Mian Maqboolur Rehman (son) and Mst. Bibi Janat Khatoon (daughter of Mian A.I Hussain, residents of Thathi Faqir Sahib District Abbottabad, plaintiffs, filed Suit 'No.212/1 in the Court of Senior Civil Judge, Abbottabad, against Mst. Munawar-un-Nisa and others, defendants of the same residence, claiming a declaration to the effect that plaintiffs arc owners in possession of suit-land by virtue of inheritance from Khalil-ur--Rehman deceased and the entries in-Revenue Record adversely affecting the rights of the plaintiffs are illegal, void and inoperative, on the plaintiffs. The genuineness of Deed No.1183, dated 11-11-1982 stated to have been executed by late Khalil-ur- Rehman in favour of Fazal-ur-Rehman, predecessor-in-interest of the defendants was also brought under challenge and termed as forged and fictitious document.
2. The suit was contested on all grounds, legal as well as factual and the allegations of the plaintiffs were controverted. The pleas of the parties were reduced to the framing of following issues:
(1) Whether the plaintiffs have got a cause of action?
(2) Whether the plaintiffs are estopped to sue?
(3) Whether the suit is time-barred?
(4) Whether the suit is incompetent in its present form:;
(5) Whether the suit is mala fide if so its effect?
(6) Whether the plaintiffs are owners in possession of the suit-land and as such Wasiqa No.183, dated 11-11-1982 on behalf of Khalil-ur---Rehman deceased in favour of Fazal-ur-Rehman predecessor of the defendant is wrong, illegal the result of fraud and collusion and ineffective upon their rights?
(7) Whether the plaintiffs are entitled to the decree prayed for?
(8) Relief.
3. After taking into consideration the evidence produced by the parties in support of their respective contentions and hearing arguments of learned counsel for the parties, Mr. Muhammad Arshad Khan, the then Senior Civil Judge, Abbottabad, who decided the suit, found Issues Nos. 1, 2, 4 and 5 in negative and pointed out that the suit was barred by time. Regarding Issues Nos.6 and 7, which were taken up together, it was held that the registered dead has not been proved to be the result of fraud, collusion and impersonation. Finally, the suit was dismissed by judgment and decree, dated 8-6-1993 which was maintained in appeal announced by District Judge, Abbottabad on 14-7-1994.
4. The petitioners (since dead and represented by their legal heirs) feeling aggrieved, have filed instant revision petition questioning the correctness of the impugned judgments and decrees of Courts below.
5. I have heard S. Mehboob Ahmad Shah, Advocate for the petitioners and Mr. Shakeel Ahmad, Advocate for the respondents. I have also gone through the material on record with their able assistance.
6. It has been vehemently contended by learned counsel for the petitioners that the impugned judgments and decrees of Courts below, suffer from legal infirmities due to misreading and non- reading of evidence and conclusions drawn are wrong and erroneous which have materially prejudiced the rights of the petitioners. The learned counsel attempted to argue that the deed in question is forged and fictitious document which was registered by producing a fictitious person before the Sub-Registrar. In the alternative it was maintained that at the relevant time Khalil-ur- Rehman was suffering from "Marz-ul-Maut" and thus, the deed attributed to him is invalid and of no consequence. In the last leg of arguments, learned counsel for the petitioners contended that the finding of the learned trial Judge on Issue No.3 regarding limitation is erroneous and the same should not have been upheld by the first appellate Court. To argument the contentions reliance was placed on cases Ghulam Hussain and others petitioner v. Imam Bakhsh and 9 others respondents 1995 M LD 1165 (Peshawar), Atta Muhammad petitioners v. Nasir-ud-Din respondent PLD 1993 Pesh. 127, Khan Mir, Daud Khan and others petitioners v. Mahrullah and others respondents PLD 2001 SC 67 and Mst. Amina Bi appellant v. Mst. Bivi and others respondents 1993 M LD 1207 (Lahore).
7. While controverting the arguments addressed on behalf of the petitioners, learned counsel for the respondents contended that the findings on issues returned against the petitioners are supported by actual evidence on record and no case for misreading or non-reading of evidence has been made out requiring interference to disturb concurrent findings of Courts below. To support the submissions, reliance was placed on Jam Pari appellant v. Muhammad Abdullah respondent 1982 SCM R 786 (Supreme- Court of Pakistan), Sheikh Muhammad Bashir A.I and others appellants v. Sufi Ghulam Mohi-ud-Din respondent 1996 SCM R 813 (Supreme Court of Pakistan), Haji Muhammad Din appellant v. Malik Muhammad Abdullah respondent PLO 1994 SC 291 and Abdul Hakeem appellant v. Habibullah and 11 others respondents 1997 SCM R 1139.
8. It needs no reiteration that the High Court in exercise of its revisional jurisdiction is empowered to set at naught the concurrent finding of fact of two Courts below if it was satisfied that the finding was based on misreading or non-reading of evidence and concurrent finding of fact does not always stand in the way of the High Court to correct them in the appropriate cases. In the instant case the Courts below while recording the finding of fact have neither misread the evidence nor have ignored any material piece of evidence on record. The High Court in exercise of its jurisdiction tinder section 115, C.P.C. Can only interfere with the orders of the subordinate Courts on the grounds that the Court below has assumed jurisdiction which did not vest in it, or has failed to exercise the jurisdiction vested in it by law or that the Court below has acts with material irregularity affecting its jurisdiction in the case.
9. In the present case, Khalil-ur-Rehman, original owner of suit-land, is stated to have executed no document in favour of Fazal-ur-Rehman predecessor-in-interest of the defendants and a fictitious person is shown to have been produced before the Sub-Registrar. The onus to prove this fact was heavily placed on the petitioners but they have not been able to produce cogent and reliable evidence in this connection. Khalil-ur-Rahman is also stated to have executed the deed under reference during "Marz-ul-Maut", Where is nothing on the file to show that the deed was in fact executed when Khalil-ur-Rehman was suffering from "Marz-ul-Maut". The mere assertion of the petitioners that the deed was executed during, "Marz-ul-Maut" of Khalil-ur-Rehman or that a fictitious person had been produced before the Sub-Registrar, without a positive attempt on the part of the petitioners, to substantiate the same, is of no consequence. I may pause here to mention that the deed in question is dated 11-11-1982, Khalil-ur-Rehman expired on 15-6-1988 after more than 5 years of the execution of the deed whereas the suit in hand was brought on 15-11-1988.
The deed was not challenged during the lifetime of its executor. In the circumstances, it is difficult to believe that the deed was executed during "Marz-ul-Maut" of Khalil-ur-Rehman and as such the satire is invalid and of no consequence. To constitute a malady "Mart-ul-Maut", there must be (1) proximate danger of death so that there is a preponderance of apprehension of death, (2) some degree of subjective apprehension of death in the mind of the sick person, and (3) some external indicia chief among which would be inability to attend to ordinary avocations. In the circumstances feel satisfied that late Khalil-ur-Rehman had rightly executed the deed under reference and transferred his property in favour of the predecessor-in-interest of the respondents with his free-will and it does not lie in the mouth of the petitioners to assert that the deed was result of fraud and a fictitious person was produced before the Sub-Registrar or in the alternative the deed was executed during "Marz-ul-Maut" of the executor Khalil-ur-Rehman. During the last days of his life Khalil-ur---Rehman was residing with the respondents. The possibility of Khalil-ur- Rehman having transferred his property in the name of the predecessor-in-interest of the respondents, in acknowledgment of services rendered to Khalil-ur-Rehman, cannot be excluded in the circumstances of the case. The fact of transfer also stands proved by the deposition made by Khalil-ur---Rehman in 1986 in Suit No.398/1, titled Noor v. Khalil that lie has disposed of his entire property and nothing is left with him. This deposition was in the knowledge of the petitioners.
10. So far as the question of limitation is concerned I find myself in agreement with Courts below that the petitioners were fully aware of the proceedings i.e., registration of the impugned deed but despite that the suit was lodged after expiry of Khalil-ur-Rehman owner of suit-land.
11. Adverting to the case-law produced on behalf of the petitioners lam of the opinion that the rulings cited at the Bar are quite distinguishable and speak of the different situation. The cited rulings do not promote the case of the petitioners in any manner.
12. No other point has been raised and rightly so.
13. Pursuant to the above discussion, finding no force in this revision petition I dismiss the same and allow the parties to bear their own costs.