courts below after appreciating the available material, properly passed the impugned judgment and contended that document dated 9-7-96 was a partition deed executed by Shakoor Rafi predecessor in interest of the parties, whereby he during his life time transferred the same to his sons Allah Nawaz and Gul. Murad respondents Nos.1 and 2.
' Arguments heard, record perused.
5. Perusal of record reveals that the predecessor in interest of the parties namely Shakoor Rafi during his life time executed a deed dated 9-7-96 (Exh.DW.1/4). According to this deed the immovable property was transferred to Allah Nawaz and Gul Murad, sons of Shakoor Rafi, whereas the cash amount was distributed amongst the daughters, including the petitioner. This fact was proved on record by respondents by producing marginal witnesses of the deed along with other family members namely Allah Nawaz, Kashmiran Khan, Qazi Jamalud Din and Baig Murad. Nothing was produced by petitioner in rebuttal. Moreover, the Special Attorney of petitioner admitted the fact that the predecessor in interest of the parties had partitioned the suit property between his sons and had given cash money in lieu of immoveable property to his daughters. The petitioner during life time of her predecessor neither objected to transfer of land in favour of her brothers and the cash amount was received by her in lieu of immoveable property She is estopped from her own conduct to agitate the matter through filing the instant suit in the year 2011.#
6. Both the Courts below have properly appreciated the material available on file in their true prospects. There is no mis-reading or non-reading of the material evidence noticed by this court and questions of fact are properly dealt with by the Courts below, who are Courts of the facts.
7. It is by now well settled that concurrent findings of facts cannot be disturbed by this Court in its revisional jurisdiction unless the judgment passed by the Courts below are manifestly, perverse or without jurisdiction.
8. So far as the objection of learned counsel for petitioner that being regular first appeal, the same could not be dismissed in limine without summoning record of the Trial Court, have got no force.
Order XLI, Rule 11, C.P.C. Empowers the Appellate Court to dismiss the appeal without sending notice to the lower Court for transmission of record and without notice to the respondents when appeal could be decided on the basis of material available before the Appellate Court and in such like situation, summoning of record was not necessary. Reliance can be made upon the apex Court judgments reported in cases of "Ashiq Ali and others v. Mst. Zamir Fatima and others" PLD 2004 SC 10, "Hameed Ahmad v. Gulab Khan" 2006 SCM R 895, "Muhammad Ibrahim v. Mst.Irshad Begum and others" PLD 2002 SC 720 and "Ali Muhammad v. Commissioner Afghan Refugees, N.-W.F.P. And others" 1995 SCM R 1675.
' In view of foregoing discussion, the conclusion arrived at by the learned Trial Court and concurred by the learned Appellate Court being well based, hardly calls for any interference, hence this petition being meritless is dismissed.