MUHAMMAD ALAM, J.---Order dated 08/04/2016 of the learned District Judge Ghizer, passed in C.F.A. No,37/2015-47/2015, whereby, the said appeal was allowed by the learned first appellate court by setting aside the decree/judgment dated 14-03-2015 passed in Civil Suit No,51/2011, of Civil Judge Gupis/Yasin, has been challenged through revision petition.
2. Petitioners/plaintiffs filed a suit (Civil Suit No,51/2011) seeking possession of their shari share in the lands of their father, who owned the suit land. Respondents/defendants contested the suit and filed written statements. Respondents/defendants have very clearly set out their plea of defense in para No,2 of parawise written statement. Respondents/ defendants very clearly averred that they are in possession of part of suit land on the basis of a will dated 25-07-1994 (Exh.DW/1). Learned trial court framed issues and passed the following judgment/decree:- "In view of above discussion and my findings on issues of parties the suit of plaintiffs is decreed in favour of plaintiffs against defendants Nos,1 and 9 up to extent of 4/6" share of inheritance."
On appeal (C.F.As. Nos, 37/2015-47/2015), the learned District. Judge Ghizer passed the following order:-
11. Point No,2.
(i) It is admitted fact that plaintiffs are real female issues/daughters of late Ibrahim. Hence, they are fully entitled for the legacy of late Ibrahim after excluding the will 1/3rd property.
12. Suit is partially decreed and appeal is partially accepted."
3. I have gone through the material available on file and have heard learned counsel for parties. In the case in hand, it is not disputed that petitioners are daughters of Mr. Ibrahim. It is also not disputed that parties amended their pleadings and in the light of the same, parties are issues of Mr. Ibrahim except Mr. Mohabbat Ali, respondent No,2. A very important aspect of the case is that respondents Nos,1 and 2 are the only contesting respondents, therefore, hereunder respondents means respondents Nos,1 and 2. In the case in hand, Civil Judge has decreed the suit to the extent of 4/6th share while District Judge has varied the said decree and passed decree to the extent of 1/3rd share. Learned District Judge has accepted the will to the extent of 1/3rd but did not agree to the version of respondents to the extent of purchase of 12 kanals of suit land. The bone of contention between parties is that whether Mr. Ibrahim alienated suit property to the respondents through the will (Exh.DW/1) dated 25-07-94? And whether 12 kanals of suit land is owned by respondents as they have purchased the same? In my opinion, the above pleas of respondents shifted the burden of proof to them. So, I A am just to see that how and to what extent respondents have established that they are owners of suit land on the basis of will and they have purchased part of suit land.
4. A very important aspect of the case is that through his judgment dated 14-03-2015, learned trial court did not accept the plea of respondents that they have purchased 12 kanals of suit land and respondents did not file any appeal against said findings of the trial court, therefore, the suit land is ownership of Mr. Ibrahim, father of the parties. In this connection, learned trial court framed issue No,17 and gave his findings against the respondents. In my opinion, findings of the learned trial court an issue No,17 attained finality.
5 Now remains the only question of will (Exh.DW/1). Respondents have produced two DWs in proof of this document. I have found material contradictions in the statements of said two DWs. I have found said material contradictions in the statements of the two DWs as to scribe and marginal witnesses to Exh.DW/1. From joint perusal of statements of DW-1 and 2 and respondent No,2, it is evident that respondents and their DWs are giving different names of father of Mr. Ibrahim. I, therefore, do not accept the document Exh.DW/1 as a valid will.
6. Petition accepted. Orders of the two courts below are varied and the suit of the petitioners/plaintiffs is decreed declaring them entitled to their shari share in all the suit land. As suit land is property of father of petitioners and few of respondents, therefore, the same is subject to partition between all the legal heirs of deceased in accordance with the Fiqqah-e-Jaferia, which parties belong to petition allowed accordingly. Respondents to bear costs. This file be consigned to record.