MUHAMMAD BASHIR JEHANGIRI, ---The question which fell determination before the Courts below was whether Mst. Sheran and Mst. Jannat, respondents, were respectively the daughter and widow of Langar son of Sardara, a Muslim Jat, Chak No,16/WB, Tehsil and District Vehari, and as such were entitled to inherit his estate to the extent of (1/8 + 1/2)= 5/8th share while the petitioners who were his grandsons from his second son Umar were to inherit the remaindar 3/8th share as residuaries.
2. All the three Courts. Namely, the 'Civil Judge III Class, Vehari, the Additional District Judge, Vehari and the Lahore High Court at Multan Bench, have unanimously answered the question in the affirmative.
3. The dispute between the parties is in respect of the property left by Sardara deceased, proprietor in the revenue estate of Chak No,16/WB, Tehsil and District Vehari. Mst. Sheran Bibi and Jannat Bibi placed implicit reliance on the following pedigree-table:-- Langar Umar Mst. Jannat widow Mst. Sheran Bibi daughterTaja Raja
4. Langar deceased, according to the petitioners, died issueless and, therefore, the petitioners being sons of his two first nephews were entitled to the inheritance of Langar deceased in its entirety to the exclusion of anyone else including Mst. Sheran Bibi respondent No,1 and Jannat Bibi respondent No,2. It is the case of the petitioners that after the death of Langar deceased, his mutation inheritance No,312 was sanctioned on 1-1-1959 in the following manners:--
(i) Mst. Jannat Bibi (respondent No,2) 1/8th share as widow.
(ii) Mst. Sheran Bibi (respondent No,1) 1/2nd share (as daughter)
(iii)Raja and Taja (predecessor of the petitioners).3/8th share Against this order the petitioners moved an appeal before the learned Collector on the ground that Mst. Jannat Bibi and Sheran Bibi are not widow and the daughter of the deceased. The appeal was dismissed on 4-8-1960. The second appeal of the petitioners before the learned Commissioner was accepted on 4-10-1961 and the case was remanded to the learned A.C-II who in his turn sanctioned Mutation No,377 whereby entire estate was transferred to the petitioners to the exclusion of the respondents. It was held that Mst. Jannat Bibi and Sheran Bibi were not widow and daughter of the deceased Langar. After this, the Collector accepted suo motu review of the petitioners and sanctioned Mutation No,21 on 18-6-1965 and gave total inheritance to the petitioners. On 19-2-1986 Mst. Sheran Bibi claiming to be the daughter of the deceased Langar, instituted a suit for declaration claiming 1/2nd share in inheritance of Langar deceased.
Subsequently, Mst. Jannat Bibi also instituted a separate suit claiming 1/8th share. Both the suits were consolidated by the trial Court. On 11-1-1990 Mst. Jannat Bibi respondent submitted an application for withdrawal of her suit duly affirmed by her learned counsel. The petitioners, however, filed written statement to both the suits and denied the claim of the respondents. The learned trial Judge, however, found that Mst. Sheran Bibi was the daughter of Langar deceased and, therefore, she was entitled to 1/2nd share in the estate of Langar deceased and thus, her suit was decreed on 19-4-1990. The petitioners took an appeal to the learned Additional District Judge, Vehari, who dismissed it vide judgment dated 27-4-1994 with the modification that the second respondent was also entitled to 1/8th share as widow of Langar deceased. During the pendency of appeal, the petitioners had submitted an application for permission to adduce additional documentary evidence i.e, voterslist and record of Identity Cards of the respondents but the application was dismissed vide order dated 13-7-1991. The petitioners challenged this order by filing revision petition in the High Court which was also dismissed on 21-9-1991 and thus, the plea for permission to adduce additional documentary evidence attained finality. Against the judgment and decree dated 27-4-1994 the petitioners filed civil revision in the High Court which was also dismissed vide order dated 12-12-1997. It is the last mentioned order of the High Court against which leave to appeal has been sought for.
5. The entire thrust of the arguments of Mr. Awan Muhammad Hand Khan, learned Advocate Supreme Court appearing on behalf of the petitioners, was that during the pendency of appeal against the decree of the trial Court, the appellate Court had illegally declined to admit by way of additional evidence two documents, namely, (i) the photo copy of Nikahnama (Exh.A/6) purportedly evidnecing the Nikah of Mst. Manzooran daughter of Ali Khan with Haq Nawaz son of Ghulam Muhammad; and (ii) photo copy (Exh.A/2) comprising of four sheets filed in the Registration Office for issuance of identity card showing Mst. Manzooran Bibi daughter of Ali Khan and wife of Haq Nawaz and that of Mst. Jannat Bibi daughter of Behram Khan who belonged to Chak No,NB-84 or village Mannawala, Haji Chah Nawab Wala, Tehsil Kabirwala District Multan. In support of this argument, reliance was placed on (1) Zar Wali Shah v. Yousaf Ali Shah and 9 others (1992 SCM R 1778) and North-West Frontier Province Government, Peshawar through Collector, Abbottabad and another v. Abdul Ghafoor Khan through Legal Heirs and 2 others (PLD 1993 SC 418).
The ratio in the aforementioned case of Zar Wali Shah (supra) is that the concept of bar against filling the gaps was no more available in Pakistani jurisprudence and the law including the precedent law on Islamic principles; which are being made applicable progressively to the proceedings before the Courts and other forums which are required to record/admitevidence. In that case both the parties had respectively submitted for examination the admitted signatures of Saeed Shah. These signatures were compared in this Court but it did not help to reach any final conclusion. The visual comparison by a learned 'Division Bench of this Court showed that the signatures relied upon by the appellant did tally with the disputed one while the signatures relied upon by the respondent side, did not, and, therefore, "both the parties agreed that further probe could be made for resolving this controversy which; without any reservation is a major element in the decision of that appeal". Both the parties, therefore, offered therein to adduce further evidence if permitted to do so. The facts of that precedent are thus, quite distinguishable and are not attracted to those in the case before us. The law enunciated in the second case of Abdul Ghafoor Khan (supra) was that under Order XLI, Rule 27, C.P.C., Appellate Court is competent to record additional evidence but if that Court acts illegally or with material irregularity and on that account factual error is committed then in revision additional evidence can be admitted in a fit and proper case for clarification if that is essential for just decision of the case. There is no cavil with the proposition that under Order XLI, Rule 27, C.P.C., the parties are entitled to produce additional evidence, whether oral or documentary, if--
(i) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(ii) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.
6. In the instant case, however, the controversy on the entitlement of the petitioners to adduce additional evidence was taken to the High Court by way of revision which was dismissed by the High Court in the earlier round and the petitioners did not canvass it further before this Court and the finding had, thus, attained finality. The same controversy could not, therefore, be re-agitated before either the learned Additional District Judge or before the High Court when the appeal against the judgment and the decree granting relief to the respondents was upheld in appeal and civil revision in the present round.
7. The learned Judge in the High Court who was seized of the civil revision giving rise to this petition for leave to appeal has come to a definite conclusion in view of the law laid down by this Court in two cases, namely, Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) and Nazir Ahmad and others v. Abdullah and others (1997 SCM R 281) that two Courts below had concurrently found that Mst. Sheran Bibi and Mst. Jannat Bibi were respectively daughter and widow of the deceased Langar. This Court in the case of Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 SC 139) has held that the revisional jurisdiction under section 115, C.P.C.
Is meant primarily for correcting errors made by subordinate Courts in the exercise of jurisdiction and not those which are made in their discretion unless the discretion is found to have been exercised fancifully or arbitrarily. The discretion exercised by the first Appellate Court in this case was neither fanciful nor arbitrary.
8. In view what has been discussed Above, this petition is without any substance and is accordingly dismissed with no order as to costs.