' The petitioner/plaintiff has assailed/ challenged the judgment and decree dated 7-12-1994 passed by the learned Additional District Judge, Kasur, reversing the judgment and decree dated 24-5-1994 passed in his favour by the learned Civil Judge Kasur.
2. Succinctly stated the facts are that plaintiff/petitioner Rehmat Khan claims himself to be son of Akay Singh, an, elder brother of Phullu, father of Cheetar Khan deceased, and husband of Mst. Mauj Bibi defendant/respondent. On the death of Cheetar Khan deceased, a mutation of his inheritance No,1179 dated 9-6-1983 was got sanctioned by Rehmat Khan, whereby 1/4th share of the deceased estate devolved upon his widow and remaining 3/4th share devolved upon Rehmat Khan. Mst.
Mauj Bibi filed an appeal against order dated 9-6-1983 which was dismissed by the Assistant Commissioner/Assistant Collector Kasur vide order dated 26-12-1984. She then filed a Review Petition, which was accepted vide order dated 23-4-1985. Then Rehmat Khan filed an appeal against order dated 23-4-1985 with the Additional Commissioner who accepted the same vide order dated 2-11-1986 and set aside the order dated 23-4-1985. Mst. Mauj Bibi then again filed a revision petition assailing the order dated 2-11-1986 with the Member, Board of Revenue, Punjab, Lahore, which was accepted vide order dated 22-1-1990 and the case was remanded to the Assistant Collector Grade-II with a direction to decide the matter afresh. Accordingly, the Assistant Collector Grade II passed a detailed order dated 28-3-1990 and directed the Tehsildar to review mutation No,1179 dated 9-6-1983 in the light of his findings. Consequently, mutation No, 1826 dated 5-8-1990 was entered and sanctioned whereby Mst. Mauj Bibi was granted the entire estate of Cheetar Khan being his sole heir and the plaintiff/petitioner (Rehmat Khan) was deprived of the inheritance of the deceased.
3. Feeling aggrieved of mutation No,1826, dated 5-6-1990, the plaintiff/ petitioner filed a suit for declaration, wherein he challenged the order dated 28-3-1990 passed by the Assistant Collector Grade II as well as order dated 5-6-1990 referred above. Contention raised in the plaint is that Rehmat Khan being son of Akay Singh, is entitled to the inheritance of Cheetar Khan as he was the son of Phullu, an elder brother of Cheetar Khan. The defendant/respondent Mst. Mauj Bibi contested the suit and raised various preliminary objections and controverted the stand of the plaintiff/petitioner. The other defendants/respondents also supported the stand of Mst. Mauj Bibi.
They prayed that suit be dismissed.
4. Divergent pleadings of the parties gave birth to the following issues:
(1) Whether the suit is mala fide? OPD.
(2) Whether the suit is not maintainable in its present form? OPD.
(3) Whether the suit is hit under %colon 11, C.P.C.? OPD.
(4) Whether the plaintiff has no cause of action? OPD.
(5) Whether the suit is bad due to misjoinder of parties and non-joinder for necessary parties? OPD.
(6) Whether the suit has been incorrectly valued for the purposes of court-fee and the jurisdiction?
If so, what is the correct valuation? OPD.
(7) Whether the defendant is entitled for special costs under section 35-A C.P.C.? OPD.
(8) Whether the plaintiff is the legal heir of Cheetar Khan deceased and as such is entitled to inherit 3/4th share from the suit property? OPP.
(9) Whether the impugned mutation No,1826, dated 5-6-1990 is illegal, void ab initio without lawful authority as such is not effective against the right of the plaintiff? OPP.
(10) If the above Issues Nos.8 and 9 are proved in affirmative, then whether the plaintiff is owner in possession up to the extent of 3/4th share in the suit land? OPP.
(11) Relief.
5. In support of his stand. The plaintiff/ petitioner examined Nabi Khan P.W.1, Ismail P.W.2, Abdul Wahab P.W.4, Muhammad Saghir P.W.5 and recorded his own statement as P.W.3. He also brought on record documents Exhs.P.1 to P.7 and thereafter closed his evidence. In rebuttal, defendant/ respondent No,1 examined Jama Khan D. W.1, Sardar Khan D.W.2 and Shehtab Khan D. W.3 and recorded her own statement as D.W.4. She also brought on record documents Exhs.D.l to D.5 and thereafter closed her evidence.
6. After going through the evidence produced by the parties, the trial Court decreed the suit of the plaintiff vide judgment and decree dated 24-5-1994. Having felt aggrieved of the said judgment and decree, defendant/respondent No,1 filed an appeal which was accepted by the learned Additional District Judge Kasur vide judgment and decree dated 7-12-1994. Hence the instant civil revision.
7. Arguments have been heard and record perused.
8. Contention of the learned counsel for the plaintiff/petitioner is that he has been non-suited by the Appellate Court on the ground that he failed to prove that he was cousin of the deceased and as such was not entitled to inherit out of his estate, that this finding is not based on correct appraisal of evidence brought on record, that plaintiff/petitioner has established through oral as well as documentary evidence that he was son of Akay Singh, who was elder brother of Phullu, father of Cheetar Khan deceased, that pedigree-table Exh.P.2 issued by the Central Record Room, Board of Revenue, Lahore proves his assertion, that even the statements of P.Ws.1 to 5 also prove that he was son of Akay Singh, who was elder brother of Phullu, father of Cheetar Khan deceased, that even documents Exhs.P.1 to P.7 also corroborate his contention, that he being cousin of the deceased is entitled to 3/4th share and Mst. Mauj Bibi is entitled to inherit 1/4th share out of the estate of the deceased.
9. Conversely, judgment under revision has been supported ,by learned counsel for defendant/respondent Mst. Mauj Bibi. He referred to the contradictions in the statements of Ismail P.W.2 and Rehmat Khan P.W.3 and submitted that according to Ismail P.W.2, Rehmat Khan had inherited the property from his father Akay Singh whereas this fact stands denied and controverted by Rehmat Khan P.W.3, that the denial on his part also gives a fatal blow to his case and makes his stand full of doubt, that there is no evidence on record to prove if Akay Singh owned any property, as such the question of inheriting any land by the plaintiff/petitioner does not arise, that much stress has been laid down on pedigree-table Exh.P.2 whereby an abortive effort has been made to prove that the deceased was brother of Akay Singh, that a perusal of Exh.P.2 clearly reveals that both Akay Singh and Phullu are not related to each other and are not out of one common ancestor, that the appellate Court's judgment does not suffer from any misreading or non-reading of evidence, as such the same does not call for any interference. He further submitted that erroneous decisions of fact, however, are not revisable except in cases where decision is 'based on no evidence or inadmissible evidence or is so perverse that grave injustice would result therefrom and relied upon Haji Muhammad Zaman v. Zafar Ali Khan and others (PLD 1986 SC 88). He further submitted that error in decision of subordinate Court does not by itself involve that said Court acted illegally or with material irregularity so as to justify interference in revision and relied upon Malik Faiz Alam v. Malik Muhammad Arshad Khan and another (PLD 1986 SC (AJ&K) 65). He further contended that findings of facts recorded by first appellate Court are final and binding and cannot be interfered with merely on the basis of same being based on an incorrect appreciation of evidence and has placed reliance upon Hafiz Muhammad Hussain and another v. Abbas Khan and another (1981 SCM R 1233). He, thus, submitted that there is no force in the civil revision and the same be, dismissed.
10. The only moot point is if the plaintiff/petitioner has succeeded in proving his relationship with Cheetar Khan deceased who is admittedly husband of Mst. Mauj Bibi. There is no doubt that initially vide mutation No,1179, dated 9-6-1983, he was given 3/4th share out of the estate left by Cheetar Khan. The matter went upto the level of Member (Judicial II) Board of Revenue, who vide order dated 22-1-1990 remanded the case to Assistant Collector Grade II to decide the same afresh. The Assistant Collector Grade II heard the parties and vide order dated 28-3-1990 held that Mst. Mauj Bibi was the only heir of deceased Cheetar Khan and directed the Tehsildar to decide the mutation in accordance with law. Accordingly, mutation No,1826, dated 5-6-1990 was sanctioned in favour of Mst. Mauj Bibi, whereby entire estate of the deceased was given to her to the exclusion of Rehmat Khan. Admittedly, Rehmat Khan did not challenge mutation No,1826, dated 5-6-1990 before the higher revenue authorities provided under the Land Revenue Act, but chose to knock at door of the civil Courts and accordingly filed the instant suit which was decreed in his favour by the trial Court, which judgment was reversed by the appellate Court. To prove his contention that he is son of Alcay Singh, a brother of Phullu, father of Cheetar Khan deceased, he has brought on record copy of pedigree-table Exh.P.2. A perusal of this pedigree-table shows that names of six persons have been mentioned in one sequence. It is not evident from the contents of pedigree-table Exh.P.2 if the said six persons stand connected with one another and had one common ancestor. Realising this defect in the pedigree-table he tried to prove the same through oral evidence and examined as many as 5 P.Ws. The evidence of P.W.2 and P.W.3 is only relevant, as other P.Ws. Have simply tried to r corroborate their statements. It has been deposed by P.W.2 that Rehmat Khan had inherited the property from his father Akay Singh, whereas this fact stands denied by Rehmat Khan. This denial on the part of Rehmat Khan raises an adverse presumption against the plaintiff/petitioner. This denial raises a presumption that either Rehmat Khan is not son of Akay Singh or Akay Singh was net related to Phullu. In either way it does not advance the cause of plaintiff/petitioner.
11. The jurisdiction of a Court while hearing a revision petition is purely discretionary and is to be exercised upon the same principles upon which such discretionary orders are made. A discretionary order should only be made where it is called for in the ends of justice and not otherwise. This view prevailed in Srinibash Mukhopadhaya and another v. Elahi Haldar and others (PLD 1959 Dacca 143). It was found in that ease:- "The jurisdiction under section 115, Civil Procedure Code is purely discretionary and is to be exercised upon the same general principles upon which such discretionary orders are made. A discretionary order should only be made where it is called for in the ends of justice and not otherwise. The restoration of an order which is clearly illegal is not desirable either in the ends of justice or upon any other sound judicial principle:"
12. It is also settled law that an order passed by a subordinate Court can only be interfered with in exercise of revisional jurisdiction, if in the opinion of the High Court such Court, (1) has exercised or assumed the jurisdiction not vested in it by law; or (2) has failed to exercise or decline to assume the jurisdiction vested in it by law; or (3) while exercising its discretion has taken a procedural step which is contrary to the mandatory provisions of law or has omitted to take a procedural step, which is required by a mandatory provision of law to be taken; or (4) while exercising its jurisdiction has taken a procedural step which is contrary to the directory provisions or general principle of law and which, in the final result, has given to one party an advantage over the other which it would not have got but for the fact that the step/steps visualized above was/were taken.
13. It is pertinent to point out that the main contention of learned counsel for the petitioner is that finding recorded on Issue No,8 was not within "quite according to the correct apprecision of the record". In other words, the petitioner was criticising the precision of evidence made by the learned Additional District Judge. Since, however, findings of fact recorded by the first appellate Court are final and binding and the same cannot be interfered with merely on the basis that the .Same are based on an incorrect apprecision of the evidence, this Court cannot interfere with the said findings. Reliance is placed on Hafiz Muhammad Hussain and another v. Abbas Khan and another (1981 SCM R 1233). A similar view has also been taken in Haji Muhammad Zaman v. Zafar Ali Khan and others (PLD 1986 SC 88), where it has been held that erroneous decision of fact, however, not revisable, except in cases, where decision is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result therefrom.
14. Be that as it may, section 115 of the Civil Procedure Code applies to cases, involving illegal assumption, non-exercise or irregular exercise of jurisdiction. It cannot be invoked against conclusions of law or fact, which do not, in any way, effect the jurisdiction of this Court; no matter, however, erroneous, wrong or perverse, the decision might be either on a question of fact unless the decision involves a matter of jurisdiction. As erroneous conclusion of law or fact is liable to be corrected in appeal, but revision will not be competent on such a ground, unless in arriving at such conclusion, an error of law is manifestly shown to have been committed.
15. Neither any such aspect has been put forth or highlighted, nor is seemingly available, so as, to attract or entail provisions of section 115, Civil Procedure Code, which thus, can, neither, come into play nor press into service. Judgment and decree, now sought to be impeached and set at naught is accordingly, unexceptionable as the same neither appears to suffer from any infirmity or any irregularity, what to speak of material irregularity, nor perversity or arbitrariness.
16. Hence viewed from any angle, revision petition merits dismissal and is, hereby dismissed, with no order as to costs.