1. CH. IJAZ AHMAD, J.- The brief facts out of which the present revision petition arises are that the property in dispute measuring 205 kanals I6 marlas situated in Chak No. 16-WB Tehsil Vehari originally belonged to late Sardara who has the following allegedly legal heirs:- Langar died and inheritance Mutation No. 312 was sanctioned in the names of the above mentioned legal heirs of Langar to the extent of shares among the legal heirs as follow:- Mst. Janat BIBI 1/8 share Mst. Sheran BIBI 1/2 share.
2. Raja and Taja 3/8 share.
3. The petitioners being aggrieved by the said mutation filed an appeal before the Collector on the ground that Mst. Janat Bibi was not widow of late Langar and Mst. Sheran Bibi was not the daughter of said -Langar which was dismissed by the Collector vide his order dated 4-8-1960. The petitioner being aggrieved by the order of the Collector filed a second appeal before the Commissioner Multan Division who accepted the same vide his order dated 4-10-1961 arid the case was remanded to the Revenue Officer A.C.II. Subsequently Mutation No. 377 was sanctioned after remand on 19-6-1962 tad the total land was mutated in the names of the present petitioners on the ground that Mst. Janat BIBI and Mst. Sheran BIBI are not the legal heirs of Langar. The Collector sou motu directed the Revenue Officer to review the Mutation No. 377 on 16-3-1964. The Revenue officer after direction of Collector again sanctioned Mutation No. 21 and found that only the petitioners are the legal heirs of late Langar on 16-8-1965. Both the parties did no agitate the matter till 1986! The respondent No. 1 got the copy of the birth certificate on 9-1-1986 in which the entry was that respondent No. 1 is daughter o: Langar. Respondent No. 1 filed suit for declaration on 19-2-1986 to the effect that she is the daughter of the said Langar and is entitled to 1/2 share of the property of late langar before Senior Civil Judge Vehari. Subsequently Mst. Jana Bibi respondent No.2 also filed a suit for declaration to the extent that she is the widow of late Langar and is entitled to 178th share from the property of said langar before the Senior Civil Judge, Vehari. Vide order dated 27-7-1987 both the suits were consolidated by the trial Court. Mst. Janat Bibi filed an application to withdraw the suit which was allowed by the Court vide order dated 11-1-1990. The record further reveals that on 11-4-1990 the learned counsel of Mst. Janat also gave statement to the extent that she had already withdrawn her suit on 11-1-1990. Present petitioners/defendants filed written statement, controverted the allegations levelled in the written statement. Out of the pleadings of the parties the leamed trial Court framed the following issues:-
(1) Whether the Plaintiff has no cause of action? OPD.
(2) Whether the suit is collusive, If so its effect? OPD.
(3) Whether the suit is barred by time11 OPD.
(4) Whether the suit is not maintainable in its present form? OPD.
(5) Whether the plaintiff is estopped on her words and conduct to file this suit? OPD.
(6) Whether the plaintiff is entitled to inherit from the property of Langar deceased and mutations No. 21 dated 16-8-1965, 105 dated 29-8-1979 and registered deed no. 188 dated 5-7-1979 are incorrect against law and facts, void and ineffective qua the rights of the plaintiff and she is further entitled to consequential relief? OPP.
(7) Relief.
4. The leamed Trial Court decreed the suit vide its judgment and decree dated 19-4- 1990 to the extent of respondent No. 1. The petitioners being aggrieved filed the appeal before the District Judge, Vehari who dismissed the same vide his judgment and decree dated 27-4-1994 with the modification that respondent No. 2 is also widow and is entitled to 1/8 share of the property of Langar being widow, hence the present revision petition.
5. During the pendency of the appeal the petitioners filed application for additional evidence before the Additional District Judge which was rejected vide order dated 13-7-1991 by the leamed Appellate Court. The petitioners being aggrieved by the judgment order of the Appellate Court filed revision before this Court which was also dismissed, vide judgment dated 21-9-1991.
2. The leamed counsel for the petitioners contended that Mst. Jannat has withdrawn her suit, therefore, she is not entitled to any share from the property of late Langar. He further contended that the leamed first Appellate Court did not consider this aspect of the case that Mst. Janat is not entitled to any share from the property of Langar on the well known principle of estoppel and waiver. He further argued that since Mst. Janat Bibi has withdrawn her suit, therefore, principle of res- judicata is attracted. He further contended that Mst. Janat has not filed any appeal against the judgment and decree of the trial Court, therefore, first appellate Court wrongly granted relief to respondent No. 2. He further contended that both the Courts below wrongly accepted the evidence of P.W.1 who categorically stated in the cross-examination that certain papers are blank in the Register: There are also cutting on the said page and different inks were used, therefore, judgments of both the Courts below are the result of misreading. He further contended that respondent No. 1 admitted in her cross-examination, that she has solemnized marriage with Haq Nawaz. She did not deny this nikah mama, in which her name was mentioned as Manzooran Bibi daughter of Ali Khan but both the Courts below did not consider this documentary evidence in real perspective therefore, the judgments of both the Courts below are the result of misreading and nonreading of the record. He further contended that both the Courts below wrongly ignored the documentary evidence and accepted the oral evidence. In the presence of the documentary evidence oral evidence has no value. He further contended that both the respondents appeared before the revenue officer in 1965 and the mutation was sanctioned in their presence and they kept silent till 1986, therefore possibility cannot be ruled out that Birth Certificate was procured by respondent No. 1 fraudulently, and subsequently she filed suit for declaration but both the Courts below did not consider this aspect of the case. He further stated that statement of PW-3 was not properly appreciated by both the Courts below as PW.3 stated in cross-examination that he did not know the name of the previous husband of Mst. Janat and same objection was raised regarding the statement of PW.4. He further contended that the petitioners produced DW.1 Muhammad Afzal and DW.2 Bashir Lumberdar who had no enmity with the respondents who gave statements against them but both the Courts below did not consider this aspect of the case, therefore, judgments of both the Courts below are the result of mis-reading. He further argued that the petitioners have filed C.M. No. 1-95, C.M. No. 195/95, C.M. No. 186/96 and C.M. No. 197/95 for additional evidence and this Court cannot refuse additional evidence by virtue of Article 2-A of the Constitution as the technicalities can be avoided in the interest of justice. He relied upon 1992 SCM R 1778, PLD 1989 SC 112, PLD 1993 SC 336 and PLD 1993 SC 418.
3. The leamed counsel for the respondents raised a preliminary objection that the revision petition has already been disposed of by order dated 13-3-1996. The leamed counsel for the petitioners in rebuttal contended that order dated 13-3- 1996 shall be read with order dated 11-2-1996 and order dated 28-2-1996. I have examined the prayer in C.M. No. 133-C-96 which was to the extent for partition of the property before the Revenue Officer keeping in view the contents of the application, the order dated 13-3-1996 to the extent that the mair revision petition is disposed of has no value.
6. Even otherwise it is well-known principle of law that no body can be prejudiced by the act of the Court. He relied upon PLD 1975 Lahore 7. When the leamed counsel for the respondents were confronted with this situation they conceded that the revision petition is still pending adjudication.
7. The leamed counsel for the respondent No.1 contended that both the Courts below concurrently decided against the present petitioner, therefore, revision petition is not maintainable. He relied upon 1989 SCM R 450, 1989 SGMR 1491, 1988 SCM R 451 and 1988 SCM R 234. He further contended that in the written statement the petitioners did not mention a single word about the Birth Certificate, therefore, the leamed counsel for the petition cannot agitate- this plea at this stagey He further contended that in the earlier round of litigation Mutation No. 21 was rejected on the affidavit of respondent No.2 which was not proved otherwise the family tree was mentioned in that which Was not found wrong, but the leamed Revenue Officer rejected the same on the basis of the affidavit in which they surrendered their rights in favour of the petitioner. He further contended that she was at the time of mutation 8 years old and her nikah was solemnized at the age of l2 years, therefore, under the influence of the petitioners Raja and Taja, therefore, contents of the nikah nama should not be considered at this stage against the respondents. He further contended that she was illiterate lady and this fact duly proved that she has affixed the thumb impression on the nikah nama and she did n6t know the contents of the nikah nama. The leamed counsel of the respondent No.2 adopted the arguments of respondent No.1 and relied upon order 4 rule 33 CPC that the Court has ample powers to grant the relief to respondent No.2. He relied upon PLD 1991 SC
218. The learned counsel for the petitioners in rebuttal stated that the contents of the written statement has borne out that the petitioners did not accept respondents as legal heirs of late Langar. He further contended that the respondent No.1 did not mention a single word about Birth Certificate in her plaints therefore, question of not mentioning any word in the written statement.
8. Does not arise, therefore, the contention of the leamed counsel for the respondents has no force.
9. He further contended that the petitioners belong to Otak No 16/WB Vehari whereas the nikah of respondent No. 1 was solemnized in Kabir Wala and they have no connection whatsoever with respondent No.1, so question of nikah nama registered under the influence of the petitioners does not arise.
10. I have given my anxious consideration to the contentions of the leamed counsel for the parties. I intend to decide C.M. Nos. l-C/94, 194-C/9.7, 195-C/95, 186-C/95 and C.M. No. 197-C/95. It is admitted fact' that the petitioners have filed application for producing additional evidence before the learned Addl. District Judge which was dismissed by the leamed Addl. District Judge v;V?" order dated 13- 7-1991. Subsequently the petitioners being aggrieved filed revision petition before this Court which was also dismissed vide judgment dated 21-9-1991 meaning thereby the order of the leamed Addl. District Judge was finally decided between the parties and the petitioners did not agitate the same before the Hon'ble Supreme Court therefore, petitioners cannot agitate the same relief at this stage on the well known principle of readjudicate based on Section 11 of the CPC. I am fortified by the judgments of the High Court reported as PLD 1987 SC 145.
11. The judgments cited by the learned counsel for the petitioners 1992 SGMR 1778, PLD 1978 SC 112, PLD 1993 SC 336 and PLD 1993 SC 418 are distinguishable on facts and law. In all those cases the request was made first time at the revisional stage which was rejected and the Hon'ble SC laid down a principle that, the request of the aggrieved person must be considered under Section 151 CPC but in the present case the facts are entirely different. The petitioners have agitated the matter ' before this Court in the earlier round of litigation, therefore, the same is final on the basis of principle of readjudicate. In view of these circumstances I dismiss all the C.Ms. It is admitted fact that both the Courts below concurrently gave finding of fact against the petitioners after proper appreciation of the evidence on issue No.6 which is material between the parties. The learned first appellate Court after appreciation of evidence on record gave its finding to the following effect:- "From the foregoing reasons and discussions, I have come to the conclusion that Mst. Janat Bibi is the widow of Langar deceased and Mst. Sheran Bibi respondent No.1 is his daughter. The revenue officer at the time of attestation of the impugned Mutation No.21 dated 16-8- 1965 illegally deprived them from their law .Share. The subsequent stemlike Mutation No.105 dated 29-8-1979 on the basis of registered sale deed dated 5-7-1979 is also illegal. It is held that Mst. Sheran Bibi respondent No.1 is entitled to get the land in accordance with her legal share. Similarly Mst. Janat Bibi is also entitled to get her legal share from the land of Langar deceased as widow. The leamed lower Court rightly decided issue No.6, as such findings of the leamed lower Court are hereby maintained."
12. I have examined the record myself with the assistance of the leamed counsel for the parties. The learned counsel for the petitioners did not point out any piece of evidence which was mis-read or non-read by both the Courts below. As mentioned above both the Courts below minutely examined the record and after proper appreciation of the evidence on record gave concurrent finding of fact against the present petitioners and in favour of the respondents to the extent that respondents No. 1 and 2 are daughter and wife of the late Langar whose inheritance is in dispute between the parties. It is admitted fact that PW.2. Niaz Muhammad, Officer Kanoongo produced the original register of mutation No.21 dated 16-8-1965 in- which Shajra Nasab1 of Langar was shown by the Revenue Officer showing Mst. Sheran Bibi as his daughter and Mst. Janat Bibi as his widow.
13. This piece of evidence changed the whole completion of the case and destroyed the arguments of the petitioners that the Birth Certificate was obtained by respondent No.1 in 1986 and nikah was solemnized by the respondent No.1 with Haq Nawaz. According to Aax Shajra admitted by PW.2 in 1965 the respondents 1 and 2 have no protection by any male member, therefore, findings of both the Courts below after proper appreciation of evidence can currently gave finding of fact against the petitioners and in favour of respondent No.1 and 2, that they are legal heir of late Langar. The Hon'ble Supreme Court has considered this aspect in Ghulam Ali's case PLD 1990 SC 1 and the relevant observation is as follows:- "The main points of the controversy in this behalf get resolved on the touchstone of Islamic Law of Inheritance. As soon as an owner dies, succession to his property opens. There is no State intervention or clergy's intervention needed for the passing of the title immediately, to the heirs.
14. Thus it is obvious that a Muslim's estates legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the estate by an intermediary is unknown to Islamic Law of Inheritance as compared to other systems. Thus there being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction. It is so notwithstanding whether they (the heirs) like it, want it, abhor it, or shun it. It is the public policy of Islamic law. It is only When the property has thus vested in the heir after the succession opens, that he or she can alienate it in a lawful manner. There is enough coferment and case-law on this point which stands accepted."
15. This proposition was again considered by the Hon'ble Supreme Court in Nazir Ahmad's case 1997 SCM R 281 and relevant observation is as follows:- "We may also observe that the cases which involve inheritance inter se among the legal heirs, the Courts should make efforts to ensure that no legal heir is denied of his legal share in the estate of the deceased concerned on a technical ground. The above approach will also be in consonance with the Injunctions of Islam."
16. In view of the principle laid down by the Hon'ble Supreme Court of Pakistan the judgments of both the Courts below are in accordance with the Injunctions of Islam and principle laid down by the Hon'ble Supreme Court of Pakistan. Since the respondent No.2 was also party in the proceedings, therefore, inspite of the fact that respondent No.2 has withdrawn her suit principle of readjudicate is not attracted and she is not debarred to take share form the estate of late Langar once she was declared legal heir of late Langar on such technicalities. The first appellate Court has ample power to grant relief to respondent No. 2 Mst. Janat Bibi on the basis of Order 41 Rule 33 read with Section 151 CPC. I am also fortified by the judgment of the Hob'ble Supreme Court reported as (PLD 1991 SC 218) Ghulam Hussain's case, and "Muhammad Aslant Rashid v. Dr. Muhammad Anwar Saeed" (1997 CLC 2012) and the relevant observation is as follows:- "This objection can be considered on presuming that if no appeal has at all been filed against respondent No.2 then what would be the consequences. In this behalf Order XL1, rule 33 CPC would come into play, according to which, Appellate Court is empowered to pass order/decree, as the case may require and this power can be exercised by the Court, notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.
17. Therefore, challenging the decree as a whole even impleading respondent No.2 against whom no decree was passed, would not be fatal. Even otherwise no adverse order or decree is being claimed in the instant proceedings by appellants against her, therefore, no prejudice in likely to cause to her, if the appeal is allowed. Contrary to it, she would be benefited, because the property which is now being claimed exclusive by respondent No.1 would also devolve to the extent of her share, which of course the respondent No.2 would be free to transfer in favour of respondent No.1, if so desired by her. Thus, we are inclined to hold-that appeal would not fail on the objection raised by learned counsel. "
18. Both the Courts below have concurrently given findings of fact against the petitioners while exercising jurisdiction under Section 115 CPC. This Court has very limited jurisdiction to disturb the concurrent findings of fact of both the Courts below until and unless the same are result of misreading or non-reading. The leamed counsel for the petitioners failed to point out any piece of evidence which was misread or non-read by both the Courts below.
19. In view of what has been discussed above, the revision petition is dismissed with no order as to costs.