1. ' Facts of this matter are that appellants filed suit for declaration, cancellation of documents, possession and mesne profits before the Senior Civil Judge, Thatta, submitting therein that the plots bearing No,2190(60-6 Sq.Yds), 2200 (270-2 sq. Yds), 2201 (177-7 sq. Yds), 2202' (228-8 sq. Yds) and 2291 (226-6 sq. Yds.) Ward-A, Thatta belonged to Mst. Amnat Bibi widow of Makhdoom Ghulam Muhammad. She was issueless. Her husband Makhdoom Ghulam Muhammad was already married who had one daughter namely Mst. Hussan Bano widow of Abdul Rahim Uqiali from his first wife. Mst. Amnat Bibi was daughter of Makhdoom Muhammad Hashim Sanni from Mst. Habibat Bibi.
2. After the death of Makhdoom Muhammad Hashtni Sattni. Mst. Habiabat Bibi married with Haji Pri Ghulam Rasool Shah Serhandi from whom she had only one son Haji Ahmad Jan who was Uterine brother of Mst. Amnat Bibi from mother side. Mst. Amnat Bibi expired on 18-2-1967 leaving behind Haji Ahmad Jan as her sole legal heir, who also expired after one year of the death of Mst. Amanat Bibi leaving behind as his legal heir. The properties remained in the name of Mst. Amnat Bibi. That when the appellants came to know about their properties they brought their attorney Muhammad Sadiq who submitted application to the concerned authorities for mutation. Their attorney got to '
3. Fatwas' for Ulemas (Mufties) of Thatta and Sujawal and also obtained hariship certificate dated 1- 11-1984 from Mukhtarkar, Thatta. The appellants then applied for mutation of their names in the relevant record of rights and they came to know that the properties in question were mutated in the name of "Dargah Makhdoom Muhammad Hashim Thatvi" in collusion with Respondent No,1 Muhammad Noor, and respondents Nos.2 and 3 illegally and fraudulently. The appellants, therefore, filed the suit. Respondent No,1 submitted his written statement stated therein that the disputed properties originally belonged to Makhdoom Muhammad Hashim Sanni which Mst.
4. Amanat inherited from her father. Mst. Amanat Bibi married with Ghulam Muhammad the nephew of Makhdoom Muhammad Hashim Sanni. Makhdoom Ghulam Muhammad had another wife Mst.
5. Zainab Bibi from whom he had one daughter Mst, Hussan Bano widow of Abdul Rahim Uqaili. That Makhdoom Muhammad Hashim Sanni died in 1315 Hijri and Makhdoom Ghulam Muhammad died in the year 1934. City survey of Thatta Town started in or about 1940. Mst. Amanat and Mst. Hussan Bano were the only legal heirs of deceased Makhdoom Muhammad Hashim Sanni at the time of start/opening of city survey in Thatta Town. Mst. Amnat Bibi being elder and step-mother and Gadi Nashin of Dargah Makhdoom Muhammad Hashim Thatvi as such due to addition and custom only her name was mutated in the City Survey record in or about 1943 and after the death of Mst. Amnat Bibi the disputed properties were inherited by Mst. Hussan Bano as sole legal heir of her ancestors and the properties were in her possession. Respondent No,1 has denied that Mst. Amnat Bibi was married wife of Makhdoom Ghulam Muhammad but has stated that she was married with Makhdoom Ghulam. Ahmad. That 'Fatwas so obtained are one sided. The heirship certificate issued by the Mukhtarkar Thatta is incorrect which was issued on the basis of statements of witnesses namely Muhammad Khamoon who is mad man while Muhammad Suleman Jokhio knew nothing about the legal heirs of Mst. Amnat Bibi. Mst. Hussan Bani was the only surviving legal heir to inherit the properties of her ancestors through Mst. Amnat Bibi and that Mst. Amnat was not the only lawful owner of the disputed properties as the same belonged to her ancertors and not to herself.
6. That Respondent No,1 is only Mutawali of the properties in question as per 'Will' of deceased Mst.
7. Hussan Bano. The disputed plots are open except one old house (haveli of Makhdooms), wherein the respondent No,1 is living and serving the Mureeds of Dargah Makhdoom Muhammad, Hashim Thatvi as Mutawali. The suit properties were legally and rightly mutated in the name of Mst. Hussan Bano and thereafter, as Waqf property of Dargah Makhdoom Muhammad Hashim Thatvi as per registered 'Will' of deceased Mst. Hussan Bano and as per Judgment in Suit No,9 of 1973 dated 19-4- 1982 passed by Senior Civil Judge, Thatta. The appellants are not entitled to inherit the properties.
8. The Respondent No,1 also challenged the maintainability of the suit and stated that the suit is time- barred under section 11, P.P.C., as res judicata. That the value of the disputed properties being more than Rs,1,50,000 as such the same is under-valued. Respondent No,1 prayed for dismissal of the suit.
9. Respondents Nos.2 to 6 did not contest the suit and were declared ex parte vide Order dated 27-2- 1986.
10. ' The trial Court, out of the pleadings of the parties, following issues were framed:
(1) Whether the suit is not maintainable according to law?
(2) Whether suit is time-barred?
(3) Whether this Court has no jurisdiction?
(4) Whether the suit is barred under section 11, P.P.C. As res judicata?
(5) Whether the suit is under valued and in-sufficiently stamped?
(6) Whether Mst. Habibat Bibi widow of Makhdoom Muhammad Hashim Sanni and mother of Mst.
11. Amnat Bibi after the death of Makhdoom Muhammad Hashim Sanni married with Haji Mir Ghulam Rassol Shah Serhandi from whom she had only one son Haji Ahmed Jan and Haji Ahmad Jan is brother of Mst. Amnat Bibi from her mother?
(7) Whether Mst. Hussan Bano was the only sole legal heirs of Mst. Amnat or Haji Ahmad Jan her brother was only sole legal heir of Mst. Amnat Bibi?
(8) Whether Makhdoom Ghulam Ahmad was nephew and son-in-law of Makhdoom Muhammad Hashim Sanni?
(9) Whether Mst. Hussan Bano d/o. Makhdoom Ghulam Ahmad was born from Mst. Zainab Bibi?
(10) Whether the suit property due to tradition and customs was entered in the city survey record in the year 1943 in the name of Mst. Amnat Bibi being elder and Gadi Nasheen of Dargah Muhammad Hashmi Thatvi?
(11) Whether mutations of suit property in city survey record as Waqf property on the basis of Registered will and Judgment dated 19-4-1982 of Mst. Hussan Bano are fraudulent and illegal?
(12) Whether defendant No,1 is not in possession of the suit property as Mutawali?
(13) What should the decree be?
12. ' Both the parties led their evidence and submitted documents in support of their case. The trial Court after considering the material on record and hearing the learned counsel for the parties dismissed the suit vide Judgment/decree dated 21-5-1991. That being aggrieved dissatisfied with the above Judgment/decree the appellants preferred appeal before the 1st Additional District Judge, Thatta, who after hearing the parties dismissed the appeal vide Judgment dated 31-7-1996.
13. Hence this revision.
14. ' I have heard Mr. Ijaz Hussain Malik, Learned counsel for the Appellants and Mr. Muhammad Ali Sayeed, learned counsel for the respondent No,l.
15. ' Mr. Ijaz Hussain Malik contended that learned Appellate Court committed illegality in not framing points for determination and in not deciding memo. No, That Judgment was pronounced on 31-7- 1997 and certified true copy of the Judgment was contained on 7-8-1996 and revision was filed on 4-11-1996 and without loss of time the revision was filed within lawful limits bar of law of limitation is not applicable in the circumstances. That the learned Courts below failed to appreciate the contradictory pleas taken by the respondent No,1 in his written statement. In written statement on one hand he states that Mst. Hussan Bano was the owner of the suit properties of deceased Mst.
16. Amnat Bibi whereas on the other hand he states that it devolved upon Mst. Hussan Bano. That learned trial Court in its Judgment gave weight to the pleadings of Respondent No,1 and relied upon his written statement and over looked the evidence of the plaintiff. The trial Court also relied upon the forged ' Will' which otherwise was void. That the suit of the plaintiff was within time as such the findings of the learned trial Court that it has not jurisdiction faulty one. Even otherwise limitation alone cannot be a ground to deprive the competent Court of law from its inherent jurisdiction. Mr. Ijaz Hussain Malik, learned counsel for the applicants cited 1994 SCMR 833, 1994 CLC 1195 and 1997 SCMR 1140.
17. ' Mr. Muhammad Ali Sayeed, learned counsel for the respondents, contended that the impugned Judgment was announced on 31-7-1996 and copy of the Judgment was delivered on 7-8-1996 whereas the revision application was filed on 4-11-1996 and according to the provisions of section 115, C.P.C., the revision is to be filed within 90 days of the decision of the Subordinate Court, which reads as under: "Provided further that such application shall be made within ninety days of the decision of the Subordinate Court which shall provide of copy of such decision within three days thereof, an the High Court shall dispose such application within six months."
18. ' Learned counsel further referred section 12(2) of the Limitation Act which reads as under: "12. --(1)..................................................................................................................................
(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded."
19. ' That the revision application itself is time-barred and is liable to be dismissed in limine. That the two concurrent findings of the trial Court had First Appellate Court are in favour of the respondents and this Court as required under section 115, C.P.C., has very limited scope so far as the exercise of jurisdiction is concerned. Moreover, the learned Courts below had not committed any material illegality or irregularity in their Judgment and decree. Learned counsel cited PLD 1960 Karachi 795, 1994 SCMR 818, 1994 SCMR 1778, PLD 1983 SC 53, PLD 1994 SC 291, 1997 SCMR 526, 1996 SCMR 813 and 1995 SCMR 559. Learned counsel also relied upon provision of section 96 of C.P.C., which reads as under: "96. Appeal from original decree.--(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court."
20. ' Whereas according to section 100, C.P.C. Which provides as follows:-- "100. Second appeal. Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by a Court subordinate to a High Court on any of the following grounds namely:
(a) the decision being contrary to law or usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possible have produced error or defect in the decision of the case upon the merits."
21. ' In view of the above provisions which are quite clear and section 12(2) of the Limitation Act would be applicable for calculating days in computing period of limitation for obtaining copy of Judgment, sentence or order appealed from and according to section 12(2) of the Limitation Act the word 'revision' is not mentioned and revision in any case is to be filed within 90 days as mentioned hereinabove. That the revision is hopelessly time-barred and is liable to be dismissed in limine.
22. ' Now I would like to discuss the authorities cited by Mr. Ijaz Hussain Malik, learned counsel for the Applicants:
(1) 1994 SCMR 833 Government of N.-W.F.P. Through Chief Secretary and 3 others v. Abdul Malik ' In this authority their lordship of Hon'ble Supreme Court have observed: ' "A civil revision is to be filed within 90 days and in case of delay, the same is to be explained, though while considering the question of delay in filing of a civil revision, the Court will be more liberal as compared to the approach in an application for condonation of delay of the limitation period provided for in the First Schedule to the Limitation Act for any legal proceedings."
23. ' In very authority their lordship have further observed: ' "Though while considering the question of condonation of delay in filing of a civil revision, that Court will not follow the strict rule that the delay of each day is to be explained for condonation of delay of statutory period but, at the same time, every ground of delay cannot be accepted. In the report case, the certified copy of the judgment was delivered to the appellant's counsel, according to the counsel for the appellants, on the very day when an application for certified copy of the same was made. No particulars had been given as to how delay had taken place."
24. ' In this revision also certified true copy of the Judgment and decree has been filed wherein date has been mentioned as 7-8-1996 whereas nothing is mentioned in the application as to when the application was submitted in the Court for getting copy, when fee was deposited and what was the date given by the Court to get the copy. The Judgment and decree was prepared and, compared by some one without mentioning the date as to when the fee was deposited or when the application itself was submitted for obtaining the copy. In any case delay wheresoever has not been explained. Under the circumstances in my humble opinion, this authority is not helpful to the case of the appellants.
(2) 1994 CLC 1195 Muhammad Ishaque v. Administrator (PR) and others.
25. ' In this case Abdul Majid Tiwana, J. Of Hon'ble Lahore High Court, has observed that: ' "Certified copy of the Judgment was supplied to the petitioner on 22-6-1992. Revision filed on 13- 6-1993 was returned under certain objections with the direction for refiling the same within seven days but was actually refiled on 21-9-1993. Interval between 23-6-1992 to 5-5-1993 was sought to be covered with the help of ten medical certificates about the aliment of petitioner. No plausible explanation was furnished for consuming more than three months in refiling the civil revision after removal of objections."
26. ' In the above reported case the revision was dismissed and the learned Judge.Was pleased to issue notice to the concerned Doctor who issued fake certificates about illness of the petitioner for use in the judicial proceedings. I am afraid on the face of it this authority in any case is not relevant, helpful and applicable to the present revision.
(3) 1997 SCMR 1139 Abdul Hakeem v. Habibullah and 11 others ' Brief facts of this case are that the appellant filed suit for declaration in the Court at Qazi Sarawan, alleging that 4 pieces of land bearing Khasra Nos.125 to 128, to 128, situated in Mauza Lavinda, Tehsil Mastung, District Kalat, measuring about 7 acres, 2 Rods and 32 Pales was in his possession as his ancestoral property. That the entires made in the Revenue Record in favour of respondents as the time of preparation of settlement record in respect of suit land had no effect on the title of the appellant. That the respondents filed proceedings against the appellant. That the respondents filed proceedings against the appellant under section 145, Cr.P.C. Before the Assistant Commissioner, Mastung, claiming that the suit land was entered in the Revenue Record in their favour as owner and that the appellant was trying to take over forcible possession of the suit land. That from the proceedings under section 145, Cr.P.C. The appellant for the first time came to know about the existence of entries in the Revenue Record in respect of the suit land in favour of respondents and accordingly, after obtaining the copy of extract from the revenue record filed the suit claiming the reliefs of declaration and correction of Revenue Record. The trial Court after settlement of issues and recording evidence decreed the suit. The Judgment and decree of trial Court was set aside in appeal by Majils-e-Shoora on 12-6-1988 and the case was remanded to the trial Court for a fresh decision in accordance with the law. After remand of the case by Majlis-eShoora to the Court of Qazi, Sarawan, the appellant/plaintiff amended his plaint to which amended written statement was filed by respondents and thereafter fresh issues were settled in the suit by the Qazi. After recording further evidence and hearing the parties, Qazi Sarawan again decreed the suit which was upheld by Majlis-e-Shoora, Kalat by judgment and decree dated 10-9-1990. The respondents challenged the judgment and decree of Majlis-e-Shoora dated 10-9-1990 before the High Court of Balochistan, at Quetta, which was partly allowed and the case was remanded to Majlis-e-Shoora Kalat, for a fresh decision of appeal on merits. The learned Majlis-e-Shoora, Kalat, after remand of the case reheard the appeal and by judgment dated 12-5-1991 dismissed the same. Once again the matter was brought before the High Court of Balochistan, at Quetta, in Civil Revision Application No,128 of 1991 by the respondent. The learned Chief Justice by judgment dated 28-12-1991 accepted the above revision application and after setting aside the judgments and decrees of Qazi Sarawan dated 4-6-1990 and that of Majlis-e-Shoora Kalat, dated 12-5-1991, dismissed the suit instituted by appellant. The appellant preferred appeal before the Hon'ble Supreme Court against the judgment and decree of the High Court dated 28-12-1991 which was allowed on 7-9-1993 and the case was remanded to the High Court for a fresh decision of Civil Revision Application No,128 of 1991 in accordance with the law. After remand of the case by Supreme Court, the learned Chief Justice once again re-affirm his earlier decision and accepted the Civil Revision Application filed by respondents Civil Appeal No,96-Q of 1994 before the Hon'ble Supreme Court and their Lordship of the Supreme Court held that process of examination of the evidence for upsetting a concurrent finding of fact in exercise of powers under section 115, C.P.C., in their Lordship view, is neither permissible nor warranted by law. The interference with a finding of fact by the Courts below by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. Could only be justified if such finding is found to be suffering from misreading of evidence or non-consideration of important and material evidence or the finding is that result of perverse appreciation of evidence on record. A wrong or erroneous conclusion on a question of fact by the courts below is not open to interference by the High Court in exercise of its jurisdiction under section 115, C.P.C. The appeal was accepted. This authority also on the face of it is not relevant and helpful to the case of the appellant.
27. ' Whereas the case law cited by Mr. Muhammad Ali Sayeed, learned counsel for the respondents and provisions of C.P.C. And section 12(2) of the Limitation Act, supports the contention of Mr. Muhammad Ali Sayeed.
28. ' It would be pertinent to refer case of Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1995 SC 291) wherein their Lordship have observed as follows: ' It is well-settled law that a concurrent finding of fact by two Courts below cannot be disturbed by the High Court in Second Civil Appeal much less in exercise of the revisonal jurisdiction under section 115, C.P.C., unless the two Courts below while recording the finding of fact have either misread the evidence or have ignored any material piece of evidence on record or the finding of fact recorded by the two Courts below in perverse."
29. ' I would again like to refer a recently decided decision of their Lordship of Hon'ble Supreme Court in case of Rozi Khan and others v. Nasir and others (1997 SCMR 1849) have observed as follows:- ' "Evidently the scope of revisional jurisdiction is curative and narrower, which can be appropriately invoked where subordinate forums have committed jurisdictional error or misread the evidence or ignored material aspects affecting very root of the case or suggest perversity."
30. The trial Court after considering the evidence and documents, dismissed the suit. The same order was upheld by the First Additional District Judge. The findings of both the Courts are based actually on the evidence of the parties and, therefore, they have not committed any illegality or irregularity.
31. Under the circumstances, the revision being time-barred and without substance/merit is dismissed in limine.
32. ' After hearing of the parties on 20-10-1997 the revision was dismissed by short order. These are the reasons for the same.