MUHAMMAD IJAZ KHAN, J. Through the instant revision petition, the petitioner has challenged the judgment and decree of learned Civil Judge/Illaq Qazi-II Malakand at Dargai dated 21.12.2012 whereby the two suits bearing No. 7/1 titled "Mst. Taj Mina v. Nisar and others" and Suit No.6/1 titled "Mst. Wasiha and others v. Muhammad Nisar and others" have been do reed to the extent of their Shari shares and that of judgment and decree of learned Additional District Judge Izafi Zilla Qazi Malakand at Dargai dated 19.03.2014 who vide the same had dismissed the appeal of the petitioner/defendant.
2. Precisely the facts of the case are that Mst. Taj Mina brought a suit for declaration to the effect that she being the daughter of Malak Rahim Shah is entitled for her Shari share in the legacy of his father namely Malak Rahim Shah along with his other legal heirs. It has been pleaded in the plaint that the plaintiff namely Mst. Taj Mina and defendants Nos. 1 to 8 are siblings inter-se and as such are legal and lawful legal heirs of Malak Rahim Shah, whereas rest of the defendants Nos. 10 to 21 are her relatives, whereas defendants Nos. 22 to 24 have purchased some property from the parties in the legacy of Malak Rahim Shah. She has also appended the pedigree table of Malak Rahim Shah where she has categorically pleaded that she being legal heir is entitled for the partition, separation and possession of her respective share, however, when she approached to the respondents/ defendants they were reluctant to hand her over her Shari share in the property, therefore, she has approached to the civil Court for the grant of the desired decree.
3. Petitioner along with other defendants were summoned and they submitted their written statement; where petitioner then defendant No.1 namely Muhammad Nisar has pleaded that in- fact the respondent/plaintiff Mst. Taj Mina and her paternal aunts who were defendants Nos.10 and 11 namely; Mst. Wasiha and Mst. Mehr Zamina had already been given their shares in the legacy at the time of their marriage by way of payment of cash amount as well as gold ornaments.
Defendants Nos. 10 and 11 i.e. namely Mst. Wasiha and Mst. Mehr Zamina also filed their independent written statement where their stance was that the suit property along with other properties was the ownership of Hazrat Malak i.e. the father of defendants Nos. 10 and 11 and father of Malak Rahim Shah who is the father of petitioner and predecessor-in-interest of the parties.
Defendants Nos. 6 and 8 also filed their written statement where the admitted the claim of respondents/plaintiffs, however, they also claimed their shares in the suit property. Defendants Nos.
21, 22 and 27 being purchasers in the suit property have pleaded that they are bona fide purchasers and thus their rights need to be protected.
4. It is relevant to mention here that defendants Nos. 10 and 11 i.e. namely Mst. Wasilia and Mst. Mehr Zamina have also filed a suit claiming therein their Shari shares in the legacy of their father namely Hazrat Malak, who was the grandfather of the plaintiff namely Taj Mina as well, tlierefore, after filing of the aforesaid suit, the respondent/ plaintiff namely Mst. Taj Mina had also filed the aforesaid amended suit as stated hereinabove. Both the suits were consolidated and as such the learned trial Court framed as many as thirteen issues and thereafter the parties were required to produce their respective evidence which was accordingly produced by all the contesting parties and thereafter the learned trial Court vide one of the impugned judgment and decree dated 21.12.2012 decreed the suits of both the respondents/plaintiffs in the following terms:- "The upshot of my above discussion is that the suit of the plaintiff Mst. Taj Mina No. 7/1 titled as Taj Mina v. Nisar etc and suit of the defendants Nos. 10 and 11 titled as Wasiya etc v. Nisar etc No. 6/1 are hereby decreed to the extent of SHAR-E-shares in the properties of Rahim Shah and Hazrat Malik (late) respectively. However, the plaintiff and defendants Nos.10 and 11 are directed to approach revenue authorities for the partition of suit property.
The present petitioner being aggrieved of the aforesaid judgment and decree, preferred an appeal to the Court of learned Additional District Judge/Izafi Zilla Qazi, Malakand at Batkhela, however, he vide the impugned judgment and decree dated 19.03.2014 dismissed the appeal of petitioner/defendant No. 1. Petitioner has now challenged the aforesaid judgments and decree of the two Courts below before this Court through the instant petition.
5. Arguments of learned counsel for both the parties were heard in considerable detail and the record perused with their able assistance.
6. Before dilating upon the merits of the case, it would be relevant to understand the inter-se relationship of the parties for which their pedigree table is reproduced below:- The aforesaid pedigree table would show that defendant No. 10 namely Mst. Wasiha and defendant No. 11 namely Mst. Mehr Zamina are the sisters of Malak Rahim Shah and daughters of Hazrat Malak, whereas Mst. Taj Mina respondent No.1/ plaintiff is the daughter of Malak Rahim Shah and grand- daughter of Hazrat Malak. It is relevant to mention here that Hazrat Malak was survived by three daughters and two sons, whereas Rahim Shah was survived by five sons and seven daughters, therefore, in view of the inter-se relationship between the parties, the case of Mst. Taj Mina is that she seeks partition, separation and possession of her share in the legacy of her father namely Rahim Shah, whereas Mst. Wasiha and Mst. Mehr Zamina are seeking their shares in the legacy of their father namely Hazrat Malak who too was the father of Malak Rahim Shah and grandfather of Mst. Taj Mina.
7. It may be noted that in inheritance cases the plaintiff who is seeking share in the legacy of his/her predecessor has to prove two facts i.e. firstly the relationship of the plaintiff with the common predecessor of the parties and secondly that the suit property is the legacy of their common predecessor, whereas the defendant of an inheritance case if conceded to the relationship and legacy without taking any independent and exclusive plea then the Court is required to pass a decree in favour of the plaintiff straightaway, however, if the defendant set a specific plea claiming disinheritance on the basis of a specific plea then the defendant is bound to prove the same through positive, convincing and trustworthy evidence to exclude the plaintiff from the inheritance.
8. If the aforesaid yardstick which is also having a backing of judicial consensus, if applied to the case of respondents/plaintiffs then the evidence available on file would show that the contesting defendant No.1 namely Muhammad Nisar who is petitioner before this Court has not denied the relationship of Mst. Wasiha and Mst. Mehr Zamina with his father namely Malak Rahim Shah and of their father namely Hazrat Malak. Similarly, the petitioner has also not denied the relationship of Mst. Taj Mina with Rahim Shah and with the petitioner himself, as the petitioner and contesting respondents are siblings inter-se along with other, therefore, to the extent of relationship there is no dispute amongst the parties.
9. As far as the question of legacy is concerned, the same has also not been controverted by the petitioner/defendant No.1 in his written statement, the suit property being the legacy of their common predecessor has also been categorically admitted by the petitioner/defendant in his affidavit as well as during his Court statement recorded as DW-1, therefore, to this extent too, the respondents/plaintiffs are absolved of their burden of proof to establish the same and as such in view of the above admitted position the respondents/plaintiffs have been succeeded to prove their relationship with their common predecessor and that the suit property being the legacy of their common predecessor either with Hazrat Malak or Malak Rahim Shah, as the case may be.
10 As far as the plea of petitioner/defendant as taken in the written statement to the effect that the respondents/ defendants Nos. 10 and 11 were given their shares in the legacy by way of cash amount and gold ornaments by their father namely Hazrat Malak and to the respondent No. 1/plaintiff namely Mst. Taj Mina by his father Malak Rahim Shah at the time of their marriage, the same being relevant are reproduced below:- and as such the stance of the petitioner/defendant is that he is claiming disinheritance of the respondents/plaintiffs on the basis of aforesaid oral assertions. It may he noted the any legal heir who is claiming disinheritance on the basis of any mode of transaction or any other plea, then he is under heavy burden to prove the same as the plea of disinheritance goes squarely against the law of the land as well as the command of Allah Al-mighty, therefore, the law has shifted a heavy burden on such a person to prove the same, however, in this case the petitioner/defendant has miserably failed to establish his plea of disinheritance as pleaded by him in his written statement that the plaintiffs of the two suits were given cash amount and gold ornament as their shares in the legacy and these assertions remained bald assertions only as he has not brought on record an iota of evidence to establish the same. It remained a mystery all around that how much cash amount and how much gold was handed over to the respondents/plaintiffs of the two suits by their respective predecessors-in-interest. It has also not been established from record through production of any witnesses that in their presence the cash amount and gold ornaments were handed to the respondents/ plaintiffs as their shares in the legacy. It is also relevant to mention here that none of the witness has come forward to say that the cash amount or gold ornaments if paid whether it was a gift to their daughters on the eve of their marriages or the same was handed over to them as their shares in the legacy, therefore, the petitioner/defendant has not proved his plea of disinheritance through positive, convincing and trustworthy evidence, therefore, such plea cannot be entertained. It may be noted that heavy burden of onus/proof lies on the person who in an inheritance case, claims disinheritance on the basis if any mode of transaction and the beneficiary has to prove the same through a positive and legally admissible evidence. It is also settled law that the moment a muslim dies, his legacy devolves to all his legal heirs as per their respective prescribed shares and if any person disputes or controvert these prescribed shares, then a heavy burden of proof lies on him to prove those exceptional circumstances through a reliable confidence inspiring and legal admissible evidence. In the case of Hayat Bibi and others v.
Alamzeb and others reported as 2022 SCMR 13, the Hon'ble apex Court has held that on the death of a muslim, all his properties will devolve upon his all legal heirs as per their shares prescribed by Islamic Shariah and possession of any legal heir shall be deemed to possession by all. If anyone claims an exclusive possession as against the shares as determined by Islamic Shariah, the burden to establish such claim is upon him/her. Similarly, in the case of "Shabla and others v. Mst.
Jahan Afroz Khilat and others" reported as 2020 SCMR 352, the Hon'ble apex Court has held that given the preponderance of conferment, such a right, rooted into Personal Law, has to be jealously guided, therefore, a heavy onus is cast upon the claimant to demonstrate that a female legatee had parted with her entitlement by choice and for considerations, consciously, without duress or uncalled for persuasions, by those placed qua her in advantageous positions. It is not merely an invasion into proprietary rights of a woman but a criminal offence punishable under section 498-A of the Pakistan Penal Code, 1860 (Act XLV of 1860) as well. In the present case, any one with ordinary prudence, would fail to find any rational, prompting minor girl hardly of 13 years of age to alienate a considerable chunk of land in favour of her minor nephew aged less than two years; she was otherwise incompetent under the law to mutate the land; it sans solemnity as well.
11. In inheritance cases, the Hon'ble Supreme Court has shown an immense displeasure and dismay over the conduct of male heir, 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 v. 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 needless 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.
12. In this case, the two Courts below have concurrently recorded their findings of facts and law, which this Court found them as perfectly in accordance with the available evidence of the parties and thus the same neither suffer from any misreading or non-reading of evidence nor the same suffer from any illegalities or material irregularities, so as to warrant the interference of this Court in a revisional jurisdiction under section 115, C.P.C. The scope, extent and domain of revisional jurisdiction of this Court has elaborately been dilated upon by the Hon'ble apex Court in its recent judgment titled Nasir Ali v. Muhammad Asghar reported as 2022 SCMR 1054, it was also held that section 115, C.P.C., empowers and mete out the High Court to satisfy and reassure itself that the order of the subordinate Court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. The scope of revisional jurisdiction is limited to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or if the conclusion drawn therein is perverse or conflicting to the law. Furthermore, the High Court has very limited jurisdiction to interfere in the concurrent conclusions arrived at by the courts below while exercising power under section 115, C.P.C. Similarly, in the case of Salamat Ali and others v.
Muhammad Din and others reported as PLD 2022 Supreme Court 353, it was also held that a revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below. Similar view also reiterated by the Hon'ble apex Court in case titled Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 Supreme Court 13, where in para-6 it was held that it is well settled exposition of law, deducible from plethora of dictums laid down by superior Courts that section 115, C.P.C. empowers and meted out the High Court to satisfy and reassure itself that the order of the subordinate court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. It was also held by the Hon'ble apex Court in para-10 of the judgment rendered in the case of Mst. Zarsheda v. Nobat Khan reported as PLD 2022 Supreme Court 21, that in the case of Shahbaz Gul and others v.
Muhammad Younas Khan and others (2020 SCMR 867), this Court declared that where two different interpretations were possible of the evidence brought on record, then appraisal of facts of lower Courts should not be overturned by the High Court in its revisional jurisdiction under section 115, C.P.C. Between two possible interpretations, the one adopted by the trial and appellate Courts should have been maintained, keeping in mind the limited scope of revisional jurisdiction. In the case of Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others reported as 2022 SCMR 933, it was also held by the Hon'ble apex Court that the High Court has a narrow and limited jurisdiction to interfere in the concurrent rulings arrived at by the Courts; below while exercising power under section 115, C.P.C. These powers have been entrusted and consigned to the High Court in order to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities which cannot be invoked against conclusion of law or fact which do not in any way affect the jurisdiction of the Court but confined to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or the conclusion drawn therein is perverse or contrary to the law, but interference for the mere fact that the appraisal of evidence may suggest another view of the matter is not possible in revisional jurisdiction, therefore, the scope of the appellate and revisional jurisdiction must not be mixed up or bewildered.
13. In view of the above discussion, the impugned judgments and decree of the two Courts below respectively dated 21.12.2012 and 19.03.2014 are neither the result of misreading and non-reading of evidence nor the petitioner could point out any material irregularity nor jurisdictional defect in the same, therefore; the same are upheld and maintained and consequently the instant revision is dismissed.