The Lahore High Court dismissed Muhammad Bashir Ahmad's petition regarding land inheritance due to procedural errors and unreliable evidence.
The Lahore High Court dismissed the petition filed by Muhammad Bashir Ahmad and another regarding inheritance rights to land in Chak No. 385/GB, Tehsil Samundari, District Faisalabad. The court upheld the previous judgments of dismissal by the lower courts due to procedural bars, including the petitioners' withdrawal of an earlier suit without permission to refile and the statute of limitations. Additionally, the court found the evidence regarding the dates of death unreliable. Therefore, the petition was dismissed.
The Lahore High Court dismissed a revision petition filed by Muhammad Bashir Ahmad and another regarding the inheritance of 61 Kanals and 2 Marlas of land in Chak No. 385/GB, Tehsil Samundari, District Faisalabad. The petitioners, claiming to be the sons of Mst. Saidan Bibi, argued that their mother was wrongly excluded from the inheritance of her father, Fateh Muhammad, whose estate was divided among his other children via mutation No. 35 on August 11, 1961.
The respondents, including the Province of Punjab, contended that Mst. Saidan Bibi died in 1947, before the death of her father in 1960, and therefore, her children were not entitled to the inheritance under the laws in effect at that time. The petitioners' earlier suit on this matter was withdrawn in 2002 without permission to refile, which barred them from bringing the suit again. Furthermore, the new suit was filed after a significant delay, making it time-barred. The court found the petitioners' evidence regarding the dates of death unreliable and supported the respondents' documentation.
The court upheld the concurrent findings of the lower courts, which had dismissed the petitioners' suit, and ruled that there was no significant misjudgment warranting interference.
Stereo. HCJDA 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Civil Revision No.4663 of 2015
Muhammad Bashir Ahmad and another
VERSUS
Province of Punjab through District Officer (Revenue)
others
JUDGMENT
Date of Hearing: 16.05.2024
Petitioner(s):
Mr. Shahid Aziz Anjum & Imran A.
Mian, Advocate
Respondent(s):
Mr. Qamar Zaman Qureshi,
Additional Advocate General
Punjab
Mr. Muhammad Ali Ramay, Abbas
Ali Cheema & Janaan Gull,
Advocates for the legal heirs of
respondent No.2
Respondents No. 3 to 22 ex parte on
25.04.2024
SHAHID BILAL HASSAN-J: Succinctly, the
petitioners instituted a suit for declaration against the
respondents, wherein they asserted that they are real
sons of Mst. Saidan Bibi (deceased) and Mst. Saidan
Bibi was real daughter of Fateh Muhammad (deceased)
who was owner of 61-Kanals 02-Marlas land in Chak
No.385/GB, Tehsil Samundari, District Faisalabad; that
Fateh Muhammad had three sons namely Fazal
Muhammad, Safdar Khan and Zafar Ali and three
C.R.No.4663 of 2015
2
daughters namely Maqsoodan Begum, Mehmooda
Begum and Saidan Bibi; that the respondents No.2 to
22, in connivance with subordinate staff of respondent
No.1 got mutation of suit land in their favour vide
mutation No.35 dated 11.08.1961 but in order to
deprive Mst. Saidan Bibi from inheritance, her name
was excluded from the mutation of inheritance. The
petitioners challenged the vires of the said mutation
No.35 dated 11.08.1961 and subsequent inheritance
mutation in favour of respondents No.2 to 22 and they
sought their shares in the suit land being children of
Mst. Saidan Bibi.
2.
The suit was contested by the deceased
respondent No.2 namely Safdar Ali while submitting
written statement who controverted averments of the
plaint by maintaining that Fateh Muhammad died on
10.11.1960 whereas Mst. Saidan Bibi died in the year
1947; that Muslim Family Laws were promulgated in
the year 1961, therefore, at the time of death of Fateh
Muhammad, the children of Mst. Saidan Bibi being
maternal grandchildren of Fateh Muhammad were not
entitled to get any share in inheritance of Fateh
Muhammad and mutation No.35 dated 11.08.1961 was
correctly entered and sanctioned. After death of Safdar
Ali Khan, his children were impleaded as defendants
C.R.No.4663 of 2015
3
No.2-A to 2-E in the suit. The defendants No.3, 4 to 9,
10 to 13 and 14 filed their conceding written statements
to the suit, whereas the remaining defendants were
proceeded against ex parte. Out of the divergent
pleadings of the parties, the learned trial Court framed
issues and evidence of the parties in pro and contra was
recorded. On conclusion of trial, the learned trial Court
vide impugned judgment and decree dated 19.03.2015
dismissed suit of the petitioners. The petitioners being
dissatisfied and aggrieved preferred an appeal but the
same was dismissed vide impugned judgment and
decree dated 30.11.2015 by the learned appellate Court;
hence, the instant revision petition.
3.
Heard.
4.
There is no denial to the fact that earlier a
suit germane to the disputed inheritance mutation No.35
was instituted by the present petitioners on 21.12.2001
in Tehsil Samundari, copy whereof was placed on
record as Ex.D3, which was dismissed as withdrawn on
02.10.2002 vide Ex.D5 after the statement of the
learned counsel for plaintiffs in the said suit to the
effect that he withdraws the suit and now there is no
dispute between the parties and that the parties have
reached to a settlement; meaning thereby the said suit
was withdrawn due to some settlement and without
C.R.No.4663 of 2015
4
seeking any permission to institute the same afresh;
therefore, the present suit was hit by Rule 1(3) of Order
XXIII, Code of Civil Procedure, 1908, because the said
provision of law provides:-
‘Where the plaintiff withdraws from a suit,
or abandons part of a claim, without the
permission referred to in sub-rule(2), he
shall be liable for such costs as the Court
may award and shall be precluded from
instituting any fresh suit in respect of such
subject-matter or such part of the claim.’
In the present case, no permission, as stated above, was
sought for filing the suit afresh, therefore, the
petitioners were precluded from instituting the suit
under discussion. In this regard reliance is placed on
Muhammad Yar (Deceased) through L.Rs. and others v.
Muhammad Amin (Deceased) through L.Rs. and others
(2013 SCMR 464), wherein it has been held that:-
‘From the clear language of the above, it
is vivid and manifest that the noted rule
mainly comprises of two parts; sub-rule
(1) entitles the plaintiff of a case to
withdraw his suit and/or abandon his
claim or a part thereof, against all or any
one of the defendants, at any stage of the
proceeding and this is his absolute
privilege and prerogative (Note: except in
certain cases where a decree has been
passed by the Court such as in the cases
C.R.No.4663 of 2015
5
pertaining to the partition of the
immovable property etc.). And where the
plaintiff has exercised his noted privilege
he shall be precluded from instituting a
fresh suit on the basis of the same cause of
action qua the same subject matter and
against the same defendant(s) and this bar
is absolute and conclusive, which is so
visible from the mandate of sub-rule(3).’
It was further held in the above said judgment that:-
‘……; but the fact remains that the counsel
in clear and unequivocal terms pleaded to
the Court and got his statement recorded,
that the petitioners would not like to
pursue the suit and would like to withdraw.
This is a withdrawal simpliciter as
envisaged and covered by the provisions of
Order XVIII, Rule 1(1), C.P.C., without
there being any nexus and recourse to subrule (2)(a)(b). Thus, in view of the above
peculiar circumstances of this case, the
petitioner could not file a fresh civil suit to
challenge the same decision/verdicts of the
Revenue Courts through which their preemption suit was discarded.’
The facts of the case in hand are identical to the facts of
the above said judgment of the Supreme Court of
Pakistan because in the present case, the withdrawal of
the earlier suit by learned counsel for the petitioners is
C.R.No.4663 of 2015
6
simpliciter and no permission to file afresh was sought.
The observations and inference drawn in the above said
judgment has been reaffirmed by the Supreme Court of
Pakistan in judgment reported as Khawaja Bashir
Ahmed and Sons (Pvt.) Ltd. v. Messrs Martrade
Shipping and Transport and others (PLJ 2021 SC
227). Therefore, the learned Courts below have rightly
adjudicated upon the matter in hand on this score.
5.
Even the suit under discussion is barred by
limitation, because the earlier suit was withdrawn on
02.10.2002 and the suit under discussion was instituted
after about eight years from its withdrawal, as Rule 2 of
Order XXIII, Code of Civil Procedure, 1908 provides
that:-
‘2.
Limitation law not affected by first
suit. In any fresh suit instituted on
permission granted under the last
preceding rule, the plaintiff shall be bound
by the law of limitation in the same
manner as if the first suit had not been
instituted.’
The learned appellate Court has rightly observed that
once limitation began to run it does not stop in the
absence of any solid reason.
C.R.No.4663 of 2015
7
6.
Additionally, the documentary evidence
produced by the petitioners as to death of Mst. Saidan
Bibi and Fateh Muhammad is not confidence inspiring
and cogent rather it has surfaced on record through
report of Secretary Union Council concerned that there
is no entry of death of Fateh Muhammad in the register
of deaths for the year 1961 and same is the position as
to entry of death of Mst. Saidan Bibi in the year 1964
and Maqsoodan Bibi in the year 1968. As against this,
the documents Ex.D1 and Ex.D2 being public
documents fully support the stance of the respondents/
defendants. Therefore, it can safely be concluded and
held that Mst. Saidan Bibi, having died prior to death of
Fateh Muhammad, who died on 10.11.1960 was rightly
excluded from the inheritance mutation No.35 as to
legacy of Fateh Muhammad, because at that time
Muslim Family Personal Law Ordinance, 1961 had not
been promulgated and enacted; therefore, no benefit of
section 4 of the Ordinance, 1961 ibid was available to
the present petitioners.
7.
Pursuant to the above, the learned Courts
below have rightly appreciated and evaluated evidence
of the parties and have reached to a just conclusion,
concurrently, that the petitioners have failed to prove
their case by leading cogent, confidence inspiring and
C.R.No.4663 of 2015
8
trustworthy evidence. As such, the concurrent findings
on record cannot be disturbed in exercise of revisional
jurisdiction under section 115 of Code of Civil
Procedure, 1908. Reliance is placed on judgments
reported as Mst. Zaitoon Begum v. Nazar Hussain and
another (2014 SCMR 1469), CANTONMENT BOARD
through Executive Officer, Cantt. Board Rawalpindi v.
IKHLAQ AHMED and others (2014 SCMR 161),
Muhammad Farid Khan v. Muhammad Ibrahim, etc.
(2017 SCMR 679), Muhammad Sarwar and others v.
Hashmal Khan and others (PLD 2022 Supreme Court
13) and Mst. Zarsheda v. Nobat Khan (PLD 2022
Supreme Court 21) wherein it has been held that :-
‘There is a difference between the
misreading, non-reading and
misappreciation of the evidence therefore,
the scope of the appellate and revisional
jurisdiction must not be confused and care
must be taken for interference in revisional
jurisdiction only in the cases in which the
order passed or a judgment rendered by a
subordinate Court is found perverse or
suffering from a jurisdictional error or the
defect of misreading or non-reading of
evidence and the conclusion drawn is
contrary to law. This court in the case of
Sultan Muhammad and another v.
Muhammad Qasim and others (2010
SCMR 1630) held that the concurrent
C.R.No.4663 of 2015
9
findings of three courts below on a
question of fact, if not based on misreading
or non-reading of evidence and not
suffering from any illegality or material
irregularity effecting the merits of the case
are not open to question at the revisional
stage.’
Further in judgment reported as Salamat Ali and others
v. Muhammad Din and others (PLJ 2023 SC 8), it has
invariably been held that:-
‘Needless to mention that a revisional
Court cannot upset a finding of fact of the
Court(s) below unless that finding is the
result of misreading, non-reading, or
perverse or absurd appraisal of some
material evidence. The revisional Court
cannot substitute the finding of the
Court(s) below with its own merely for the
reason that it finds its own finding more
plausible than that of the Court(s) below.’
In this regard, safer reliance can also be placed on
judgment reported as Mst. Farzana Zia and others v.
Mst. Saadia Andaleeb (2024 SCMR 916) wherein it
has invariably been held that:-
‘13. We are sanguine that the High
Court has the powers to reevaluate the
concurrent findings of fact arrived at by
the lower courts in appropriate cases but
cannot upset such crystalized findings if
the same are based on relevant evidence or
C.R.No.4663 of 2015
10
without any misreading or non-reading of
evidence. The first appellate court also
expansively re-evaluated and re-examined
the entire evidence on record. If the facts
have been justly tried by two courts and
the same conclusion has been reached by
both the courts concurrently then it would
not be judicious to revisit it for drawing
some other conclusion or interpretation of
evidence in a second appeal under section
100 or under revisional jurisdiction under
section 115, C.P.C., because any such
attempt would also be against the doctrine
of finality……………………………… The
High Court cannot substitute its own
findings unless it is found that the
conclusion drawn by the lower courts were
flawed or deviant to the erroneous
proposition of law or caused serious
miscarriage of justice and must also avoid
independent re-assessment of the evidence
to supplant its own conclusion.’
8.
For the foregoing reasons, the revision
petition in hand comes to naught and the same stands
dismissed. No order as to the costs.
SHAHID BILAL HASSAN
Judge
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