Judgment, dated 11-4-2000 passed by the Additional District Judge, Shorkot whereby the appeal filed by the appellants was dismissed and the judgment of the learned trial Court was affirmed has been challenged through this Second Appeal.
2. Mst. Umey Kalsoom and others plaintiffs respondents filed a declaratory suit with possession being daughters of late Muhammad Aqil, the predecessor-in-interest of the parties. It was their case that they were entitled to inherit the left-over of their deer father i.e. The agricultural land situated in Tehsil Shorkot and Tehsil Mang as also the residential property. The subject-matter of the suit has been mentioned in the plaint. They accordingly challenged Mutation of inheritance No.322 dated 20-12-1952 and subsequent mutations adversely affecting their rights and interest.
The suit was contested by the appellants/defendants. Number of issues were framed by the learned trial Court. Parties produced evidence in support of their respective pleas. On consideration of the evidence, so having brought on record, the suit was decreed by the learned trial Court vide judgment, dated 22-2-1993 in favour of plaintiffs Nos. 1, 2, 4 and 5 to the extent of 4/13th share .In the property of late Muhammad Aqil. Since Mst. Ghulam Fatima plaintiff No. 3 had relinquished her share, the suit to her extent was dismissed by the learned trial Court in view of her statement made on 19-1-1993 before the trial Court. An appeal was filed there against by the appellants when a learned Additional District Judge, Shorkot remanded the matter to the learned trial Court for the reasons that statements of witnesses had not been recorded on proper oath, in view of judgment of this Court reported as 1991 M LD 48. This was done vide order dated 20-11-1995.
3. While the matter was pending before the learned trial Court,, the abovementioned reported judgment was re-considered and a different view was taken in C.R. No.2312 of 1996. Accordingly the learned counsel for the parties made statement before the learned trial Court on 23-11-1996. It was observed by the learned trial Court that appeal filed by the defendants shall be deemed to be pending with the appellate Court where the parties could appear. The appeal was then taken up by the learned Additional District Judge, before whom legal representative of Mat. Aziz Mai plaintiff No.5 also are stated to have withdrawn from the suit. It was then heard by the learned Additional District Judge, who dismissed the same vide judgment dated 11-4-2000.
4. It is contended by the learned counsel for the appellants that the learned trial Court had no authority to direct the parties to appear before the learned lower appellate Court as was done by it on 23-11-1996. It is further contend that the lower appellate Court has not discussed the evidence issue wise nor has recorded finding on the respective issues. The learned counsel further contends that the appellate Court has not considered the matter in its trw, Live, which judgment is illegal.
5. 'The learned counsel for the contesting respondents/plaintiffs supports the judgment of the two Courts below on the basis of principle laid down is Ghularn A.I and 2 others v. Mat Ghulam Sarwar Naqvi (PLD 1990 SC 1).
6. Inter st, relationship of parties a not disputed. While recording findings on the respective issues, the learned trial Court has not only referred to but also considered the evidence brought on record.
Il was the plea of appellants/defendants that on the basis of soave family settlement, the plaintiffs had relinquished their shares in the inheritance of their father is their favour. No inch document however, was brought on record nor this assertion was proved by bringing any convincing and cogent evidence on record. In the absence of any such document or evidence on record, the presumption was that the plaintiffs/respondents who were legal heirs of deceased Muhammad Argil were entitled to their respective shares under the law and could not be deprived of the same.
Any relinquishment on their part had to be proved on record which the appellants/defendants failed. The findings thus recorded by the learned trial Court do not suffer from any misreading or non-reading of evidence, which have been rightly maintained by the learned lower appellate Court before whom the plea again was that the daughters of the deceased had surrendered their shares in their favour. It remained a mere assertion on the part of appellants/defendants not backed by any evidence worth reliance. The material aspects of the case have duly been adverted to and considered by the learned lower appellate Court and there is no error with the conclusions arrived at by him. In Ghulam A.I and 2 others v. Mst: Ghulam Sarwar NW (PLD 1990 SC .I), it was observed that "a Muslim's estate legally and juridically vests immediately on his death in his or her heirs and their rights respectively cone into separate existence forthwith". It was further laid down in that case that any relinquishment by the female heir has to be conscious one and care should be taken in acting upon the same. As mentioned above, the appellants failed to prove by any convincing and cogent evidence a conscious relinquishment of their share by the respondents/plaintiffs. The findings recorded by the two Courts below on this aspect do not suffer from any illegality.
7. The contentions of the learned counsel for the appellants that the learned trial Court could not have referred the parties to pursue their appeal before the lower appellate Court has no merit in the facts and circumstances of the present case inasmuch as such a step was taken by the learned trial Court on the statements of parties. The said order was not even challenged by them nor any objection was raised before the lower appellate Court where the appeal remained pending for about more than three years. The reliance of the learned counsel for the appellants on a judgment in C.R. No.35 of 1999 is misplaced inasmuch as in that case such a direction of the trial Court was challenged by the aggrieved party whereas in the instant case, appellants never challenged the order, dated 23-11-1996 of the learned trial Court; rather the said order had been passed with the consent of the parties. They having consented to such course of action and also prosecuted the appeal before the lower appellate Court without any objection in that regard, the appellants cannot be heard raising objection after they have now lost appeal before the lower appellate Court.
8. In view of the above, the concurrent view taken by the Courts below in the matter does not warrant interference in Second Appeal by this Court and the same is dismissed.