' NASIR ASLAM ZAHID, J.---This order will dispose of Civil Petition No,550-L of 1997 filed by Muhammad Tufail and others, and Civil Petition No,701-L of 1997 filed by Muhammad Arif and others, as both these petitions are directed against the common order dated 28-2-1997 of the Lahore High Court dismissing in limine the Civil Revision Petitions of the petitioners and the only point for consideration was whether the petitioners in these two petitions were also legal heirs of one deceased Bagha alongwith the plaintiffs. The trial Court, the appellate Court and the High Court in its revisional jurisdiction have concurrently held that plaintiffs-respondents Noor Muhammad and others were the only legal heirs of deceased Bagha and not the petitioners in these two petitions. We have heard at length the arguments of Ch. Muhammad Rafiq Iqbal, learned Advocate Supreme Court for the petitioners in Civil Petition No,550-L of 1997, Sh. Maqbool Ahmed, learned Advocate Supreme Court for the petitioners in Civil Petition No,710-L of 1997 and Kh. M.
Farooq, learned Senior Advocate Supreme Court for the respondents plaintiffs in both the petitions.
With the assistance of the learned counsel we have gone through the record.
2. Bagha died issueless in 1918 leaving behind him Mst. Fateh Bibi, as the widow. Mst. Fateh Bibi made a gift of a part of the estate left by Bagha measuring about 201 Kanals, 11 Marlas in favour of her nephew Suba (predecessor-in-interest of petitioners Muhammad Arif and others in C.P.
No,701/97) through Mutation No,369 attested on 2-12-1960. These petitioners also claimed to be legal heirs of Bagha as collaterals. Plaintiffs Noor Muhammad and others now represented by Kh.
M.F. Farooq, learned Senior Advocate Supreme Court, claiming to be reversioners of Bagha, filed a suit challenging the said gift being void as against their reversionary rights. However, on the promulgation of West Pakistan Muslim Personal Law Shariat (Application) Act, 1962, the share of Mst. Fateh Bibi as widow having been confirmed as 1/4 in the estate left by Bagha under the Muslim Law of Inheritance, the suit was allowed to be amended and converted into one for declaration, possession and partition. A declaration was sought that the plaintiffs were joint owners to the extent of 3/4th of the lands left by deceased Bagha. As a result of the promulgation of the 1962 Act, lands left by deceased Bagha were entered in the name of plaintiffs to the extent of 3/4th share as reversioners and 1/4th share in the name of Mst. Fateh Bibi as childless widow through Mutation No,406 dated 6-7-1963. Mrs. Fateh Bibi then filed a suit challenging Mutation No,406 claiming to be owner of the total lands. Both the suits were consolidated and disposed of by a common judgment dated 30-3-1965. Trial Court held that the gift made by Fateh Bibi in favour of Suba was void as against the rights of the reversioners and that the lands left by Bagha was jointly owned by Fateh Bibi and reversioners of Bagha in proportion of 1/4 and 3/4. Suit of plaintiffs was, therefore, decreed and Fateh Bibi's suit dismissed. Fateh Bibi and Suba filed an appeal. First Appellate Court concurred with the finding of the trial Court and observed that Fateh Bibi's share (she had died during the pendency of the appeal) would devolve after her death on her heirs. However, as there was some dispute regarding the reversioners, the case was remanded to the trial Court only for the limited purpose of determining the reversioners and their shares. Suba filed a second appeal in the High Court. In the appeal before the High Court, the case of Suba was that on promulgation of the West Pakistan Muslim Personal Shariat (Applications) Act, 1962, limited estates were terminated and 3/4 of the estate had devolved on the legal heirs of Bagha deceased but on his behalf the contention was advanced that the remaining 1/4 share to which Mst. Fateh Bibi as widow and Bagha was entitled on the promulgation of the Shariat law was vested in Suba and alienation to the extent of widow's personal share in the land must be held to be valid. This contention on behalf of Suba was accepted by the High Court in the Second Appeal. According to the High Court, the decree passed by the trial Court only set aside the alienation by way of gift to the extent of 3/4 share in the land in the suit and that the gift was voidable at the option of the reversioner but, as regards the remaining share of 1/4, the alienation was binding on Mst. Fateh Bibi. It was also noted by the High Court that the Appellate Court had substantially confirmed the finding of the trial Court to the effect that the gift in question shall not affect the reversionary interest of the plaintiffs to the extent of 3/4 share but as the Appellate Court was not quite clear about the right of the plaintiffs to succeed to the land as the heirs of deceased Bagha, the Appellate Court remanded the case to the trial Court for further decision in that connection. The High Court then held as follows:-- "On a true interpretation of the decree passed by the two Courts below the alienation in question was voidable at the option of the reversioners of the last male-holder to the extent of their 3/4th share. In the circumstances there is hardly any room for interference with the decree and the fear expressed by the learned counsel for the appellant before me are altogether, unfounded.
6. Subject to this clarification, I find no force in this appeal which is dismissed."
' Against the judgment of the learned Single Judge in Regular Second Appeal L.P.A. Was preferred before a Division Bench of the Lahore Court and the Division Bench of the High Court came to the conclusion that the gift in favour of Suba made by Mst. Fateh Bibi was void and, therefore, Suba was not entitled to get any share in the land on the basis of such a void transaction. The L.P.A. Filed by the legal heirs of Mst. Fateh Bibi was, therefore, allowed and it was held that Suba was not entitled to even 1/4 share of Mst. Fateh Bibi in the suit land. Appeal before this Court against the L.P.A. Judgment of the High Court was dismissed by judgment dated 17-2-1992, reported in 1992 SCM R 1721 (Suba v. Fatima Bibi). Legal heirs of Suba filed a review petition which was allowed by this Court by order dated 5-10-1995, reported in 1996 SCM R 158 (Suba v. Fatima Bibi). It was held that the gift of the suit land in favour of Suba by Mst. Fateh Bibi to the extent of her 1/4 share in the land was correctly found valid by the learned Single Judge of the High Court in the Second Appeal.
The judgment of the L.P.A. Bench of the High Court dated 15-1-1991 was set aside and the judgment of the learned Single Judge of the High Court dated 11-10-1971 in Regular Second Appeal was restored.
3. On remand on the issue of reversioners the trial Court came to the conclusion that Noor Muhammad and others/plaintiffs were the legal heirs of deceased Bagha and their individual shares determined and that petitioners in these two petitions were not his legal heirs. Suit filed by Noor Muhammad and others was, therefore, decreed. Separate appeals filed by the petitioners were dismissed and, as observed, separate revision applications filed by the petitioners have also been dismissed by the impugned common order dated 28-2-1997 of a learned Single Judge of the Lahore High Court.
4. As observed, Bagha died in 1918. His collaterals were Chiragh, Qada, Mohamda, Mouj and Fouj.
According to the concurrent findings of the three Courts, Mouj Mohamda and Fouj, who were the predecessor-in-interest of the petitioners in these two petitions had died in 191Y?, 1908 and 1915 respectively i.e, before the death of Bagha, whereas, at the time of Bagha's death, Chiragh and Qada were alive. Respondents represented by Kh. M. Farooq are the legal heirs of Chiragh and Qada.
' As observed earlier, after the promulgation of West Pakistan Muslim Law Shariat (Application) Act, 1962, Mutation No,406 was made and attested on 6-7-1963. A pedigree table was part of the said mutation. According to this mutation, in the 'jalsa-e-aam', according to the documents presented, Begha owner of the disputed land died in 1918 and, before his death, Fouj, Mouj, and Mohamda died in 1915, 1907 and 1908 respectively and, accordingly their respective heirs were not entitled to inherit the property left by the deceased. It is then mentioned in the entry that, at the time of his death, Bagha's nearest collaterals alive were only Qada son of Baigha and Chiragh son of Elahi Bakhsh and they died in 1945 and 1936 respectively and according to Shariah, the legal heirs of these two persons were entitled to the land left by Bagha to the extent of 3/4 share. As mentioned above respondents represented by Kh. M. Farooq, learned Senior Advocate Supreme Court are the legal heirs of Qada and Chiragh.
5. The operative part of the impugned judgment of the High Court dismissing the revision petition is as follows:-- "The only pedigree-table available is as appended at the end of the Mutation No,406. The petitioners have failed to disprove this argument, the entries therein are corroborated by the death certificate produced by the plaintiffs. The predecessors of the petitioners have died before Bhaga, therefore, were not entitled to inherit from the estate left by Bhaga. The petitioners, who were claiming through them cannot get better rights then their predecessors. The controversy as to the gift of 1/4th in favour of Suba came to end with the decision of the Hon'ble Supreme Court. The only controversy left to be decided was that who were the collaterals. The two Courts below have taken pains to discuss the whole evidence and then decided the issue. The argument that the record was not available is incorrect on the face of it because the petitioners have themselves admitted that the record was found missing during the hearing of the L.P.A. And thereafter the same was reconstructed. The L.P.A. Was decided thereafter. This is not all. The matter went up at the level of the Hon'ble Supreme Court. This was never the case of the petitioners.
7. The petitioners in Civil Revision No, 1379 of 1996 has placed on record interim orders. It is clear therefrom that the appeal was adjourned to 5-3-1996 for arguments on the application and main appeal. The parties sought adjournment and the appeal was adjourned to 13-3-1996 for this purpose again. Thereafter, the appeal was transferred to other Court, the, parties appeared in the transferee Court on 14-3-1996 and the appeal was posted for arguments for 18-3-1996. The arguments were heard and the appeal was dismissed. It is not possible to disbelieve these interim orders. Moreover the allegation remained unsubstantiated in the absence of the affidavit of the learned counsel, who appeared in the appeal.
' The other arguments that the first Appellate Court did not appreciate the controversy and decide the appeal without reference to the facts on record. The argument is again belied by the judgment of the rest appellate Court, and in any case the parties have been eared in accordance with record placed on the files of these revisions themselves. The petitioners have failed to make out a case for interference in the revisional jurisdiction.
8. The upshot of the above discussion is that the revisions are dismissed in limine."
6. Before us, Ch. Muhammad Rafiq Iqbal and Sh. Maqbool Ahmed, learned Advocate Supreme Court for the petitioners in both these petitions reiterated the arguments advanced before the High Court but we find no merit in these arguments which have been rightly rejected by the High Court.
Admittedly, only one pedigree-table was available which was part of Mutation Entry No,406. As observed, according to the said entry predecessor-in-interest A of the petitioners in these two petitions, namely, Mouj, Fouj and Mohamda had died during the life-time of Bagha and, therefore, they were not reversioners of Bagha and the only collaterals in the equal degree to Bagha, who were alive at the time of his death, were Qada and Chiragh, predcessor-in-interest of the respondents represented by Kh. M. Farooq, learned Advocate Supreme Court. The concurrent findings of the Courts below to the effect that the entries in Mutation No,406 were corroborated by the death certificates produced by the plaintiffs has been confirmed by the High Court and no case is made out for interference in the High Court findings.
' The argument about the record being not available has also been rightly rejected by the High Court on the ground that petitioners had themselves admitted that when earlier the record was found missing, during the hearing of the L.P.A., the same was reconstructed and then the L.P.A. Was decided and the matter had come up to this Court also and no such plea was advanced that the record had not been reconstructed.
7. It has also been noted while perusing the record of these petitions that the petitioners in Civil Petition No,550-L of 1997, namely, Muhammad Tufail and others in the memo. Of L.P.A. No,31-C of 1971 filed before the High Court had not challenged Mutation No,406 but had actually relief upon the same. In para. 1(d) in the memo. Of their L.P.A., Muhammad Tufail and others as appellants in that L.P.A. Had averred as follows:-- "That on the operation of Act V of 1962, Mutation No,406, dated 6-7-1963, whereby the entire land of Bagha deceased excepting donated property, was sanctioned in favour of reversioners of Bagha deceased to the extent of 3/4 and 1/4 was left with Fateh Bibi."
' Then in para. 4 of the said L.P.A. Petitioners Muhammad Tufail and others confirmed the authenticity of Mutation No,406 by averring as follows:-- "That the appellants, therefore being legal heirs of Mst. Fateh Bibi are entitled to 1/4th share of the entire property and the same has been the admitted position. Suba respondent did not challenge Mutation No,406 sanctioned on 6-7-1963. It has also been his own case that he was not concerned with the property of Bagha other than the one of which he was donee. Mutation No,406, dated 6-7- 1963 is still intact."
' It has also been observed that Ch. Muhammad Rafiq Iqbal, learned counsel, who has appeared before us on behalf of the petitioners in Civil Petition No,55-L of 1997 was also the counsel of the petitioners in L.P.A. No,31-C of 1971. They cannot challenge the authenticity of Mutation No,406.
8. Ch. Muhammad Rafiq Iqbal as well as Sh. Maqbool Ahmed, learned counsel for the petitioners in both these petitions, have also relied upon heavily on the prayer made in the original plaint by the plaintiffs/respondents represented by Kh. M. Farooq (page 87 of paper book of C.P.No,550-L/97) in which it was mentioned that the plaintiffs alongwith some of the petitioners were the legal heirs of deceased Bagha. Reliance was also placed on the decree, according to which, suit of the plaintiffs was decreed. However, the original judgment dated 30-3-1965 of the trial Court on the basis of which the decree had been prepared (pages 59-65 of paper book of C.P. No,710-L/97) shows that Issue No,4 framed by the trial Court in the first round was "who are the reversioner of deceased Bagha" and the said issue was decided as follows:-- "Issue No,4: The plaintiffs Nur Muhammad, Ali Muhammad, Ghulam Muhammad, Farzand Ali and Baland Ali, Ghulam Muhammad son of Baggoo, Muhammad Sadiq, Jamal Din and Ahmed Din claim to be the reversioners of the deceased Baga. The Patwari Abdus Samad has stated the plaintiffs are the 'Yakjad' of Baga deceased. This factum is not denied by the contesting defendants, and nothing is brought by them on the record the claim, Gulab, Noor Muhammad, Fateh Muhammad, Natha and Chanan Din defendants 5, .6, 7, 8 and 10 respectively are also claimed to be the reversioners of the deceased Baga whose claim also is not conroverted by some positive evidence. So, leaving the females i.e, defendants, 4, 5, 6, 7, 8, and 10 are the reversioners of Baga deceased who have the reversionary rights. The issue is, therefore, decided accordingly."
In any case, as there was some doubt about the reversioners and their shares, the first Appellate Court remanded the case to the trial Court for the limited purpose of determining the reversioners of Bagha and their shares, which exercise was completed on remand by the trial Court and the findings of the trial Court have been confirmed by the appellate Court and the High Court.
9. In the circumstances, we find no merit in these petitions to interfere with the concurrent findings of the 3 Courts. Civil Petition No,550-L and Civil Petition No,701-L of 1997 are, therefore, dismissed and leave is refused.