SHAHID KHAN, J. The petitioners have called in question the validity, legality and exercise of jurisdiction of the learned appellate Court in respect of the judgment and decree, dated 25.06.2014, passed in Civil Appeal No.20/XIII of 2013, whereby, the appeal of the petitioners was dismissed and the judgment and decree, dated 14.05.2013, of the trial Court, passed in Civil Suit No.16/1 of 2011, was upheld.
2. In essence, the plaintiffs, Abdul Aleem, Abdul Wahid, Abdul Khaliq, sons, and Mst. Rabia Bibi, daughter of Ghous Ullah (respondents Nos.1 to 4) filed a Civil Suit No.16/1 of 2011, against the defendants (respondents Nos.5 to 15) and the present petitioners, on 02.11.2011, before the Court of Civil Judge/Illaqa Qazi, Chitral at Drosh, wherein, they sought declaration of their Shari shares in the suit property fully described in list "Bay" annexed with the plaint, possession through partition, perpetual injunction, recovery of produce of their shares for the last 22 years, cancellation of sale deeds in respect of their Shari shares in the suit property and recovery of litigation expenses.
3. The defendants Nos. 1 to 4 (referred to the petitioners) and the defendants Nos. 6 to 8 (referred to the respondents Nos. 6 to 8) appeared before the trial Court and contested the suit of the plaintiffs-respondents Nos. 1 to 4 by submitting their respective negative written statements, whereby, they refuted their claim with certain legal and factual objections, whereas, the defendants-respondents Nos. 5 and 9 to 15 conceded the claim of the plaintiffs respondents Nos. 1 to 4 and submitted cognovit in their favour.
4. The trial Court, on 22.09.2011, framed as many as 10 issues from the contentious pleadings of the parties, to which, both the parties afforded full opportunity by adducing pro and contra evidence in support of their respective contentions. The trial Court after hearing arguments of learned counsel for the parties, passed a preliminary decree in favour of the plaintiffs-respondents Nos.1 to 4, against the defendants including the petitioners and respondents Nos. 5 to 15, vide judgment and decree, dated 14.05.2013.
5. Being aggrieved, the petitioners assailed the aforesaid judgment and decree of the trial Court by preferring an Appeal No.20/XIII of 2013 instituted on 25.06.2014, before the District Judge/Zilla Qazi, Chitral, for appropriate remedy, however, the same was not succeeded and after hearing arguments of learned counsel for the parties, dismissed vide impugned judgment and decree, dated 25.06.2014. Now, the petitioners approached this Court for setting aside of the judgments and decrees of both the learned two Courts below and prayed for the dismissal of suit of the plaintiffs-respondents Nos. 1 to 4, through filing the instant civil revision petition.
6. Heard and record gone through with the able assistance of learned counsel for the parties.
7. Learned counsel for the petitioners mainly based his arguments on the point of limitation and argued that if an heir hadn't claimed his/her lawful Shari share in the property of his/her immediate predecessor-in-interest during his/her life time, then his/her legal heirs has got no locus standi to claim any share of inheritance or otherwise, of his/her predecessor-in-interest and to this effect, he relied upon certain case law i.e. Syed Kausar Ali Shah and others v. Syed Farhat Hussain Shah and others reported as 2022 SCMR 1558, Salamat Ali and others v. Muhammad Din and others reported as PLD 2022 Supreme Court 353, Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others reported as 2022 SCMR 933, Muhammad Rustam and another v.
Mst. Makhan Jan and others reported as 2013 SCMR 299, Qamar Sultan and others v. Mst.
Bibi Sufaidan and others reported as 2012 SCMR 965, Kala Khan and others v. Rab Nawaz and others reported as 2004 SCMR 517, Abdul Haq and another v. Mst. Surrya Begum and others reported as 2002 SCMR 1330, Saadat Khan and 2 others v. Shashid-ur-Rehman and others reported as 2018 YLR Note 14 [Peshawar], Mst. Shahi Lal and 5 others v. Khurshid Ali Khan and 13 others reported as 2015 YLR 2443 Peshawar 8. Learned counsel for the respondents convincingly argued that the right of inheritance has been established from the Holy Qur'an and Sunnah, to which, the law of limitation' is not actually applicable and run against inheritance case.
Even otherwise, substantive right of a legal heir could not be extinguished or defeated merely on the ground of limitation, particularly, in the male dominant society, where ordinarily, the male legal heirs do not accept the inheritance right of a female heir in the legacy of their predecessor-in- interest and they always trying either way to oust and deprive female heir from her due Shari right of inheritance in the legacy of her predecessor-in-interest and same is the position of instant case.
So far as this objection of learned counsel for the petitioners that the predecessor-in-interest of the plaintiffs-respondents, Mst. Tayee-Nisa, had not claimed her alleged legal and Shari right of inheritance in the suit property during her life time, is concerned, this issue has been raised and agitated for the first time before this Court, which objection is neither remained part of their written statements nor they ever raised or agitated this issue before the learned two Courts below, therefore, the petitioners could not be allowed to raise this objection at this belated stage and that too in its revisional jurisdiction of this Court.
9. On merits, it is transparent from the floating facts surfaced on record that undisputedly, the plaintiffs-respondents Nos.1 to 4 are the legal heirs of Mst. Tayee-Nisa (late) daughter of Shafi-ud- Din (late), whereas, the defendants Nos.1 to 9 (the petitioners and respondents Nos.5 to 9) are the sons and daughters of Faiz-ud-Din (late) son of Shafi-ud-Din. Defendants-respondents Nos.10 and 11 are the daughters of Shafi-ud-Din and sisters of the mother of the plaintiffs/respondents Nos. 1 to 4 and the father of the defendants Nos.1 to 9, whereas, the defendants/respondents Nos. 12 to 15 are allegedly the purchased owners in the suit property. It is the case of plaintiff-respondents Nos. 1 to 4 that Shafi-ud-Din, the predecessor-in-interest of the petitioners and the respondents Nos.1 to 9, on his death, had left the whole suit property to the mother of the plaintiffs-respondents and father of the defendants Nos. 1 to 9 including the petitioners as his legacy. Later on, Mst. Tayee-Bibi, the predecessor-in-interest of the plaintiffs-respondents Nos. 1 to 4 died and her Shari shares were inevitably left to the plaintiffs-respondents Nos. I to 4 by force of law and Shariah. As the suit property is their joint ownership and not yet partitioned, however, the petitioners-defendants were going to make transactions in respect of the suit property, therefore, the plaintiffs-respondents Nos.
1 to 4 filed the subject suit.
10. It is reflected from the record that the relationship of the parties is not disputed. Similarly, the petitioners defendants in their initial written statement have admitted the suit property as the ownership of their grandfather Shafi-ud-Din, who allegedly gifted the same to their father Faiz-ud- Din vide gift deed dated 07.08.1934 and he left no legacy. Subsequently, they resiled from their previous stance setup in their initial written statement and introduced a new stance followed by amended written statement, alleged therein that Shafi-ud-Din, their grandfather and Faiz-uz-Din, their father, were the tenants of Shahzada Hisam-ul-Mulk etc. and they were not the owners of ancestral/personal or purchased property in the vicinity, therefore, they left no legacy, on their death and they derived the suit property from Shahzada Samsam-ul-Mulk son of Shahzada Hisam-ul-Mulk, on the basis of a compromise executed on 02.04.2005 vide compromise deed (Ex:PA) though the said compromise deed discloses no details of the properties mentioned therein to identify the same with boundaries or even with its measurement so as to believe/affirm the fact that as to whether the said compromise was in respect of the suit property or otherwise, as the petitioner No.3 (Adina Khan), DWI, in his cross-examination admitted that the decisions relied upon and attached by the petitioners with their written statement having no details about measurement and boundaries of any property. Relevant portion of the statement of DW1 is reproduced as follows: Thus, the petitioners failed to substantiated their plea that the suit property was not the legacy of their grandfather Shafi-ud-Din and the same was acquired by them through a compromise dated 02.04.2005 from Shahzada Hisam-ul-Mulk etc. As such, the learned two Courts below have rightly decreed the suit in favour of the plaintiffs-respondents Nos. 1 to 4, against the petitioners defendants.
11. Apart from the above, it is well settled law that one cannot go back from his previous stance as once admitted a material fact by a party in the pleadings, then he cannot retreat therefrom either way through amendment in pleadings or otherwise. It is apparent on the face of record that the petitioners are blowing hot and cold in the same breath as stated above the petitioners have setup two counter pleas, which are not acceptable under the law. Reliance is placed in the case of Shahzada Aman-e-Room and others v. Sher Bahadar Khan and others reported as 2022 YLR 2295 [Peshawar (Mingora Bench)], wherein, this Court has observed: "Be that as it may, when on one hand, the petitioners took the plea that in first ever application of Chanchanay Khan, the property was not described, therefore, no specific possession could be handed over or described in the revenue papers but on the other hand, the petitioners themselves accepted the specification of the Khasra numbers in favour of the decree holders who were respondents before the Federal Land Commission where the revision petitions were pending along with revision petition against respondents Nos. 1 to 9. The principle of approbate and reprobate would come into play as the petitioners would not be allowed to blow hot and cold in the same breath. The admission on the part of the petitioners regarding purchase of the property from some of the decree holders would also amount to an estoppel against the present petitioners as it precludes a person from denying the truth of a narration earlier made by him."
Similarly, in the case of Mushtaq Ahmad v. Mohsin Iqbal, reported as 2022 CLC 1461 Lahore, the High Court of Lahore, has been held: "Any such admission even implied or statement given before the court of law will operate as legal estoppel (words used by the Hon'ble Supreme Court of Pakistan in number of cases) and estoppel by conduct against a party making such admission or giving such a statement or understanding. The doctrine of estoppel enacted in Art. 114 of Qanun-e-Shahadat Order, 1984 is, in fact, an equitable doctrine, a rule of exclusion, which implies that if a person has by act or omission altered his position, he will be estopped and be precluded or debarred from denying it or take a position so as to alter his position to the determinant of the other person/the opposite party and prevents the litigant from raising inconsistent plea(s) in judicial proceedings by disallowing the litigant from blowing hot and cold at the same time."
12. The learned two Courts below have concurrently non-suited the petitioners on the basis of logical reasons by recording their findings, which neither suffer with any jurisdictional defect nor have any material irregularity, so as to warrant interference of this Court in exercise of its revisional jurisdiction under section 115, C.P.C. In its recent judgment titled as Nasir Ali v. Muhammad Asghar reported as 2022 SCMR 1054, august the Supreme Court held: "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."
In the case of Salamat Ali 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."
Similarly, 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 another case titled as Shahbaz Gul and others v. Muhammad Younas Khan and others reported as 2020 SCMR 867, the Apex Court held: "Where two different intef pretations were possible of the evidence brought on record, as is the matter in the instant case, then appraisal of facts of lower courts should not have been overturned by the learned High Court in its revisional jurisdiction under section 115, C.P.C.
Between two possible interpretations, the one adopted by the learned 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 2002 SCMR 933, Hon'ble Apex Court has held that the High Court has a narrow and limited jurisdiction to interfere with 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."
13. In view of what has been discussed above, learned counsel for the petitioners failed to pinpoint any illegality, material irregularity or a jurisdictional defect in the impugned concurrent judgments and decrees of the learned two Courts below. Resultantly, the instant revision petition stands dismissed being bereft of merits.