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Civil Revision No. 679 of 1967, decided on 22nd July 1968.

S. 115 read with Succession Act (XXXIX of 1925), S. 383‑Revision‑Powers of High Court to interfere under S. 115, C. P. C.‑High Court has no powers to inter fere merely because it differs, however profoundly, from conclusions of subordinate Court upon questions of fact or law‑Administra tive Civil Judge dismissing petition under S. 383, Succession Act, 1925, having found in negative as regards alleged fraudulent nature of proceedings or making of false suggestion or concealment of something material‑Held, Administrative Civil Judge having juris diction has decided question of fact raised before him, whether rightly or wrongly‑Interference by High Court in revision under S. 115, C. P. C., in circumstances refused.

N. S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras A I R 1949 P C 156 ref.

Jari Ullah Khan for Petitioner.

M. Nawaz Kasuri for Respondent.

Dates of hearing: 9th and 10th May 1968.

Khawaja Noor Muhammad petitioner brought an application under section 383 of the Succession Act against Namdar respondent in the Court of the Administration Civil Judge, Jhang, praying that the succession certificate issued by the Court in favour of the respondent in respect of the assets of Pir Durki Snah, who had died on the 23rd of March 1960, at Chah Chanduwala, village Sajawal, Tehsil Khanewal, District Muitan, be cancelled. A prayer for a perpetual injunction restraining Namdar respondent from realizing the cash and gold on the strength of the succession certificate from the treasury at Multan was also made. It was stated in the application that the respondent was neither an heir nor a Khalifa nor a Sajjadanashin of Pir Durki Shah deceased arid that he had obtained the succession certificate by misrepresentation and fraud and that the Court of the Senior Civil Judge Jhang, had no jurisdiction to hear the application fur succession certificate became the money and gold was in possession of the deceased at Multau and was lying in deposit in the Government Treasury at Multan. It was also submitted that the petitioner had filed a declaratory suit for grant of a succession certificate as Mutawalli of the Darbar of the deceased Pir, in which the respondent was also a party and that in the said suit, dismissed on the 12th of April 1966, it had been accepted that the respondent was not a Muslim Law heir of Pir Durki Shah and that as the petitioner has been following a remedy in good faith from the 13th of October 1964, to the 12th of April 1966, the application be entertained as within time. The petition was resisted and the following issues were trained by the trial Court:

"(1) Is this petition not maintainable O. P.

(2) Is this petition within time O. P.

(3) Can the petitioner exclude time spent in the prosecution of the civil suit in computing the period of limitation for this petition O. P.

(4) Has this Court no jurisdiction to hear this petition O. P.

(5) Has the petitioner a locus standi to institute this petition

(6) Was the succession certificate in dispute obtained through fraud and misrepresentation and can it be revoked

(7) Relief."

Under issue No. 1 the trial Court found that the petition was maintainable while its finding under Issue No. 5 was that the petitioner had no locus standi to institute the petition. As regards Issues Nos. 2 and 3, the trial Court held that the petition was time‑barred and the time spent in prosecution of the civil suit could not be excluded in computing the period of limitation prescribed for filing the present application. Issue No. 4 was found for the petitioner. As regards Issue No. 6, the trial Court has held that the proceedings were not defective in substance and the statement made by the respondent did not amount to false suggestion or concealment of something from the Court, which misled the Court to grant the certificate. t was also observed that "it is correct that the respondent is not entitled under the law of the land to the grant of the succession certificate but I cannot sit in judgment as a Court of appeal over the order granting the succession certificate to the petitioner (sic) (respondent). Hence I cannot revoke or cancel the succession certificate".

2. The petitioner has come up in revision and it is argued that the trial Court has wrongly held that the petitioner has no locus standi to make the application because the petitioner is a Mutawalli and manager of the Darbar which belonged to the deceased Pir; that the question of limitation has also been wrongly decided because tote time spent in prosecution of the previous civil suit was to be excluded is computing the limitation for filing the present application under section 383 of the Succession Act, and in view of the finding of the trial Court that the respondent was not entitled in law to the grant of succession certificate, the same should have been set aside.

3. The petitioner admits that he is not a legal heir of the deceased. In the circumstances the question as to whether the petitioner has locus stundi to bring this petition comes to the fore. It is an established proposition of law that a mutawalli is entitled to sue fair possession though the property is not vested in him because the right asserted by a suit brought to recover the waqf property held adversely to it, is the right of the waqf itself. In the instant case however, it is not proved on the record that the petitioner is the mutawalli of the Darbar of Pir Durki Shah deceased, because this assertion of his does not go beyond his own statement, with the result that locus standi of the petitioner remains un-established.

4. Coming to the question of revocation, some of the causes for such an order under section 383 of the Succession Act are that the proceedings to obtain the certificate were defective in substance; that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of something material to the case; that the certificate was obtained by means of an untrue allegation of a fact essential in point of lay, to justify the grant thereof, though such allegation was made in ignorance or inadvertently. The words "defective in substance" have been held to mean that the defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings. This has not been established before the trial Court, nor has learned counsel for the petitioner been able to point out any such defect in the previous proceedings. As regards the alleged fraudulent nature of the proceedings or making of a false suggestion or concealment of something material, the finding of the trial Court is in the negative. Again, the petitioner has not been able to establish that the allegation of fact essential in point of law to justify the grant was an untrue allegation.

5. According to N. S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras (AIR 1949PC156) if the High Court is satisfied that (a) the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally or with material Irregularity, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon questions of fact or law. The Administrative Civil Judge has decided the questions of fact raised before him and whether he has decided the same rightly or wrongly, he had jurisdiction to decide the case and even if he has decided wrongly, no case is made out under section 115 of the Code of Civil Procedure. I, therefore, decline to interfere.

6. The revision petition fails and is dismissed. However, the parties are left to bear their own costs.

Petition dismissed.

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