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Civil Review Petition No. 31‑R of 1977 in Civil Appeal No. 144 of 1970, decided on 10th February, 1980.

-----O. XXVI‑Review‑Grounds raised in review: (i) error apparent on face of record, (ii) some important statements left out and no weight attached to admission made by plaintiff of land in question being sold by son of plaintiff in collusion with defendant, (iii) respondent having died, decree could not have been passed in respect of entire share to his successor, (iv) executing Court may interpret decree as pertaining to entire land‑Questions raised in suit, however, concurrently answered in favour of respondents by trial Court as well as appellate Court and lower appellate Courts taking into consideration all relevant evidence and no justification made out for High Court to interfere with findings of fact in second appeal‑Death of respondent after conclusion of proceedings in suit and appeals, arising therefrom, having no bearing upon correctness of judgment and decree petition dismissed‑‑Consti tution of Pakistan (1973), Art. 185(3)

Ch. Abdur Rehman, Bar‑at‑Law, Advocate instructed by Ch. Akhter Ali, Advocate‑on‑Record for Petitioners.

Nemo for Respondents

Date of hearing: 10th February, 1980.

‑‑This petition is barred by 28 days, but we would condone delay, subject to all just exceptions, for the reasons stated in the application made by the petitioners in this behalf.

The dispute, in this case concerns an area of agricultural land situate in village Mirpur of the Abbottabad Tehsil. It was owned jointly by Mir Abdullah and his son Hayatullah, Mir Abbullah having 23/24th share and the son having only 1/24th share in the land. By means of a mutation entered on the 19th of May, 1965, the entire area was stated to have been sold by the owners in favour of one Sultan Khan. On the 1st of June, 1965, the Revenue Officer recorded a note on this mutation stating that both father and son had appeared before him and admitted the sale and the receipt of the sale price amounting to Rs. 23,000. The mutation was eventually attested on the 10th of June, 1965. It appears that subsequently the vendee Sultan Khan agreed to sell this land to one Muhammad Ali, who is now represented by the petitioners.

On the 21st of July, 1965, Mir Abdullah instituted a suit praying for a declaration that he was the owner of 23/24th share in the land, and that he had never sold the land to Sultan Khan, and, accordingly, the attestation of the said mutation was as a result of fraud practised by Sultan Khan. Hayatullah was also impleaded as a defendant.

The suit was decreed by the trial Court on the 10th of January, 1967, holding that the plaintiff had not sold the land to Sultan Khan; that he never appeared before the Revenue Officer; that the mutation was attested by practising fraud on the plaintiff; and, accordingly, he was not bound by the mutation. Appeal filed by Sultan Khan and Muhammad Ali was dismiss ed by the learned Additional District Judge by his order dated the 24th of May, 1967. Thereupon Sultan Khan and Muhammad Ali filed the second appeal in High Court, which was accepted, the concurrent findings of the two Courts below were reversed, and the plaintiff's suit was dismissed.

Aggrieved by this judgment of the High Court, the plaintiff filed an appeal in the Supreme Court, which was accepted by this Court by its judgment dated the 31st of March, 1977. It was held that as the two Courts below had fully considered all the evidence of the parties in coming to their findings on questions of fact, the High Court's appellate jurisdiction in second appeal was not attracted under sections 100 and 101 of the Code of Civil Procedure. As a result, the judgment and decree of the trial Court were restored.

In support of this review petition, it is submitted by Ch. Abdur Rehman, learned counsel appearing for the heirs of Muhammad. Ali, the second vendee, that there is an error apparent on the face of the record inasmuch as it is incorrectly stated in the order under review that the learned Additional District Judge had taken into consideration the entire evidence produced by the parties before endorsing the findings recorded by the trial Court. The learned counsel submits that, in fact, some important statements were left out, and no weight was attached to the admission made by the plaintiff that; in fact, the land had been sold by his son Hayatullah in collusion with the defendant. The learned counsel further submits that, in any case, the plain tiff Mir Abdullah having died, Hayatullah has now succeeded to the rest of the land, and, therefore, a decree could not have been passed in respect of the entire share of the plaintiff. Finally, the learned counsel has expressed an apprehension that the executing Court may interpret the decrees as per taining to the entire land and not merely confined to the share of the plaintiff, namely, 23/24th share in the land.

We regret we see no merit in these submissions. The questions raised in the suit were essentially those of fact, and they had been concurrently answered in favour of the plaintiff by the trial Court as well as by the lower appellate Court; and this Court found, on examination of the record, that the lower appellate Court had, indeed, taken into consideration all the relevant evidence, with the result that no justification was made out for the High Court to interfere with these findings of fact in second appeal. We do not see an error in the view taken by this Court, much less any error apparent on the face of the record.

As to the submission that Mir Abdullah plaintiff having died, his land has devolved on his son Hayatullah, who had admittedly sold the entire are in dispute, and, therefore, the original decree could not be maintained, it is enough to say that the death of Mir Abdullah after the conclusion of t proceedings in the suit and the appeals arising there from has no bearing upon the correctness of the judgment and decree made in this case by the trial Court and upheld by us, by the order under review.

There is similarly no basis for the apprehension expressed by the learned counsel that the executing Court may construe the decree as also applying to the share of Hayatullah. We have perused the decree and we find that, it relates only to the share of the plaintiff Mir Abdullah.

For the foregoing reasons, the petition fails and is hereby dismissed.

Petition dismissed.

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