MALIK HAQ NAWAZ, CJ. The instant civil revision is directed by the Petitioners/Plaintiffs against the findings of facts recorded by the learned District Judge Gilgit vide his judgment and decree dated 24-09-2019 whereby the learned District Judge Gilgit has accepted civil first appeal of the present respondents by setting aside the judgment/decree passed by the learned trial Court and also dismissed the suit of present petitioners/plaintiffs.
2. Short facts of the case giving rise to the filing of instant civil revision petition are that Plaintiff/Petitioner Mst. Zulaikha daughter of Muhammad Kasir instituted a civil suit against the respondents/defendants for declaration and possession of landed property mentioned in the head note of the plaint by asserting that the suit property was left behind by her real brother namely Ghulam Rasool, who died issue-less. Plaintiff further contended that according to Fiqa Jaffaria, she being real sister and sole legal heir of her real brother namely Ghulam Rasool (late), is exclusive owner of the legacy left by her deceased brother.
3. The suit was contested by the respondents/defendants by way of filing their written statement and denied the averments of the plaintiff on many legal and factual objections. From the divergent pleadings of the parties the learned trial' Court has framed as many as 13 issues besides 8 additional issues including issue of relief. The learned trial Court after recoding evidence pro and contra and after hearing final argument of the parties fixed the case for decision. In the meantime plaintiff filed an application for amendment in the suit and during proceedings on amendment application plaintiff Mst. Zulaikha had expired and her LRs has been added in the suit and after that the learned trial Court allowed the amendment application of the plaintiffs and the plaintiffs filed amended suit in the trial Court.
4. It is pertinent to mention here during proceedings before the learned trial Court parties to the suit agreed to decide the suit on Oath and accordingly the attorney for the LRs of the plaintiff took Oath on the Holy Quran and the learned trial Court on the basis of Oath took by the attorney for plaintiffs, decreed the suit in favour of LRs of the plaintiff vide judgment/ decree 28-10-1997.
5. Being dis-content with the judgment/ decree dated 28-10-1997 passed by the learned trial Court present respondent No.1/defendant No.2 Ali Muhammad preferred civil first appeal before learned District Judge Gilgit. The learned District Judge Gilgit after hearing the parties, accepted the civil first appeal filed by present respondent No.1 and set aside the judgment/decree dated 28-10-1997 to the extent of present respondent No.1 vide judgment/ decree dated 12-4-2001. Respondent No.2 accepted the judgment/decree dated 28-10-1997 passed by the learned trial Court and he has not filed any appeal or revision before any competent Court, as such the judgment/decree passed by the learned trial Court on the basis of Oath has gained finality to the extent of present respondent No.2. As such the petitioners have wrongly arrayed respondent No.2 in the instant civil revision petition. After disposal of the said civil first appeal the learned District Judge Gilgit remanded the case back to the learned trial Court for decision on merits.
6. After completion of proceedings and hearing argument of parties, the learned trial Court has decreed the suit of the plaintiffs vide judgment/ decree dated 20-11-2013. Being dis-content with the impugned judgment/ decree dated 20-11-2013 passed by the learned trial Court present respondent No.1/defendant No.2 preferred civil first appeal before the learned District Judge Gilgit.
The learned District Judge Gilgit after hearing the arguments of parties accepted the civil first appeal vide judgment/ decree dated 24-09-2019 by setting aside the judgment/ decree passed by the learned trial Court.
Being aggrieved with the said judgment/decree passed by the learned District Judge Gilgit, the present petitioners/plaintiffs preferred the instant civil revision petition before this Court with a prayer that:- "It is, therefore prayed that this Hon'ble Court may be pleased to set aside the judgment/decree is impugned herein, it is further prayed to avoid any confusion the matter be remanded to the Court of Civil Judge to decide the matter on its own merits".
7. The Learned counsel for the Petitioners/plaintiffs argued that the learned District Judge Gilgit has not followed the provision of relevant law applicable to the matter in hand and has wrongly passed the impugned judgment/ decree, hence, the judgment/decree of the learned District Judge Gilgit is not maintainable. He further submitted that the suit of plaintiffs/ petitioners was rightly decreed by the learned trial Court after correct appreciation of law and material available on file but the learned District Judge Gilgit has misunderstood the facts and materials available on file, hence, the judgment/ decree of first appellate Court is liable to be set aside. He further submitted that the judgment/ decree passed by the learned District Judge Gilgit is based on surmises and conjectures, hence, the impugned judgment/ decree is not maintainable and is liable to be set aside. He further submitted that respondent No.1 has failed to rebut the contention of the petitioners and the learned District Judge Gilgit has wrongly dismissed the suit of the petitioners, therefore, the judgment/ decree of the first appellate Court is liable to be set aside. He further submitted that plaintiff Mst. Zulaikha is real sister and sole Legal heir of deceased Ghulam Rasool, therefore, under Shia law of inheritance plaintiff Mst. Zulaikha is entitled for whole legacy of deceased Ghulam Rasool, hence, the judgment/ decree passed by the learned District Judge Gilgit is against the Islamic law of inheritance, therefore, liable to be set aside. Lastly, the learned counsel argued that the Judgment/ decree passed by the learned trial Court is based on correct appreciation of law, hence, the judgment/ decree passed by the learned trial Court may be maintained by setting aside the judgment/ decree passed by the learned District Judge Gilgit to meet the ends of justice.
8. On the other hand learned counsel for the respondent No.1 has strongly defended the judgment/ decree passed by the learned first appellate Court Gilgit by asserting that the judgment/ decree passed by the learned District Judge Gilgit is result of correct appreciation of applicable law and material available on file. He further submitted that plaintiff had concealed the fact regarding previous litigation that she has already filed a civil suit for her sharai share and after a long litigation succeeded to bring the said suit home, therefore, the instant suit is hit by Order II, Rule 2, C.P.C. and the learned District Judge has correctly applied his judicious mind. He further submitted that deceased Ghulam Rasool has disposed of all his landed properties during his life time, therefore, plaintiff has no cause of action to file the instant suit against the respondent and the suit of the plaintiff is rightly dismissed by the learned first appellate Court. Concluding his arguments the learned counsel for the respondent No.1 submitted that the instant revision petition is not maintainable, therefore, liable to be dismissed to meet the ends of justice.
9. I have heard the arguments advanced by the learned counsel for the Parties and have also perused the record available on file.
10. From perusal of record it reveals that according to pedigree table annexed with the plaint, Plaintiff Mst. Zulaikha, Ghulam Rasool, Mst. Jahan Begum and Ghulam Muhammad are sons/ daughters (LRs) of deceased Muhammad Kaseer. It is admitted position in the case that the suit land mentioned in the head note of the plaint was legacy of their father Muhammad Kaseer, which was after the death of their father has equally been distributed between his two sons namely Ghulam. Rasool and Ghulam Muhammad. Lateron Plaintiff Mst. Zulaikha filed a civil suit bearing No.30/1990 before the learned trial Court for her Sharai share in the legacy of her father. After completion of the proceedings in the said suit the learned trial Court granted decree to the extent of land measuring 11-1/2 Marlas in favor of plaintiff. Mst. Zulaikha and after execution plaintiff Mst.
Zulaikha obtained possession of the decreed land.
11. Now Plaintiff Mst. Zulaikha has again filed the instant suit for her Sharai share in the legacy of her real brother namely Ghulam Rasool. It is admitted fact in the case that Mst. Zulaikha was real sister/ LR of deceased Ghulam Rasool and it is also admitted on record that deceased Ghulam Rasool had died issue-less. It is also on record that parties belongs to Shia Sect and followers of Fiqah Jaffria and according to Fiqah Jaffaria a nearer LR excludes the more remoter LR, hence Plaintiff Mst. Zulaikha being real sister/ sole LRs has excludes all the children/ LRs of her deceased sister Mst,. Noor Jahan and her deceased brother Ghulam Muhammad.
Despite the above admitted facts, from perusal of statement of Mst. Zulaikha, recorded by her in the previous suit bearing No.30/ 1990 reveals that the actual legacy/ landed property of her father deceased Muhammad Kaseer was 7 Kanal and 11 Marlas of land but the plaintiff in the instant suit has reflected total legacy of her father deceased Muhammad Kaseer as 7 Kanal and 2-1/2 Marlas.
Plaintiff has concealed the fact that she had obtained decree in the previous suit and got possession of decretal land measuring 11- 1/2 Marlas and she has not mentioned the said fact in the instant suit. Hence, after deduction of 11-1/2 Marlas of decretal land from the total legacy of her father Muhammad Kaseer there remains only 6 Kanal and 11 Marlas land and after that the share of each brothers would be 3 Kanal and 5-1/2 Marlas. It is proved on record that deceased Ghulam Rasool in his life time alienated his properties/ land i.e. 16 Marlas of land to Anjuman-e-Baltistania, 1 Kanal and 2 Marlas land to Shikah Shafi and 1 Kanal 6 Marlas land to one namely Ali Yar. As such these transactions have consumed the total share of deceased Ghulam Rasool, hence, it transpired that Plaintiff Mst. Zulaikha had given wrong statement in respect of total legacy of her deceased brother Ghulam Rasool.
12. Further that, prior to filing the instant suit plaintiff Mst. Zulaikha had preferred a civil suit bearing No.30/ 1990 only for her sharai share from the legacy of her father Muhammad Kaseer despite having knowledge regarding issueless death of her brother Ghulam Rasool in the year, 1989 and cause of action to file suit for her sharai share in the legacy of her brother was accrued to the plaintiff soon-after the death of her deceased brother. It is evident from the record that namely Ghulam Rasool had died before filing of the previous suit bearing No.30/ 1990 by the plaintiff Mst.
Zulaikha to the extent of her share in the legacy of her father Muhammad Kaseer and the Plaintiff in the previous suit did not bother to claim her Sharai share in the legacy of Ghulam Rasool. As such the provisions of Order II, Rule 2, C.P.C. fully attracts in the instant suit. Order II, Rule 2 reads:- "Suit to include the whole claim.----(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within jurisdiction of any Court".
From perusal of above, it is crystal clear that under law no one should be twice vexed on the same cause of action and there should be an end to litigation. The learned counsel for he petitioners failed to substantiate the grounds mentioned in the petition in hand and also failed to point out any material illegality or irregularity in the impugned judgment/ decree. The Judgment/ decree passed by the learned District Judge Gilgit is well reasoned and is the result of correct appreciation of law applicable to the matter in hand and has rightly appreciated the material available on file, therefore, does not call for any interference by this Court in its revisional jurisdiction under section 115, C.P.C.
13. The nutshell of the above discussion is that, the instant petition has no merit, hence, dismissed by upholding the judgment/ decree of the learned District Judge, Gilgit passed in CFA No. (37/2013), (90/2014), 36/2018. No order as to cost. File after due completion be consigned to record.