MUHAMMAD IJAZ KHAN, J. Through the instant writ petition, petitioners have challenged the order and judgme nt of the learned Additional District Judge-II/Izafi Zilla Qazi, Dir Upper dated 04.10.2018, whereby he accepted the revision petition filed by the respondent No. 1 namely Mst. Noor-ul-Haram and set aside the order and judgment of the learned Civil Judge-II/Illaqa Qazi, Dir Upper dated 18.04.2016.
2. Precisely the facts of the case are that Liaqat Zarin and 05 others brought a suit against Rahman Zarin and 05 others for a declaration to the effect that they being the legal heirs of Ustad Zarin are entitled for their shari shares in the legacy of their father and that before partition amongst the legal heirs, the defendants are not legally authorized to make partition of the same or to dispose of the same through any manner.
3. Defendants were summoned and they submitted their written statements, howe ver, it was on 07.02.2009 when an application was submitted of a compromise deed/partition amongst the legal heirs of Ustad Zarin, which application has duly been singed by the petitioner No. 1 namely Liaqat Zarin from the plaintif fs' side and Rahman Zarin from the defendants' side. Their joint statement was also recorded by the trial Court, which has duly been singed by both the above persons in their personal as well as an attorney capacity of their parties. It is pertinent to mention here that a detailed partition deed/compromise deed was also drafted by both the parties and the learned trial Court on the basis of the aforesaid partition compromise deed Ex PA, decreed the suit vide judgment and decree dated 09.02.2009.
4. Thereafter , Mst. Noor-ul-Haram and 02 others filed an application on 06.10.2010 for the grant of final decree on the basis of preliminary decree dated 09.02.2009, to which the respondent No. 1 namely Rahman Zarin has also submitted his reply .
5. During pendency of the aforesaid application, a 12 (2) petition was filed by one Ahmad Zarin against both the parties of the aforesaid suit, for setting aside the preliminary judgment and decree dated 09.02.2009 on the ground that he has purchased a portion of the decreed suit property on the basis of a deed dated 10.07.1991 and the aforesaid preliminary decree dated 09.02.2009 has been obtained through fraud and misrepresentation. Both the parties submitted their replies to this 12 (2) petition, however , it was on 14.11.2014 when both the parties entered into a compromise, whereby the claim of Ahmad Zarin to the extent of 17x23 yards land alongwith two shops has been acknowledged and recognized by the respondents. It is pertinent to mention here that this compromise deed is duly signed by Liaqat Zarin and Rahman Zarin and as such the 12 (2) petition filed by Ahmad Zarin was dismissed as withdrawn on the basis of the aforesaid compromise deed Ex PA vide order and judgment dated 14.11.2014.
6. It merits to mention here that earlier application filed by Mst. Noor-ul-Haram and 02 others for the grant of final decree was withdrawn during pendency of the aforesaid 12 (2) petition vide order and judgment dated 14.12.2012 and as such after the aforesaid compromise arrived at between the parties in the 12 (2) petition, through another application, the proceedings for the grant of final decree were restored.
7. It is also pertinent to mention here that after restoration of the proceedings for the grant of final decree, the order sheet dated 18.04.2016 would reveal that Ahmad Zarin appeared before the learned trial Court and requested that his share of 17x23 yards land alongwith two shops in the decreed suit property may be separated on the basis of compromise arrived at between the parties, which has taken place in the 12 (2) petition, however , his stance was turned down by the lower Court and it was observed that if he is aggrieved he may seek proper remedy before the proper forum.
8. In view of the above, said Ahmad Zarin filed a review petition, wherein he challenged the order and judgment dated 14.11.2014 passed in the 12 (2) petition, whereby his 12 (2) petition was dismissed as withdrawn in view of the compromise effected between the parties, however , no amendment in the original decree dated 09.02.2009 was made. This review petition was duly contested by the contesting parties, however , the same was dismissed vide order and judgment dated 30.04.201 8 for the reason that the grounds for maintaining a review petition are not available with Ahmad Zarin.
9. This order of dismissing the review petition was challenged by the said Ahmad Zarin through a revision petition before the learned District Judge/Zilla Qazi, Dir Upper , however , the same was also dismissed vide order and judgment dated 04.10.2018.
10. It merits to mention here that the order dated 18.04.2016, whereby the plea of Ahmad Zarin for the separation of his share as per the terms of compromise arrived at between the parties was turned down as stated in Para 7 ibid, was also challenged by Mst. Noor-ul-Haram (who happened to be the wife of Ahmad Zarin) through a revision petition before the learned District Judge/Zilla Qazi, Dir Upper , which was allowed vide the impugned order and judgment dated 04.10.2018, the order of the learned trial Court dated 18.04.2016 was side aside and the learned trial Court was directed to issue direction to the local commission for partition of the disputed property amongst the legal heirs of Ustad Zarin in light of the preliminary decree dated 09.02.2009 but after exclusion of the property admitted by both the parties in favour of Ahmad Zarin through a compromise deed dated 14.11.2014 effected during pendency of the 12 (2) petition. Petitioners being aggrieved of the aforesaid order and judgment have challenged the same before this Court through the instant writ petition.
11. Arguments of learned counsel for the parties were heard in detail and the record perused with their able assistance.
12. Admittedly all the parties to the present proceedings except Ahmad Zarin are the legal heirs of Ustad Zarin.
Ahmad Zarin is the son-in-law of Ustad Zarin and husband of the respondent No. 1 namely Mst. Noor-ul-Haram, therefore keeping in view the factum of distribution of legacy between the parties and a specific plea of one of his close relative i.e. son-in-law and husband of his daughter are to be kept in line while dealing with the controversy between them as the controversy between the legal heirs is to be dealt with a different yardstick than a controversy between the persons who are not legal heirs inter -se. For the former , a lenient and flexible approach is to be adopted, whereas for the latter a strict adherence and principles of the law is to be adhered.
13. It is admitted on both ends that initially a suit was filed by the petitioner No. 1 namely Liaqat Zarin alongwith 05 others against his real brothers and sisters for determination of their shari shares in the legacy of their father namely Ustad Zarin, which suit was though contested by his other siblings who were defendants in the suit, however , in the middle of the proceedings, good conscious and old values prevailed, whereby they agreed that instead of fighting in different Courts of law, it is in the better interest of the family as well as for the siblings to make a private partition and to endorse the same through the process of the Court and as such to materialize the same, all the contesting parties executed a detailed partition deed/compromise deed and thereafter , the present petitioner No. 1 namely Liaqat Zarin himself and as an attorney for other plaintif fs and Rahman Zarin himself and as an attorney for other defendants appeared before the learned trial Court and both of them recorded a joint statement and as such a consent decree was passed on the basis of the aforesaid compromise vide judgment and decree dated 09.02.2009.
14. It is pertinent to mention here that thereafter , respondent No. 1 namely Mst. Noor-ul-Haram alongwith 02 others i.e. real sisters of the petitioner No. 1 namely Liaqat Zarin filed an application for the grant of final decree, however , during the pendency of the same, one Ahmad Zarin (who is the son-in-law of Ustad Zarin and husband of Mst.
Noor-ul-Haram) brought a 12 (2) petition for setting aside of the consent decree dated 09.02.2009 to the effect that in-fact he has purchased a portion of the decreed suit property , therefore to the said extent he prayed for modification of the decree. It is pertinent to mention here that during pendency of this 12 (2) petition, it was nobody else but the petitioner No. 1 namely Liaqat Zarin himself and Rahman Zarin who had appeared and they accepted and acceded the claim of Ahmad Zarin to the extent of 17x23 yards of land alongwith two shops, however , it is admitted that the learned trial Court instead of making any amendment in the consent decree dated 09.02.2009 to the effect that the land and shops (ackno wledged and recognized by Liaqat Zarin and Rahman Zarin legal heirs of Ustad Zarin) be excluded, it was straightaway on the basis of the aforesaid compromise Ex. PA when 12 (2) petition was dismissed being withdrawn. This mistake of the lower Court has caused multiplicity of the litigation between the parties, therefore the settled principle that no person shall be suffered for the act of the Court or any other public beneficiary , is fully attracted to the case of Ahmad Zarin.
15. It may be reiterated at the cost of repetition that since both the parties are the legal heirs of Ustad Zarin, therefore in view of the trust on each other when the respondent No. 1 name ly Mst. Noor-ul-Haram filed an application for the grant of final decree, Ahmad Zarin appeared before the learned trial Court as transpired from order dated 18.04.2016, requesting that his share measuring 17x23 yards alongwith two shops be separated, however , this stance of Ahmad Zarin was contested by the present petitioner No. 1 namely Liaqat Zarin to the effect that since the consent decree dated 09.02.2009 has not been amended, therefore the plea of Ahmad Zarin could not be considered, which objection prevailed with the learned trial Court which was later on rectified by the learned revisional Court in its revisional jurisdiction where it has rightly been observed that if on one hand, the judgment and decree dated 09.02.2009 is in field but on the other hand, the order passed in 12 (2) petition on the basis of compromise dated 14.11.2014 is also intact and the latter being later in time has to be given respect and regard specially when the parties are deriving their title from their common predecessor . It is astonishing as well as surprising that the present petitioner No. 1 namely Liaqat Zarin all alone is the signatory of both the compromise deeds i.e. compromise deed dated 07.02.2009 on the basis of which a consent decree dated 09.02.2009 was passed as well as, compromise deed dated 14.11.2014 on the basis of which the 12 (2) petition was consigned to the record room, therefore, with such admitted position his present conduct of challenging the impugned order is nothing but to frustrate and to deprive the other legal heirs to reap the fruits of the decree. The aforesaid conduct of the petitioner No. 1 namely Liaqat Zarin become more understandable when it is seen that he is the brother and son of Ustad Zarin whereas the other contesting parties are his sisters and brothers and legal heirs of Ustad Zarin and as such due to the unfortunate practice prevalent in this country , where the male legal heirs deprive their female legal heirs from their respective shari shares through hook and crook and through all possible means and to create hurdles in their way by stretching every circumstances to deprive them from their respective shari shares in the legacy . In inheritance cases, the Hon'ble Supreme Court of Pakistan has shown an immense displeasure and dismay over the conduct of male heirs, who are regularly excluding the female heirs from their respective share in the estate of their common predecessor . In this regard, Para-12 of the judgment titled Mst. Parveen (deceased) through LRs vs. Muhammad Pervaiz and others reported as 2022 SCMR 64 would be relevant, where the Hon'ble Apex Court has observed that we may once again state that, we are dismayed to observe the all too frequent practice in Pakistan of male heirs resorting to fraud and other tactics to deprive female heirs from their inheritance. While this deprivation causes suffering to those deprived, it also unnecessarily taxes the judicial system of the country , resulting in a 'need less waste of resources. Each and every day that a male heir deprives a female heir is also an abomination because it contravenes what has been ordained by Almighty Allah.
16. It is also relevant to mention here that on the available record, not a single document is available to show that petitioner No. 1 namely Liaqat Zarin and other legal heirs of Ustad Zarin have resiled from the compromise dated 14.11.2014 on the basis of which the 12 (2) petition filed by Ahmad Zarin was dismissed as withdrawn. Had it been so then of-course the said Ahmad Zarin would have a fresh cause of action but since nothing is available in black and white to show even remotely that the parties to the 12 (2) petition have resiled from the aforesaid compromise, therefore such objection of learned counsel for the petitioners that he should file a fresh suit, is also misconceived.
17. Through the instant writ petition, petitioners have challenged the order and judgment of the learned revisional Court for issuance of the desired writ of certiorari to declare the same as illegal and unlawful, however , during the course of arguments learned counsel for the petitioners was confronted that as to whether the learned revisional Court has lacked jurisdiction to pass the impugned order and judgment or it has exceeded its jurisdiction or that it has improperly exercised its jurisdiction but he was unable to pinpoint any such ground, therefore the desired writ of certiorari against the order and judgment of the learned revisional Court could not be issued in favour of the petitioners. In the case of Amjad Khan vs. Muhammad Irshad (deceased) through LRs reported as 2020 SCMR 2155 , the Hon'ble Apex Court has held that it is by now a settled principle of law that the High Courts must not exercise their constitutional jurisdiction in order to interfere with the discretion exercised by lower Courts unless the same suffers from jurisdictional, factual or legal errors. In other words, such interference would be justified in cases where the impugned order has been passed without jurisdiction or is based on misreading or non-reading of evidence, or is not in accordance with the law. If none of these errors is present, the High Courts must not exercise their constitutional jurisdiction to interfere with the findings of lower Courts merely because it reached a different conclusion as to the controversy than the latter . Similarly , in the case of Mst. Mobin Fatima vs. Muhammad Yamin and 2 others reported as PLD 2006 Supreme Court 214, the Hon'ble Apex Court has also held that the High Court, no doubt, in the exercise of its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can interfere if any wrong or illegal conclusions are drawn by the Courts below which are not based on facts found because such an act would amount to an error of law which can always be corrected by the High Court.
18. For what has been discussed above, the impugned order and judgment of the learned revisional Court dated 04.10.2018 is found by this Court to be the result of proper and fair exercise of the jurisdiction vested in it, wherein no illegality or irregularity or jurisdictional defect or excess of jurisdiction or improper exercise of jurisdiction could be pointed out by learned counsel for the petitioners, therefore, the same is maintained and upheld and consequently , the pray of the petitioners for issuance of the desired writ is hereby declined.