1. MUHAMMAD YAQUB ALI, J.-Three issues were raised before the High Court in the Second Appeal preferred by the respondents under section 100, C. P. C. Viz. :- (i)whether Pir Muhammad was not the son of Mst. Nizam Khatoon ;
(ii) whether Mst. Zohra was daughter of Mst. Azim Khatoon and the plaintiffs-petitioners herein are her heirs ; and (iii)whether the suit is barred by res judicata.
2. A Division Bench in the High Court answered issues (i) and (ii) in the affirmative and in concurrence with the trial Court held that Pir Muhammad father of the respondents was the son of Mst. Nizam Khatoon and that the decision in the earlier suit filed by Pir Muhammad in 1917 against Ali Muhammad and others who claimed through a will by Mst. Azim Khatoon operat--ed as res judicata. Similarly, issue No. (ii) was decided against the petitioners holding that Mst. Zohra, mother of the petitioners, was not the daughter of Mst. Azim Khatoon. The decree passed by the Additional District Judge, Muzaffargarh, on appeal was, accordingly set aside and the suit instituted by the petitioners laying claim to one-half share of 769 kanals and 16 marlas of land situated in the estates of Kharian and Kotla Afghanan, Tehsil Alipur, District Muzaffargarh, as heirs of Mst. Azim Khatoon was dismissed.
3. Ch. Abdur Rehman in canvassing the petition for leave to appeal laid stress op the provisions of section 100, C. P. C. And maintained that the High Court did not have the jurisdiction to interfere with the findings of fact recorded by the 1st Court of Appeal; that Mst. Zohra was the daughter of Mst.
4. Azim Khatoon ; and that Pir Muhammad was not the son of Mst. Nizam Khatoon. He also disputed the finding by the High Court that Sohanra, petitioner, was a party to the suit of 1917.
5. On examining at considerable length the record, we find no substance in the petition for leave to appeal. The findings by the Additional District Judge were opposed to documentary evidence of undisputed authenticity and rested on mere surmises. In this view, the High Court had ample jurisdiction to interfere with the findings of fact in a second appeal.
6. The documentary evidence set out in this order of the High court made out almost conclusively that Pir Muhammad was the son of Mst. Nizam Khatoon. He succeeded to the estate of Mst. Nizam Khatoon on her death on 14th December 1896. Her sister Mst. Azim Khatoon died in 1908 whereupon her J share was mutated in the name of her daughter Gul Khatoon on 7th December 1909. The latter died issueless on 30th October 1914 whereupon Ali Muhammad and others claimed to have succeeded to her share under the will of Mst. Azim Khatoon. Mutation was attested in their names whereupon Pir Muhammad filed a suit claiming to have succeeded to Mst. Gul Khatoon as the son of her mother's sister. The suit was decreed in 1917 and the appeal preferred by Ali Muhammad etc., was dismissed by the High Court in 1921. The pedigree table propounded in this litigation proved that Pir Muhammad was the son of Nizam Khatoon.
7. Similarly, in the will executed by Mst. Azim Khatoon in favour of Ali Muhammad and others she made a mention that she was at first married to Ghulam Muhammad who died and that she bore no child by him. She then married Muhammad Bux by whom she had a daughter Gul Khatoon. Mst.
8. Zohra vas the daughter of Ghulam Muhammad and she succeeded to his estate along with Mst.
9. Azim Khatoon, but it did not prove that she was the daughter of Mst. Azim Khatoon. This documentary evidence coupled with the circumstance that Mst. Zohra did not in her lifetime claim to have eucceeded to the share of Mst. Azim Khatoon and that the petitioners laid claim to the suit land as her grandsons for the first time in 1951 i. e., 43 years after the death of Mst. Azim Khatoon left no doubt about the hollowness of their claim. There is also no proof of the averment that Sohara son of Pir Bux and a party to the 1917 suit was some one other than the appellant No. 2 before the High Court.
10. The High Court has thus correctly decided the issues arising in the second appeal. The petition for leave to appeal is dismissed.