ANW AARUL HAQ PANNUN, J. Through this Civil Revision the petitioner has challenged the vires of judgment and decree dated 22.12.201 1, passed by the learned Addl. District Judge, Ahmedpur East, whereby appeal filed against the dismissal of his suit vide judgment and decree dated 16.07.201 1 passed by the learned Civil Judge, Ahmedpur East, has been dismissed.
2. Precisely , the petitioner/plaintif f (hereinafter referred as the petitioner) instituted a suit against the respondent/defendant (hereinafter referred as 'the respondent' seeking declaratio n with the averments that after the death of predecessor-in-interest of the parties namely Fazil son of Allah Wasaya, who was owner in possession of the land measuring 44-Kanals 18-Marlas, fully described in the head note of the plaint, Mutation of inheritance No.9 dated 18.06.1997 in respect of his estate was sanctioned in favour of the parties which was previously assailed by the appellant in a suit titled "Hussain Bakhsh v. Mst. Razia Bibi" which was dismissed vide judgment and decree dated 14.06.2007, however , with a direction to the Revenue Officer to attest a fresh inheritance mutation according to law. The appellant challenged the aforesaid judgment and decree by filing an appeal but in the meanwhile, the respondent, in collusion of the revenue officer, got sanctioned another Mutation No.1168 dated 19.06.2008 and has become owner of more shares in the property than her entitlement under Sharia. Through the instant suit, the appellant has challenged the Mutation No.1168, by alleging that the respondent has been given the share more than her entitlement as per Shariat, hence the Mutation No.1168 is illegal, void and ineffective upon his rights.
3. The respondent put her appearance and contested the suit by filing written statement wherein she besides raising preliminary objections has also controverted the claim of the petitioner on merits.
4. From the divergent contentions of the parties, the learned trial court framed the following issues: 1) Whether impugned inheritance mutation No.1168 dated 19.06.2008 is against law and facts, illegal, void and ineffective against rights of the plaintif f and liable to be rectified to the extent of share of plaintif f through declaratory decree? OPP 2) Whether the suit is not maintainable in view of preliminary objection No.1 of the written statement? OPD 3) Whether the plaintif f is estopped to file this suit keeping in view of principle of res judicata? OPD 4) Relief.
5. In order to establish his case, the petitioner himself appeared in the witness box as PW-1 and produced copy of mutation No.1168 Ex.P-1, copy of Mutation No.1167 Ex.P-2, copy of Register Haqdaran Zameen for the year 2004- 05 Ex.P-3, certified copy of judgment in case Hussain Bakhsh v. Mst. Razia Bibi dated 14.06.2007 Ex.P-4 and copy of decree-sheet, in the said suit Ex.P-5. On the other hand, the respondent herself appeared in the witness box as DW-1. After having recorded the evidence of the parties and hearing the learned counsel for the parties, the learned trial court opted to dismiss the suit of the petitioner vide impugned judgment and decree dated 16.07.201 1.
6. On the conclusion of trial, the learned Civil Judge proceeded to dismiss the suit of the petitioner/plaintif f, while deciding Issues Nos. 1 to 3 in favour of the respondent/defendant vide its judgment and decree dated 16.07.201 1.
Feeling aggrieved of the same, the petitioner preferred an appeal before the learned District Judge, Ahmadpur East, which has also met the same fate and stands dismissed vide judgment and decree dated 22.12.201 1, hence this civil revision.
7. At the very outset, learned counsel for the petitioner while relying upon the judgment reported as Mst. Rashidan Bibi v. Bashir Ahmad and others (PLD 1983 Lahore 549) and Mukhtar Ahmad v. Mst. Rasheeda and another (2003 SCMR 1664 ), submits that in view of an admitted position that Mst. Mithan had died leaving behind the respondent as her sole legal heir, therefore, in absence of any male heir of the said lady, the petitioner is entitled to 1/2 share out of her inheritance but Mutation No.1168 dated 19.06.2008 has wrongly been sanctioned depriving the petitioner from his lawful share in the property; that the impugned mutation is liable to be cancelled and as such is ineffective upon his rights.
8. On the other-hand, learned counsel for respondent has argued that judgment and decree dated 14.06.2007 passed in the suit earlier filed by the petitioner challenging Mutation of inheritance No.9, has not been challenged by him before any forum and his appea l was also dismissed, therefore, suit case of the petitioner is hit by res judicata under section 11 of Civil Procedure Code (Act. No.5 of 1908). Further adds that concurrent findings of facts cannot be upset exercising revisions' powers under section 1 15, Cr .P.C.
9. While exercising his right of rebuttal, learned counsel representing the petitioner submits that the point raised by learned counsel for the respondent regard ing res-judicata has already been decide d against the respondent by the learned lower appellate court and due to non-challenging of the same, it has attained finality , hence cannot be agitated.
10. Arguments heard. Record perused.
11. First of all, dealing with the object ion raised by learned counsel for the respondent regarding the non- maintainability of suit filed by the petitioner being hit by res-judicata as contained in section 11 of C.P.C, it is straightaway observed that the said objec tion being not impressive is repelled for the reasons that in the earlier suit filed by the petitioner against the respondent, he had challenged Mutation No.9 dated 18.09.1997 which although was dismissed vide judgment and decree dated 14.06.2007 but direction was also issued by the learned trial court to the revenue authorities for attesting a fresh mutation in accordance with law. In the meantime, during the pendency of appeal filed by the petitioner against the aforesaid judgment and decree, the revenue authorities proceeded to sanction Mutation No.1168 dated 19.06.2008 which is the subject matter of the instant civil revision. It is trite law that every fresh entry in the revenue record gives rise to a fresh cause of action to the aggrieved party .
Hence the impugned mutation being a subsequent entry gives rise to a fresh cause of action to the petitioner for filing the suit. The learned trial court decided Issue No.3 against the petitioner but the learned appellate court has reversed the findings of the learned trial court on the said issue and the said findings of the learned appellate court had not been challenged by the respondent. It is now well settled that an issue decided against a party , if not challenged, shall attained the finality . Reliance in this regard is placed on the cases reported as Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah (1996 SCMR 1862 ) and Kama' Nair: v. Fateh Khan (PLD 1983 SC 53 ).
The learned lower appellate court, in Para-8 of the impugned judgment, has held as under:- "As regard to Issues Nos.2 and 3, the findings of the learned trial court are not tenable. In the previous suit, the appellant has challenged the validity of mutation No.9 sanctioned in favour of the respondent and that suit was although dismissed but the mutation No.9 was also set aside and the revenue officer was directed to sanction a fresh mutation according to law. In the suit in hand, the appellant has challenged the mutation No.1168 sanctioned by the revenue officer which according to him is illegal and void and he sought a declaration th4 the said mutation is not according to the share of the parties and the respondent has been given more land than her due share. So, the instant suit is maintainable and not hit by the principle of res-judicata."
Thus, the objection raised by learned counsel for the respondent questioning the maintainability of the suit filed by the petitioner on the ground of being hit by the principle of res-judicata, has no force.
12. The nutshell of the grievance agitated by the petitioner , through the instant civil revision, is that the respondent is entitled, being the only daughter/legal heirs of Mst. Mithan Mai, the pre-deceased daughter of Fazil, the propositus, out of his property , her Shari share, which she was entitled out of the property of Mst. Mithan, her mother . The petitioner's claim that out of the property measuring 49-Kanals 18-Marlas, mutated through Mutation No.1168 dated 19.06.2008, the respondent is entitled to 1/2 share only and the remaining 1/2 share should have been mutated in the name of the petitione r as per mandate of section 4 of Muslim Family Laws Ordinance, 1961. It has been, thus, asserted that through the impugned mutation, the petitioner has been deprived of his Shari share and respondent has got more share than her entailment hence Mutation No.1168 dated 19.06.2008 is liable to be cancelled being inef fective upon his rights.
13. The provision of Section 4 of Muslim Family Laws Ordinance, 1961 is reproduced for better appreciation:- "Succession.- In the event of the death of any son of daughter of the propositus before the opening of succession, the children of such son or daughter , if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter , as the case may be, would have received if alive."
14. The said provision came under consideration of the Hon'ble Supreme Court of Pakistan in the case reported as Mst. Bhaggav Bibi and others v. Mst. Razia Bibi and others (2005 SCMR 1595 ) wherein, it has been held as under:- "3. Section 4 of Muslim Family Laws Ordinance, 1961 provides that 'in the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter , if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter , as the case may be, would have received, if alive'. This section does not override the law of Shariah and consequently , the parties will not get more than their share in the property in accordance with law of Shariah and the widows' and daughters of Maula Dad would get to which they would have been entitled on the death of Maula Dad, after opening of succession of Mughla. The purpose of enacting section 4 (ibid) was to cater the need of grandchildren to remove their sufferings but this provision cannot be interpreted in a manner effecting the shares of other descendants in the property in accordance with law of Shariah."
Moreover , in another case reported as Mukhtar Ahmad v. Mst. Rasheeda Bibi and anther (2003 SCMR 1664 ) the apex Court has held as under:- "6.----One thing deserves to be taken notice of. It is the Shari share of Mst. Rasheeda Bibi. No doubt, if she happened to inherit through her father Bir Din, her father would be entitled to 2/5th share in the property but she being the only daughter will inherit 1/2 share from the property of Bir Din while the remaining would go to other collateral's i.e. Mukhtar Ahmad and Mst. Sardar Bibi. She in fact is entitled to 1/5th share and not 2/5th share."
15. Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, provides that any decision of the Hon'ble Supreme Court of Pakistan deciding question of law, is binding on all other courts of the country , For convenience, the same is reproduced as under:- "Decisions of Supreme Court binding on other Courts . Any decision of the Supreme Court shall, to the extent that it decided a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan."
The aforesaid Article of the Constitution came under discussion before the Hon'ble Supreme Court of Pakistan in the case reported as Iftikharul Haq v. District Canal Officer and others (2005 CLC 1740 ) wherein it has been held as under:- "7. The judgments and decrees or both the Courts below are not only violative of the provisions of law as contained in Order VII, Rule II-B, C.P.C. tin also in clear disregard to the law declared by the Honourable Supreme Court of Pakistan in Jewan and 7 others v. Federation of Pakistan through Secretary . Revenue, Islamabad and 2 others 1994 SCMR 826, referred to above, which to me amounts to contempt of Court, because it is the mandate of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 that decisions of the Honourable Supreme Court of Pakistan are binding on all the Courts in Pakistan, so far as such decisions decide a question of law or enunciate a principle of law. The judgment of the Honourable Supreme Court cited above since constitutes a law in terms of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, hence binding on all the Courts in terms of said Article."
16. So far as the contention raised by learned counsel for the respondent that concurrent findings on facts have been recorded and re-appraisal of evidence cannot be made while exercising powers under section 115 of the Code of Civil Procedure, 1908, in this regard, it is observed that the concurrent findings when found result of misreading and non-reading of evidence or result of material irregularity and illegality , the, same can be interfered with in exercise of supervisory revisional jurisdiction. In this regard reliance is placed on the cases reported as Habib Khan and others Bakhtmina and others (2004 SCMR 1668 ), Ghulam Muhammad and 3 others v.
Ghulam Ali (2004 SCMR 1001 ) and Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630 ), wherein it has invariably been held:-- "17. Indeed, the concurrent findings of three Courts below on a question of fact, if not based on misreading or non- reading of D evidence and not suffering from any illegality or material irregularity effecting the merits of the case, are not open to question at the revision al stage, but where on record the position is contrary to it, then the revisional Court in exercise of its jurisdiction under section 115, C.P.C. or this Court, in exercise of jurisdiction under Article 185(3) of the Constitution, are not denuded of their respective powers to interfere and upset such findings."
17. In view of the above, it is settled principle that when the concurrent findings suffer from misreading and non- reading of evidence or material illegality and irregularity , the same can be rectified by exercising supervisory jurisdiction.
18. For the foregoing reasons and discussions, by placing reliance on the judgments supra, the civil revision in hand is accepted, impugned judgments and decrees dated 16.07.201 1 and 22.12.2 012 passed by the learned trial Court and learned appellate court respe ctively , are set aside, consequently the suit instituted by the petitioner stands decreed as prayed for with no order as to costs.