2018 Y L R 942
[Balochistan]
Before Nazeer Ahmed Langove, J
ZULFIQAR ALI BAKHTIARI and others ---Petitioners
Versus
Mst. KHALIDA BAKHTIARI and another ---Respondents
Civil Revision No. 45 of 2015, decided on 16th November, 2017.
Civil Procedure Code (V of 1908) ---
----S. 115---Suit for declaration and injunction--- Concurrent findings of facts by two courts
below ---Revisional jurisdiction of High Court ---Principles ---Plaintiff sought her Sharai share in
legacy/property left by predecessor -in-interest of part ies---Suit was decreed by Trial Court in
favour of plaintiff and appeal filed by defendants was dismissed by Lower Appellate Court ---
Validity ---High Court while exercising revisional jurisdiction was not permitted to reopen or
dilate upon merits of case ---While exercising jurisdiction under S.115, C.P.C. High Court had to
confine itself only to law points involved in the matter or any specific portion of evidence if
omitted by courts below ---Concurrent findings of facts and law arrived at by two courts below
could only be disturbed if High Court would come to conclusion that same were illegal,
unlawful, based on misreading and non- reading of evidence, shocking, perverse, artificial and
fanciful ---High Court maintained judgment and decrees passed by both cour ts below which
were, after proper appreciation of entire material/evidence, available on record and taking into consideration all legal as well as factual aspects of case passed well -reasoned judgments/decrees
and same were not open to any exception---Revi sion was dismissed in circumstances.
2015 SCMR 1091; Civil Appeal No.2688 of 2006 and Ghulam Ali v. Ghulam Sarwar Naqvi (Mst.) PLD 1990 SC 1 rel.
Nemo for Petitioner.
Tahir Ali Baloch, along with Respondent No.1.
Date of hearing: 8th November, 2017.
JUDGMENT
NAZEER AHMED LANGOVE, J. ---Instnat Revision petition is directed against the
judgments and decrees dated 29.07.2009 and 13.02.2015 respectively passed by learned Senior
Civil Judge -I, and Additional District Judge -IV, Quetta whereby the suit filed by Respondent
No.1 was decreed and appeal filed by the petitioners was dismissed.
2. Brief facts for filing of instant Revision petition are that the Respondent No. 1/plaintiff
instituted a suit for declaration, injunction and handing over the vacant posse ssion of the 'Sharai'
share in the legacy property against the petitioners in the Court of Senior Civil Judge -I, Quetta. It
was averred in the plaint that the plaintiff and defendants Nos. 1 to 3 are the real sons and
daughter of late Sajjad Ali Bakhtiari who died in the year 1985. The father of plaintiff and
defendants Nos. 1 to 3 married with Mst. Zarina Bakhtiari (already divorced by her husband
namely Fazal Noor late) and out of said wedlock defendants Nos. 5 and 6 took birth whereas
Mst. Zarina Bakhtia ri gave birth to plaintiff and defendants Nos. 1 to 3. The father of plaintiff
and defendants at the time of his death left behind various movable and immovable properties as legacy, detail whereof was mentioned in the plaint. According to the plaintiff the movable and immovable properties left behind by her father have not been distributed among the legal heirs and the same are in possession of defendants Nos.1 and 2. It was further averred in the plaint that the latters are receiving Rs.20000/ - rent of tw elve shops since August 2004 and besides the
properties the amount of rent of twelve shops is also yet to be distributed amongst the legal heirs. The plaintiff severally approached the defendants Nos.1 and 2 and demanded her 'Sharai' share but the defendants Nos. 1 and 2 denied the same on one or the other pretext, hence the suit.
3. The defendants/petitioners contested the suit by way of filing written statement wherein
besides raising certain legal objections claim of the respondent No.1/ plaintiff was re pudiated on
merits as well.
Out of the pleadings, following issues were framed: --
1. Whether only plaintiff and defendants Nos.1 to 3 are entitled for shares in property left by late Sajjad Ali Bakhtiari and Zarina Bakhtiari?
2. Whether the defendant No.1 is alone entitled for Rolex wrist watch, two diamond
rings and one Rifle 12 Bore left by late Sajjad Ali Bakhtiari?
3. Whether defendants Nos.4 and 5 are not entitled for any share in the movable and immovable properties left by late Sajjad Ali Bakhtiari and Zarina Bakhtiari?
4. Whether all the movable and immovable properties left by late Sajjad Ali Bakhtiari and Zarina Bakhtiari are in possession of defendants Nos.1 and 2?
5. Whether the plaintiff is entitled for relief claimed for?
6. Relief?
The plaintiff produced three PWs and got recorded her own statement on oath. In rebuttal
the defendants Nos. 1, 2, 4 and 7 produced seven DWs and defendant Zulfiqar, appeared and recorded his statement.
4. The trial court, after hearing the parties and evaluat ing evidence vide judgment/decree
dated 27.07.2009 decreed the suit filed by the plaintiff. The defendant/petitioner being aggrieved and dissatisfied of the above referred judgment/decree challenged the same in appeal before the learned District Judge, Que tta which was later on transferred to the file of learned Additional
District Judge -IV, Quetta but the learned Appellate Court dismissed the appeal vide
judgment/decree dated 13.02.2015, hence instant Revision petition.
5. On 27.10.2017 when the case was f ixed for regular hearing counsel for the petitioner did
not turn up nor any reason for his absence was conveyed to the Court, however, in the interest of
justice the case was adjourned to 30.10.2017. On this date the position remained the same because the learned counsel for the petitioner remained absent without any justifiable excuse, as such, the case was adjourned to 03.11.2017. On this date though learned counsel for the petitioners attended the court but requested for adjournment which was acceded to and the case was adjourned to 07.11.2017. On this date despite repeated calls learned counsel for the petitioners remained absent. Again in the interest of justice and to provide opportunity of hearing to the petitioners the case was directed to be fixed f or 08.11.2017 but on this date as usual the
learned counsel for the petitioners failed to attend the court, thus, I have no other option but to himself peruse the record and decide the case on merits because the case cannot be kept pending for an indefinit e period particularly when the learned counsel for the petitioners usually remains
absent without any communication to the court or justifiable reason.
6. I perused the entire record including the memo of petition wherein mainly the
judgments/decrees have been assailed on the ground that the Respondent No.1/plaintiff failed to
prove her case before the Courts below by way of producing straight forward and trust worthy evidence but both the courts below erred in law by decreeing the suit and dismissing the a ppeal
filed by the petitioners without any justifiable reason. Petitioners also attacked upon the judgments/decrees impugned on the ground that the evidence produced by the Respondent No.1/plaintiff was not of such a standard/quality which could have been made basis for decreeing the suit but the courts below illegally, unlawfully and without any justification gave
undue weight to the evidence produced by the plaintiff/ Respondent No.1 which has caused grave miscarriage of justice to the petitioners. It was next mentioned in the memo of petition that
the judgments/decrees impugned herein are result of misreading and non- reading of evidence,
thus not sustainable under the law. The evidence produced by the petitioners/defendants was sufficient to disprove the case of plaintiff/Respondent No.1 but both the Courts below failed to take into consideration the evidence produced by the petitioner. The courts below wrongly held that the Respondent No.1/plaintiff proved her case by producing oral as well as documentary
evidence and that she is 'Sharai' shareholder in the entire properties left behind by her late father and mother as mentioned in para -5 of the suit.
On the other hand learned counsel for the Respondents strenuously opposed the
submissions made by the lea rned counsel for the petitioners/defendants and argued that there are
concurrent findings of facts and law arrived at by two courts below which cannot be disturbed by this Court in exercise of Revisional jurisdiction unless it is proved that the same are s hocking,
perverse, artificial and fanciful. The judgments/decrees passed by courts below can only be interfered with by this Court when there is apparent misreading or non- reading of evidence. In
the instant case the learned counsel for the petitioners/def endants failed to show any misreading
or non- reading of evidence, as such, the judgments/decrees impugned herein are not open to any
exception. Learned counsel emphasized that the Respondent No.1/plaintiff successfully proved her claim by producing straigh t forward, trustworthy and confidence inspiring evidence,
therefore, there was no other option for the courts below except to decree the suit filed by the
Respondent No.1/plaintiff as well as to dismiss the appeal filed by the petitioners. Neither any
illegality or irregularity nor misreading and non- reading of evidence could be pointed out by the
learned counsel for the parties in the judgments/decrees impugned nor could they prove that the Courts below omitted to take into consideration a specific piece o f evidence. On the contrary
both the courts below after proper appreciation of entire material/evidence available on record
and taking into consideration all the legal as well as factual aspects of the case passed well -
reasoned judgments/decrees which are not open to any exception.
7. I have considered the arguments advanced by the learned counsel for the
Respondents/plaintiffs and perused record of the case as well as the impugned
judgments/decrees. It may be noted that this Court while exercising Revision al jurisdiction is not
permitted to re -open or dilate upon merits of the case rather while exercising jurisdiction under
Section 115, C.P.C. this Court has to confine itself only to the law points involved in the matter or any specific portion of evidence if omitted by the courts below. It may further be observed that the concurrent findings of facts and law arrived at by two courts below can only be disturbed if this Court comes to the conclusion that the same are illegal, unlawful based on misreading, non-reading of evidence shocking, perverse, artificial and fanciful. In the instant case perusal of
record shows that the petitioners failed to point out any above referred grounds for interference
in the judgments/ decrees impugned and even in the memo of pe tition the petitioners could not
point out any illegality and general type of grounds have been raised which while hearing of a
Revision petition is not permissible. In this regard reliance can be placed on 2015 SCMR page 1091. Relevant portion therefrom i s reproduced herein below: --
"There are concurrent findings of fact recorded by the learned courts below against the appellants. This Court in Muhammad Shafi and others v. Sultan (2007 SCMR 1602)
while relying on case- law from Indian jurisdiction as well a s from the Pakistani
jurisdiction has candidly held that this Court could not go behind concurrent findings of fact " unless it can be shown that the finding is on the face of it against the evidence or so patently improvable, or perverse that to accept it could amount to perpetuating a grave
miscarriage of justice, or if there has been any misapplication or principle relating to appreciation of evidence or finally, if the finding could be demonstrated to be physically impossible." No such thing could be br ought on record to warrant interference by this
Court."
Same view was taken in another case reported in SCMR 2014, page 1477.
"Even otherwise, this Court in the case of Kanwal Nain v. Fateh Khan (PLD 1983 SC 53) has held that concurrent findings of two Courts below are not open to interference in limited revisional jurisdiction of the High Court, albeit, it may be, to some extent, erroneous on point of fact and point of law, both."
8. The perusal of record reveals that the respondent No.1/plaintiff proved t hat she is the
legal heir/'Sharia' shareholder in the entire properties left behind by her late father and mother. The plaintiff proved her case by examining three PWs who furnished straight forward, trustworthy and confidence inspiring evidence and the evidence produced by the respondent No. 1/plaintiff could not be rebutted by the petitioners/defendants. Perusal of evidence produced by the petitioners reveal that the same is not of such standard which could have constituted grounds
for dismissing the suit of respondent No.1//plaintiff thus, there was no other option for the courts
below except to decree the suit as well as to dismiss the appeal. The PWs produced by the
respondent No.1/plaintiff fully supported her stance. Both the Courts below after thrashing out the oral as well as documentary evidence have held that the respondent No. 1/plaintiff is entitled in the legacy left behind by her father and mother whereas the petitioners in the memo of petition
as well as the annexed documents could not produce /show a single oral as well as documentary
evidence which could have satisfied conscious of the Court to form a different view than that of
Courts below or to substitute the findings of the Courts below. Moreover, the learned counsel for respondents relied upon an unreported judgment of Hon'ble Supreme Court passed in Civil
Appeal No.2688/2006 where in a similar case it was held as under: --
In the evidence coming on record on behalf of respondents Nos.4 and 5 there is no mention of any nature whatsoever tha t the respondents were bona fide purchasers and
that they have made an investigation that Muhammad Akbar was only survived by three sons who were entitled to his inheritance or that any other legal heir of Muhammad Akbar such as widows/daughter have either gifted their share in the estate left by
husband/father or had relinquished their share in any manner whatsoever. There can be no two opinions on the subject that the legacy/inheritance of the deceased Muslim would automatically open the moment he shuts his eyes. Further there can be no jibe/discord that all those legal heirs who are ordained in the shariah law automatically would become entitled to such inheritance and legacy. And if there are more than one legal heirs all of them shall be co -owners/joint owners of the property. This has even been acknowledged
by the learned trial court which decision has been upheld by the other courts that the plaintiffs were the co -owners of the property. The courts have further held that the sale
made by the respondent s Nos.1 and 2 was unauthorized; obviously that being so the legal
and natural consequence was to declare the transaction as null and void. The rule of estoppel would come into play against the appellants because it is not shown that they were aware of the first inheritance mutation which got effected by their sons/brothers whereby they were excluded from the inheritance and it is normally not within the knowledge of the womenfolk of our society whether there names after the death of their predecessor have b een incorporated in the relevant record or not. The incorporation in the
name of the man is assumed generally to be for the benefit of their womenfolk as well. In such a case, neither can the rights of the womenfolk be taken or treated to be relinquished or waived nor would the rule of estoppel be applicable. In the instant matter the appellants cannot be held to have made their sons/brothers the ostensible owners and further by giving them their consent to sell the property in question in terms of Section 41. The only reason given by the learned trial court (as affirmed by the upper forum) that the sons/brothers in their written statement have supported the case of the appellants and thus it shall be assumed that the transaction was collusive and that the a ppellants should
be compensated from the amount of money/ consideration they have received is totally incorrect. Why would they be compensated in terms of money when they had filed the suit for the purposes of share in the corpus of the property which had been left by their husband/father. How can there be a thrust put forth by the court to receive the same compensation from the sons/brothers. Why has the court pressured that even if sale was unauthorized, the appellants have consented thereto because there is no material to that
effect. Once they have not consented they would be entitled to what they have asked for or anything in the alternative. It may be pertinent to mention here that the two judgment
reported as Ramcoomar v. Mac -queen ((1872) 11 Beng LR 46, 52, IA Sup 40, 43) and
Cairncross v. Lorimer ((1860) 3 Macq 827, 829) are also relevant to throw some light on
the subject which are to the effect that this rule operates as estoppel against the real owner, but we are not satisfied that the ingredients and the requirements of estoppel have
been proved by the respondents. (In light whereof we accept this appeal, set aside the
judgments and decrees of the learned courts below to the extent that the appellants should
be entitled to compensation recoverable from their sons/brother who have unauthorisedly
sold their share, rather we allow the suit by annulling the sale made in favour of
respondents Nos. 4 and 5 by the other respondents vide mutation No.124 and hold that the appellants for all intents and purposes shall be deemed to be the co -sharers of the
property and shall be entitled to have the partition of the property by metes and bounds according to their share.)
Likewise in the judgment titled as "Ghulam Ali v. Ghulam Sarwar Naqvi (Mst.)" reported
in PLD 1990 SC 1 the Hon'ble Supreme Court held as under: --
It is not for the first time that it is being so held. Even earlier commentators on Islamic Law (its inheritance branch in particular) have indicated the same approach with reference to some decided cases. The heir in possession was considered to be in
constructive possession of the property on behalf of all the heirs in spite of his exclusive
possession, e.g. the possession of the brothers would be taken to be the possession of their sisters, unless there was an express repudiation of the claims of the sisters by the brothers. Hyder Khan v. Chanda Khan (501 IC 691 (All).
While dealing with express repudiation and ouster, it was observed that; "There cannot be
ouster without a demand and a refusal, or without a clear declaration brought home to the
knowledge of the co -sharers that lesser profit were being paid because the others were
being ousted from the remainder of the share. A mere omission to pay profits does not in itself constitute ouster, and s till less so, when something though not the whole, is paid.
The mere partition among the males without reference to the female heirs does not mean much in the shape of ousting them from their rights. Circumstances may exist in which an inference of knowled ge can be drawn, or in which the laches or negligence of the co -
owners is so great that knowledge will be presumed but a case of that type would have to be exceptional. The law does not penalize a co- owner who relies on the honesty of his co -
sharer, and therefore ordinarily the mere fact that he does not take the trouble to assert his rights as he may be entitled to, would not justify an inference of ouster." (Muhammad Aminuddin v. Md. Abdur Rahman 1941 NLJ 467).
Dealing particularly with females it is to b e noticed that: Where one is concerned with
pardanashin Muslim females, different considerations apply from those that apply
between adult males even as regards adverse possession. In the latter case if the possession is neither obtained by force nor by fr aud nor in secret, it does not matter that it
is in fact not known to the person against whom adverse possession is alleged. The law is satisfied if that person would have known had he been acquainted with what was going on in the world. In their case it i s necessary to find not mere adverse possession but
ouster. (Mt. Fardosjahan Begam v. Kazi Shafiuddin 1942 Nag 75, supra).
It is again to be emphasised that on principle, in Islamic law it is not possible to accept
the claims of co -owners/inheritors when t hey are males and females together the former
seeking a right on the basis of adverse possession and ouster against the latter. The comments and precedents referred to above are only illustrative of a principle; which has to be restated more clearly.
The m ain points of the controversy in this behalf get resolved on the touchstone of
Islamic law of inheritance. As soon as an owner dies, succession to his property opens. There is no State intervention or clergy's intervention needed for the passing of the lit tle
immediately, to the heirs.
Thus it is obvious that a Muslim's estates legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the e state by an intermediary is unknown to
Islamic Law of inheritance as compared to other systems. Thus there being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the heirs automaticall y, and immediately in definite shares and fraction. It
is so notwithstanding whether they (the heirs) like it, want it, abhor it, or shun it. It is the public policy of Islamic law. It is only when the property has thus vested in the heir after the success ion opens, that he or she can alienate it in a lawful manner. There is enough
comment and case- law on this point which stands accepted.
Both the courts below after proper appreciation of entire material/evidence available on
record and taking into conside ration all the legal as well as factual aspects of the case passed
well-reasoned judgments/decrees which are not open to any exception, thus maintained.
For the foregoing reasons Revision petition has no force which is accordingly dismissed.
The parties, however, shall bear their own costs.
MH/178/Bal Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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