SHAHID KHAN, J.- The petitioners have called in question the judgment & decree of the learned Additional District Judge, Malakand at Dargai, dated 22.12.2011, whereby, their appeal was dismissed, and consequently, the judgment & decree, dated 14.12.2010, of the learned Civil Judge, Malakand at Dargai, in respect of the subject property, detailed in the head-note of the plaint, was maintained.
2. In essence, the petitioners/plaintiffs approached the learned trial Court through a /is for declaration coupled with permanent injunction and possession to the effect that the subject property, detailed in the head-note of the plaint, is the legacy of their predecessor-in-interest, Mubassir, which devolved upon his legal heirs (petitioners/plaintiffs and respondents/defendants No. 1 to 13), as such, they are joint owners in possession of the same and till date, no official partition between the parties had taken place. However, for fulfilment of their needs, a private arrangement had taken place, through which the petitioners/plaintiffs are in possession of less property, while the respondents/defendants are in possession of the property more than their respective shares, as such, they are entitled to their shari shares in the legacy of their predecessor-in-interest and the respondents/ defendants have no right to execute any deed with respect to the subject property without their consent and if they have executed the same, then the same would be illegal, unlawful & ineffective upon their rights and liable to cancellation.
3. The subject claim of the petitioners/plaintiffs was contested by the respondents/defendants by filing their written statements. After recording evidence, far & against followed by hearing of learned counsel for the parties, the claim of the petitioners/ plaintiffs was dismissed by the learned trial Court vide judgment & decree dated 14.12.2010, followed by the judgment & decree of the learned appellate Court dated 22.12.2011, hence, the subject Revision Petition.
4. Arguments of learned counsel for the parties have been heard and the record scanned through with their valuable assistance.
5. In inheritance cases, firstly, the plaintiff is required to establish his relationship with the contesting defendants as well as with the common predecessor and secondly, that the suit property is the legacy of their common predecessor. In the subject case, relationship between the parties is admitted and similarly, the subject property has also been admitted to be the legacy of common predecessor-in-interest, Mubassir. However, the petitioners/plaintiffs contended that partition amongst the parties had not taken place and both the parties are joint owners of the subject property. As against this, the respondents/ defendants, in their written statements, have controverted the above contention by stating that amongst all the legal heirs of common predecessor-in-interest, Mubassir Baba, a private partition had taken place, as a result of it, every legal heir is owner in possession of his respective share. In this regard, a partition deed was also executed on 22.12.1963. For better understanding, it would be relevant to reproduce paras-9 & 10 of the preliminary objections of the written statement submitted by respondents/defendants No. 1 to 8, as under:
6. To prove their case, the petitioners/plaintiffs produced Aslam Khan, Patwari Halqa as PW-1, Said Abdul Wahab as PW-2, Sher Zada as PW-3 and Norab Shah as PW-4. PW-1 produced the relevant revenue record. PW-2 is the scribe of partition deed dated 22.12.1963. In examination-in-chief, he stated that at the behest of Said Bacha (predecessor of the respondents/defendants No. 1 to 4) and in absence of other parties, he had scribed the aforesaid deed. In his cross-examination, he stated that: From the above statement, it appears that the partition deed dated 22.12.1963 relied upon by the respondents/defendants has been admitted by witness (PW-2) of the petitioners/plaintiffs. He also informed the petitioners/plaintiffs about execution of the said deed but despite of it, they have neither mentioned it in their plaint nor challenged it before the Court.
7. Attorney of the petitioners/plaintiffs appeared as PW-3. In his examination-in-chief, he supported the contention of the petitioners/plaintiffs, however, in his cross-examination, he stated as under: With respect to filing of suit by their predecessor, Ibrahim Bacha, in his lifetime against his brother, Said Bacha, he stated that: As regards partition as well as sale & purchase of the subject property, he stated that:
8. PW-4 is the statement of one Norab Shah son of Rahim Shah. In examination-in-chief, he also supported the contention of the petitioners/plaintiffs, however, in his cross-examination, he stated that:
9. In view of the above, the Court reached to the conclusion that partition had taken place between the parties in the year 1963 and in this regard, a partition deed dated 22.12.1963 has also been executed, the same fact has been admitted by the petitioners/plaintiffs in their evidence. Moreso, after execution of the partition deed, dated 22.12.1963, predecessor of the petitioners/plaintiffs remained alive for about 08 years but despite that he, in his lifetime, had neither challenged the validity & authenticity of the aforesaid partition deed nor approached the learned civil Court by filing any suit against his brother, Said Bacha, for his shari shares in the legacy of his predecessor- in-interest, and as such, the petitioners/ plaintiffs, being his legal heirs, have no locus standi to claim the same through filing of the subject suit in the year 2008. Reliance is placed on the judgment of this Court rendered in the case of Muhammad Nawaz and others v. Ameer Bahadur and others reported as PLD 2023 Peshawar 12, wherein, it was held that: "When a legal heir is deprived of his/her right of inheritance and he/she remains alive for a considerable period and do not challenge his/her deprivation from the legacy of the predecessor, then at later stage when the legacy changes many hand, the further legal heirs have no locus-standi to challenge the said inheritance mutation which remained unchallenged during the life time of their predecessor."
Similarly, in the case of Bahadur Khan and 6 others v. Muhammad Anwar and others reported as 2023 MLD 226 [Balochistan], the Balochistan High Court has also held that: "The record is suggestive of the fact that the respondents Nos. 1 to 6/plaintiffs had not challenged the said entry in the revenue record in the lifetime of Shireen Khan. Moreover, no plausible reason is reflected in the evidence of the respondents Nos. 1 to 6/plaintiffs showing as to why the mother of the respondents Nos. 1 to 6/plaintiffs did not challenge the inheritance. It is settled law that no one can become mum for his/their right for such a long period."
10. As such, it can safely be concluded that the petitioners/plaintiffs have not been able to prove their plea(s) taken by them in their plaint with respect to joint ownership of the subject property.
Under the law, the petitioners/plaintiffs have to establish the facts on the strength of their evidence, so set up in their plaint. In this regard, Article 117 of the Qanun-e-Shahadat Order, 1984 is relevant, which is reproduced as under: "117. Burden of proof.-- (1) Whoever desires any Court to give judgment as to any legal right of liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
The aforesaid Article declares that a person, desires a Court to issue a judgment in his favour, has to prove all those facts which he has pleaded in his plaint, however, the record made available before this Court would transpire that the petitioners/plaintiffs could not prove the existence of all those facts on which they have based their plaint. Needless to mention here that the plaintiff has to prove his own case on the basis of his own evidence and he cannot be allowed to take any benefit from the weakness or lapses of the defendant's evidence. Reliance is placed on the case of Qahaim Khan and 4 others v. Amar Khan and 2 others reported as 2022 CLC 335, wherein, the Balochistan High Court has held that: "Admittedly it is responsibility and duty of claimant to prove his case on his own strength. Under Article 117 of Qanun-e-Shahadat Order, 1984 (Order, 1984), the burden of proof lies on person who desire the court to give decision in his/their favour. It is bounden duty of a party to prove the claim through cogent and confidence inspiring evidence. The plaintiff must prove his case on the strength of his own evidence. He cannot take benefit from the weaknesses of the defendant's case."
Similarly, in the case of Muhammad Latif v. Bashir Ahmed and 7 others reported as 2004 CLC 1010, the Lahore High Court has also held that: "It is settled proposition of law that a party has to succeed on the basis of his own evidence and not on account of lapses in the case of his adversary.
In the case of Abdul Waheed v. Muhammad Bilal reported as PLD 2005 Peshawar 19, this Court has also held that: "Needless to emphasize that burden of proof always lies upon the plaintiff and plaintiff cannot be benefited from short comings of defendant's case, where the case of plaintiff was doubtful and the entire evidence of plaintiff was self-contradictory and highly discrepant."
11. To conclude, it is observed that the learned trial Court coupled with the learned appellate Court, in view of proper appraisal of the facts & circumstances and the evidence so recorded, have arrived at the just conclusion of the matter in issue, as such, the impugned concurrent findings of the learned Courts below do not need any interference. Reliance is placed on the case of Nasir Ali v. Muhammad Asghar reported as 2022 SCMR 1054, wherein the Hon'ble Apex Court has held: "Section 115, C.P.0 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 All and others v. Muhammad Din and others reported as PLD 2022 Supreme Court 353, it was observed: "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."
In para-6 of the judgment rendered in the case of Muhammad Sarwar and others v. Hashmal Khan and others reported as PLD 2022 Supreme Court 13, it was also 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."
In Khudadad v. Syed Ghazanfar All Shah alias S. Inaam Hussain and others reported as 2002 SCMR 933, the Hon'ble Apex Court has held 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. Relevant findings of the august Court are reproduced as under: "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."
12. For the reasons stated hereinabove, the subject Revision Petition is devoid of any merit, which is hereby dismissed.