' Through the present revision petition, the petitioners have called in question the judgment and decree dated 4-4-1993 passed by the learned Additional District Judge, Gujrat whereby the judgment and decree of the learned trial Judge dated 12-7-1988 was set aside and the suit filed by the petitioners was dismissed.
2. Briefly the facts of the case are that the petitioners filed a suit to seek declaration qua the land measuring 56 Kanals originally owned by Baqri (deceased) on the basis of the 'will' dated 7-5-1979 from Baqri to the petitioners. The Mutation of Inheritance No,2257 dated 19-3-1980 attested in favour of the respondents was also challenged in the suit. On contesting written statement of the respondents, the trial Judge framed the following issues:--
(1) Whether the plaintiffs are owners in possession of the suit-land on the basis of 'will' made by Baqri deceased? OPP
(2) Whether the plaint is not properly signed and verified by plaintiffs Nos.2, 3 and 4 and as such the plaint is liable to be rejected? OPD
(3) Who is in possession of the suit-land? OPPs (3-A) Whether the impugned Mutation No,2388 in favour of Saee defendant i.e, based on misrepresentation, fraud and against the facts and law and as such inoperative on the rights of the plaintiffs? OPP
(4) Relief.
3. The parties led their evidence. The learned trial Judge vide judgment and decree dated 12-7- 1988 partly decreed the suit of the petitioners to the extent of 1/3rd of the suit-land. On the respondents' appeal, the learned Additional District Judge, Gujrat, vide his judgment and decree dated 4-4-1993 set aside the judgment of the learned trial Judge and dismissed the suit, of the petitioners in entirety. Hence this revision.
4. The learned counsel for the petitioners raised the following contentions:--
(i) That the learned Additional District Judge while setting aside the well-reasoned judgment of the trial Court did not take, consider and deal with the reasoning advanced therein. Reliance was placed upon the case of "Madan Gopal and 4 others v. Maran Bepari and 3 others" PLD 1969 SC 617.
(ii) That execution of the 'will' dated 7-5-1979 (Exh.P.1) had been amply proved through the evidence of scribe Sabir Hussain, P.W.1, the marginal witness Muhammad Anwar, P.W.2 and Muhammad Aslam plaintiff as P.W.3.
(iii) That the petitioners were real nephews of late Bari and the deceased Baqri lived with the petitioners till his death, wherefor they had rendering service to him. The deceased being issueless and on the above account of service made 'will' of the land in question in their favour.
5. The learned counsel for the respondents supported the judgment of the learned Additional District Judge, Gujrat and further contended that two marginal witnesses of the 'will' have not been produced to prove the will. Also that the signatures of the marginal witnesses of the 'will' were in different ink as compared with rest of the parties of the 'will' and on that account the will was rightly discarded by the learned Additional District Judge, Gujrat.
6. I have attended to the arguments and the reccprd. The learned trial Judge elaborately analyzed the depositions/ evidence of the witnesses and recorded his detailed findings as to the proof of the will'. Since the findings of the learned Courts below are at variance therefore relying upon the principle laid down in the case of "Khan Meer Daud Khan and others v, Mehr Ullah and others" PLD 2001 SC 67. I re-examined the evidence on the record. Principle pronounced in the case being important is reproduced hereunder:-- "10. It is settled law that the High Court can undertake reappraisal of evidence if it finds that there was gross misreading of evidence by the trial Court or of the Appellate Court ignoring the material evidence. We have noticed that the Appellate Court has not at all appraised the evidence but simply set aside the findings of the trial Court, therefore, it was all the more necessary for the learned Single Judge to have himself appraised the evidence in depth and draw proper inference from the evidence which the learned Single Judge had appropriately done. Again, if the two learned Courts below are at variance then the learned High Court would be justified in reappraising the evidence if the Appellate Court while recording the divergent views on the issues involved had not at all adverted to the evidence and had only reversed the findings without pointing out the relevant evidence on those issues."
7. The petitioners/plaintiffs in order to prove the execution of the 'will' Exh.P.1 dated 7-5-1979 produced Sabir Hussain scribe of the 'will' as P.W.1. He deposed on Oath that he wrote the 'will' in question at the instance of late Baqri and on his direction, and that late Baqri thumb-marked the 'will' in his presence. Muhammad Anwar (P.W.2); the marginal witness of the 'will' also stated on Oath that the 'will' in question was written in his presence and that he signed the 'will' as marginal witness and that the 'will' was written at the instance of late Baqri in favour of the petitioners.
Muhammad Aslam P.W.3 one of the plaintiffs deposed as to the pleadings of the plaint. P.W.3 while making statement on Oath deposed that late Baqri was his real paternal uncle and that he remained with him till his death. Baqri died issueless.
8. More significantly the Mutation of Inheritance No,2257 dated 19-3-1980 shows that the factum of existence/execution of this 'will' was brought to the notice of the Revenue Officer at the time of the attestation of aforesaid mutation.
9. As held in the case of "Muhammad Ilyas v. Ghulam Muhammad and another" 1999 SCM R 958, civil cases are decided on the basis of preponderance of evidence. Considering the preponderance and the evidence on record, I believe that the petitioner-plaintiffs succeeded in proving the execution of the 'will' in their favour by Baqri deceased.
10. The contention of the learned counsel for the respondents that two marginal witnesses were not produced in support of the execution of the 'will' wherefor the will remained unproved, is not well- founded. The 'will' (Exh.P.1) was executed on 7-5-1979. Articles 17 and 79 of Qanun-e-Shahadat Order came in force in the year 1984. The provisions of the above Article cannot be applied retrospectively as has been held in the cases of "Syed Muhammad Sultan v. Kabir-ud-Din and others" PLD 1997 Lahore 1526 and "Mst. Rasheeda Begum and 3 others v. Muhammad Yousaf and others" 2002 SCM R 1089. In the present case Sabir Hussain also qualified as a marginal witness as per his statement on Oath that late Baqri thumb-marked the 'will' (Exh.P.1) in his presence after he wrote the 'will' at his instance and on his direction.
11 The learned Additional District Judge ignored the above referred evidence as well as the principles of law. Signatures in different ink could hardly be made basis for discarding the if the execution of the 'will' was otherwise amply proved. In the case of "Sardari Mal v. Abdul Samad" AIR 1925 Lahore 430, it was observed by a learned Division Bench of this Court that:-- ' This evidence the trial Court has completely rejected on what we hold to be very inadequate grounds inasmuch as the Signatures of the witnesses appear to be written with a different ink and pen from that used to write the body of the document...."
12. For what has been stated above. This revision petition is accepted. The judgment and decree of the learned Additional District Judge, Gujrat, dated 4-4-1993 is set aside and the judgment and decree of the learned trial Court is restored. As a result the suit of the petitioners stands decreed to the extent of 1/3rd of the suit-land. Parties shall bear their own costs.