' One Sara Khan son of Sharif had landed property measuring 53 Kanals in village Sheikh Jana, Tehsil and District Swabi. Said Sara Khan at some stage during his life time disappeared from the village and no one knew his whereabouts till the year 1989 when Ayaz son of Saadat along with six others filed a suit in the Court of Senior Civil Judge, Swabi against Siyar son of Saadat and four others for declaring them along with defendant No,1 only as owners in possession of the suit land being legal heirs of Sara Khan whose whereabouts for the last sixty years could not be traced. They also prayed for attestation of the rejected Mutation No,13912 in favour of plaintiffs and defendant No, 1 . During the pendency of the suit, one Mst. Sabz Pan (claiming to be the daughter of Mst.
Zulekha, who was allegedly the wife of Sara Khan had contracted marriage with her father Faizullah after the disappearance of Sara Khan) filed an application for impleadment and claimed her Shari shares in the legacy of Sara Khan.
2. The learned trial Judge framed as many as ten issues in the case and after recording evidence of both the parties came to the conclusion that only plaintiff No,1 (Ayaz) and defendant No,1 (Siyar), both sons of Saadat were entitled to the legacy of Sara Khan in equal shares being his legal heirs and accordingly decreed the suit in favour of plaintiff No,1 and defendant No,1 vide judgment/decree dated 25-11-1991.
3. Out of the defendants only defendants Nos.2 and 3 namely Sher Zaman son of Azam and Gul Jamal son of Muntazim challenged the abovesaid decree by filing an appeal before the District Judge Swabi, but the learned Appellate Court vide judgment/decree dated 7-7-1993 dismissed the appeal and upheld the findings of the learned trial Judge.
4. Sher Zaman and Gul Jamal still not content with the judgments and decrees of the learned Courts below have filed the instant revision petition which was admitted to regular hearing on 21- 12-1993 on the ground of misreading of evidence by the Courts below. During the pendency of the revision petition, respondent No,14 (Siyar Khan) and respondent No,16 (Mst. Sabz Pari) died, whose legal heirs were accordingly brought on the record of this case.
5. I have heard the arguments of Mr. Muhammad Aman Khan, Advocate for the petitioners, Mr. Tajuddin Khan, Advocate, counsel for respondents Nos.l to 7 and 14, Mr.M. Ismail Khan, Advocate counsel for respondents Nos.8 to 12, Mr. Ghulam Naciashband Khan, Advocate, counsel for the legal heirs of deceased respondent No,16 and have also perused the record of the case.
6. Learned counsel for the petitioners as well as respondents Nos.8 to 12 and 16 addressed lengthy arguments, but the gist of their arguments is that the petitioner were the sons of Shakkar, who was first cousin of Sara Khan, and, therefore, they were entitled to their Shari share in the legacy of Sara Khan that the wording of para. 2 of the plaint that:- {{URDU TEXT}} clearly shows that said Sara Khan died sixty years back whereas Exh.P.W.1/3 and Exh.P.W/1/10 (Jamabandies for the years 1935-36 and 1970-71 respectively) indicates that Muntazim and Azam, fathers of the petitioners, were alive till the recording of said Jamabandies and if the averment in the plaint is taken to be correct, then at the time of death of Sara Khan the fathers of the petitioners being alive were entitled to their shares in the inheritance of Sara Khan; that the legal heirs of Sher Dil Khan (respondents Nos.8 to 12 herein) were also entitled to their shares in the disputed property for the reason that Sher Dil Khan being the cousin of Sara Khan was also alive at the time of death of Sara Khan; and that Mst. Sabz Pari was admittedly the daughter of Mst. Zulekha, who was legally wedded wife of deceased Sara Khan and after the death of Sara Khan/his disappearance she became in the 'Nikah' of one Faizullah and from the said wedlock Mst. Sabz Pari was born; that this fact is clear from Mutation No,I3912 entered on 8-3-1981 that in the said Mutation Mst. Zulekha was shown as wife of deceased Sara Khan; that Nowsherawan son of Mst. Sabz Pari in the evidence deposed that Sabz Pari is the daughter of Zulekha and Faizullah, and therefore, the learned Courts below have misread some important evidence in the case.
7. In reply, the learned counsel appearing for respondents Nos.1 to 7 and 14 stated that the whereabouts of Sara Khan were not known for the last sixty years and as all the witnesses produced either by the plaintiffs or the defendants have showed their ignorance about the actual date of death, and therefore, the date of death of Sara Khan will be reckoned from the date of institution of the suit; that Muntazim and Azam, fathers of the petitioners, died much before the filing of the suit; that no cogent evidence is brought on record by respondent No,16 to show the alleged factum of 'Nikah' of her mother with deceased Sara Khan; and that she claimed inheritance in the estate of Sara Khan only on the basis of hearsay evidence. He further argued that the petitioners in their written statement have neither claimed the property in dispute as legal heirs of Sara Khan, but have only taken the plea of adverse possession.
8. Perusal of the record shows that Saadat (father of respondents Nos.1 and 14 herein) and Shakkar (grandfather of the petitioners) were brother inter se. The names of the fathers of the petitioners appear only in the Jamabandi for the year 1935-36 where after in the Jamabandi for the year 1939- 40 the names of their sons (petitioners) have been mentioned. The inheritance mutation of Muntazim was attested on 21-8-1961 whereas the inheritance mutation of Mawaz (father of respondent No,13 herein) was attested on 12-8-1961. Sher Zaman petitioner appeared as D.W.3 and in his statement has deposed that Muntazim and Azam both died about fifteen years back. From the above admitted facts it can be said that at the time of institution of the suit neither father of the petitioners nor father of respondent No,13 were alive. So far as the question of exact date of death of Sara Khan is concerned, it may be stated that according to the averments of the plaint Sara Khan left the village sixty years back and no one heard about him. Thus, presumably he died some-where during the period of his disappearance from the village. The evidence on record do not give any exact date of death of Sara Khan. In this respect the authority reported as 'Mst. Khaki Begum v. Amir Ali Khan PLD 1982 Azad J&K 59 can be cited with advantage. The relevant citation of the said judgment runs as under:-- "Evidence Act (1 of 1872), Ss. 107 & 108--Burden of proving death of person-- not heard of over period of seven years---Sole heir (sister) of such person filing suit for possession of land belonging to him---Held, , death of such person to be legally presumed on date of institution of suit and not prior to it at any particular time."
' The date of death of Sara Khan would, therefore, be reckoned from the date of institution of the suit and as stated earlier at the time of institution of the suit the fathers of the petitioners were not alive.
9. Ayaz, plaintiff No,1 (now represented by his legal heirs respondents Nos.1 to 7) and respondent No,14 (now represented by respondents (i) to (vi) were sons of the first cousin of Sara Khan whereas the petitioners are the sons of Muntazim and Azam whose father was another cousin of Sara Khan. Thus, the fathers of the petitioners were not alive at the time of institution of the suit and the findings of the two Courts below in this respect that they were not entitled to any share in the legacy of Sara Khan, admittedly suffers from no legal infirmity. Even otherwise the petitioners in their written statement before the trial Court have never asked for shares in the legacy of Sara Khan on the basis of their heir ship but have only pleaded adverse possession over the suit property for more than twelve years. By now it is well-settled that at the revisional stage no A new plea can be taken. On this point the observation of this Court in the case of Mir Ahmad and another v. Fazal Elahi and another 1995 M LD 1583 is worth reliance:-- "Defendants failure to take plea in written statement that plaintiff was not the son of pre-deceased daughter of porosities-such plea could not be taken afterwards at revisional stage nor evidence to that effect could be allowed to be led before High Court... ... ..."
' So, on this score too the claim of the petitioners is not entertain able at the revisional stage.
10. I also find no irregularity or illegality in the findings of the learned Courts below to the effect that Mst. Zulekhan has failed to establish her claim by producing any cogent evidence. No doubt, the mutation of inheritance was having the name of Mst. Sabz Pari as widow of Sara Khan but the broad fact remains that the said mutation was later on rejected by the Revenue Authorities and against such rejection no appeal or revision has been preferred by Mst. Zulekha or her legal heirs.
Moreover, the trial Court as well as the appellate Court both made adverse findings in its judgments against Mst. Zulekha but she never questioned such findings either by way of filing an appeal or revision.
11. The learned Court below have properly appreciated the evidence on record and I find no material irregularity or illegality in the impugned judgments/decrees which are based on proper and correct appraisal of the evidence on record. Similarly the concurrent findings of facts arrived at by the two Courts below are also not open to any exception in the revisional jurisdiction of this Court. Resultantly, this revision petition is dismissed with no order as to cost.