The litigation between the parties started in year 1978 when Mst. Noor Nishan daughter of Mir Zaman filed suit against Faqir son of Abdullah (since dead and represented by his widow Mst.
Zainum Noor and others) claiming a declaration to the effect that she is owner in possession of certain portion of the property in suit (fully described in the schedule of the plaint) by virtue of inheritance of her mother and Faqir Muhammad defendant has no concern with it and that the entries in Revenue Record in the name of Faqir Muhammad are illegal, void, fraudulent and ineffective on the rights of the plaintiff and liable to cancellation. She also sought cancellation of subsequent mutations attested on the basis of the aforesaid entries in favour of the defendant. A prayer for grant of permanent injunction restraining the defendants to pose themselves as owner of suit-property and in the alternative possession of the same, was also made in the plaint.
2. The defendants appeared in Court and contested the suit on all grounds legal as well as factual.
The pleas of the parties were to -the following issues:--
(1) Whether the plaintiff has got a cause of action?
(2) Whether the suit is defective in its present form and so not maintainable?
(3) Whether this Court has got no jurisdiction to entertain the present suit?
(4) Whether the suit is not maintainable under section 12(2), C.P.C.?
(5) Whether the suit is within time?
(6) Whether the suit is bad for misjoinder and non joinder of necessary parties?
(7) Whether the plaintiff is estopped to bring the present suit?
(8) Whether the plaintiff has waived her rights in the suit-land?
(9) Whether the suit has hit by the doctrine of res judicata?
(10) Whether defendant No.6 has matured her title by adverse possession for more than 12 years?
(11) Whether the suit is collusive one, and just for black-mailing the defendant No.6?
(12) Whether the plaintiff is entitled to the declaration as prayed for in relief "A" of the plaint?
(13) Whether the plaintiff is entitled in alternative to the possession of the suit-land?
(14) Relief.
3. In evidence the plaintiff produced Abdul Sattar S.O.K., Abbottabad, Abdul Basit S.O.K. Abbottabad, Arif Khan, Patwari Halqa Kakotri, Haji Ahmad S.O.K. Abbottabad, Khalid Khan, Patwari Halqa Kakotri and Aurangzeb Special Attorney for the plaintiff. On the contrary, the solitary statement of Abdul Ghani was recorded to substantiate the stand taken by the defendants. The S.O.Ks. And the Patwaris Halqa placed on record attested copies of Revenue Record pertaining to the property in suit. Aurangzeb who appeared in the witness-box as P.W.3 stated that Mir Zaman father of Mst.
Noor Nishan plaintiff was original owner of suit-land who died during "Riwaj". His inheritance devolved upon Mst. Surat Jan (widow). After some time Mst. Surat Jan contracted second marriage and as such her estate devolved upon the plaintiff. Since then the plaintiff remains in continuous possession of suit-land. The witness continued to say that Faqir Muhammad a cronic litigant managed to prepare a forged registered exchange deed on behalf of the plaintiff in his favour. A suit was filed by Sher Muhammad successor of Mir Zaman for cancellation of the mentioned deed.
The suit was decreed and the deed was cancelled. However, this order could not be incorporated in revenue papers.
4. Abdul Ghani defendant No.6 (D.W.1) stated at the trial that he purchased a portion of suit-land from the legal heirs of Faqir Muhammad. The suit property was correctly transferred in the name of Faqir Muhammad. The plaintiff has already transferred her share in favour of Faqir Muhammad and she has no interest in suit property.
5. Upon consideration of the evidence a resume of which has been given above, learned Civil Judge, Abbottabad, who tried the suit, discussed Issues Nos. 1, 6, 10, 12 and 13 together and found the same in favour of the plaintiff. Regarding Issue No.5 it was pointed out that the suit is within time. The remaining issues were decided accordingly and the Court was found to have jurisdiction to entertain the suit and the suit was found not bad for non---joinder and misjoinder of necessary parties. Resultantly, the suit was decreed vide judgment and decree, dated 30-10-1985 which was upheld in appeal vide judgment and decree, dated 21-10-1993.
6. Mst. Zainum Noor (since expired and represented by her legal heirs) and others, feeling aggrieved, have filed instant revision petition impugning the judgment and decree, dated 21-10- 1993 passed by District Judge, Mirpur in Civil Appeal No.45/13 and judgment and decree of Civil Judge, Abbottabad dated 30-10-1985.
7. Mt. Abdul Karim Malik learned counsel for the petitioners, explained the entire history of the case and contended that the material on record both oral as well as documentary, vividly showing the ownership of Faqir Muhammad in suit property, has not been properly taken into consideration and evaluated by the Courts below which has, materially prejudiced the rights of the petitioners. He added that after the termination of the custom, the land of Mir Zaman original owner should have been deemed to devolve upon his widow according to Shariat Law passed in 1935. The learned counsel also challenged the findings of the Courts below on issues found against his clients and maintained that the same suffer from gross misreading and non-reading of evidence and cannot be allowed to remain tact. The learned counsel also reiterated that presumption of truth is attached to the entries recorded in Revenue Record and the same could not be brushed aside lightly without justifiable reasons. According to the learned counsel the plaintiff was owner to the extent of 1/9th share which she had transferred to Faqir Muhammad for consideration. To substantiate the pleas, he relied on Muhammad Sana Mondal appellant v. Muhammad Ahmad Sheikh and others respondents PLD 1963 Dacca 816, Syed Mehboob Shah petitioner v. Sher Afzal respondent 1984 CLC 2499 (Karachi), A.I Muhammad Brohi plaintiff v. Haji Muhammad Hashim defendant 1983 CLC 2052 (Karachi), Muhammad Hayat and others petitioners v. A.I Muhammad and others respondents 1983 CLC 2380 (Lahore), Haji Muhammad Din appellant v. Malik Muhammad Abdullah respondent PLD 1994 SC 291, Abdul Latif petitioner v. Abdul Qayum respondent PLD 1992 Pesh. 103, Abdul Ghafoor applicant v. Government of Sindh and others respondents PLD 1993 Kar. 52, Rashmin and another petitioners v. Abdur Rahim and others respondents PLD 1993 Pesh. 239, Siddique Khan and 2 others appellants v. Abdul Shakoor Khan and another respondents PLD 1984 SC 289.
8. Conversely it has been submitted by Haji Sardar Bahadur Khan, Advocate for the respondents that the impugned judgments and decrees are supported by actual evidence on record and hardly call for interference of this Court. The learned counsel invited my attention to the various provisions of the Shariat Application Act, 1962 and contended that all transactions having been carried out before amendment in the Shariat Act of 1962, the status of Mst. Noor Nishan was of customary lady and her status having been changed by operation of law she had no authority in 1946 to exchange property through any instrument. The learned counsel placed reliance on Suba through his 8 L.Rs. Appellants v. Mst. Fatima Bibi 1992 SCMR 1721, Ghulam Haqani and another petitioners v. Mst. Zulekhan and others plaintiffs-respondents PLD 1953 Pesh. 65, Muhammad Imran petitioner v. Malik Aman and others respondents 1979 SCMR 481, Waheed Gul petitioner v. Mst.
Saida Jan respondent 1998 MLD 3 (Peshawar), Sheikh Muhammad Bashir A.I v. Sufi Ghulam Muhiyuddin respondent 1996 SCMR 813, Fida Muhammad and 3 others. Appellants v. All residents of Rumboor Velley respondents 1997 SCMR 846 and Mehr Jan and 2 others petitioners v. Gut Azam respondent 2001 MLD 412 (Peshawar).
9. I have heard the arguments of learned counsel for the parties in the light of the material on record and the case-law cited at the Bar.
10. A perusal of the record would reveal that Mir Zaman father of Mst. Noor Nishan plaintiff died some where in 1932 during "Riwaj" when customary law was enforced. Late Mir Zaman was the original owner of suit---land. He had no male issue. After the demise of Mir Zaman, the property left behind him devolved upon his widow Mst. Surat Jan. As Mst. Surat Jan contracted second marriage, the property was inherited by Mst. Noor Nishan plaintiff. Faqir Muhammad, predecessor- in-interest of the petitioners prepared a registered exchange deed which was challenged by the plaintiff in a Civil Court. The suit filed by the plaintiff was decreed and the deed was cancelled.
Abdul Ghani, defendant No.6 claims to have purchased suit-lava from Faqir Muhammad. Nothing in support of the claim has been produced in Court. The mere assertion of defendant No.6 regarding factum of purchase from Faqir Muhammad without a positive attempt on his part to substantiate the same, is of no consequence. It is not denied that all the transactions had taken place between the parties before the amendment in Shariat Act, when the plaintiff had a status of customary owner.
It is contended by learned counsel for the petitioners the judgments of the Courts below are not supported by cogent reasons on the subject---matter. However, the learned counsel could not point out any error therein warranting interference by this Court in its revisional jurisdiction. The High Court in its revisional jurisdiction under section 115, C.P.C. Is not competent in undertaking its own appraisal of evidence in the face of the concurrent finding of the two Courts below, in the absence of any jurisdictional error or material irregularity. Revisional powers under section 115, C.P.C: are primarily intended for correcting errors made by the subordinate Courts in the exercise of their jurisdiction. Also ordinarily erroneous decisions of fact are not revisable except in cases where the decision is based on no evidence or inadmissible evidence was relied upon or the orders sought to be revised are so perverse that grave injustice would result there from. Learned counsel pleading for the petitioners has not been able to point out any jurisdictional defect in the impugned judgments nor he could show any misreading of relevant evidence or overlooking any important evidence. The ruling cited by him are distinguishable and speak of the different situation.
T lings being distinguishable need no discussion in detail.
11. In the result and the foregoing reasons finding no substance in this revision petition I dismiss the same with no orders as to cots.