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Civil Petition for Special Leave to Appeal No. 107 of 1975, decided on 25th October, 1980.
(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 15‑1‑1975, in W. P. 422/R/65).
‑‑ Arts. 185 (3)‑Leave to appeal‑New point‑Plea raised before Supreme Court never raised before any of departmental forums Point also of factual nature requiring decision whether a particular person survived his propositus‑High Court also not permitting to raise such question in view of its being not supported by any authentic evidence‑Petition pending for about 5 years and no evidence available to support plea‑No question of remand, held, arose in circumstances and petition for leave to appeal liable to be dismissed.
Hassan Ahmad Khan Kanwar, Advocate Supreme Court and S. Inayat Hussain Shah, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing : 25th October, 1980.
‑It is not necessary to go into the lengthy detail of the litigation through which this case passed and it will be sufficient for our purpose to state that the petitioners, who are sons and daughters of Mst. Jaini, claimed a share in the land in dispute on the ground that they are heirs to the propositus Nazir Ali. It was found that the petitioners were "distant kindred" and as such could not get any share in the land in the presence of the respondents who were "residuaries" of category No. 3 and who as such had a preferential right to exclude them.
2. The petitioners filed a constitutional petition being W. P: 322‑R/65, but without any success as the same was dismissed by the High Court on 15‑1‑1975.
3. The petitioners have come up in a petition for special leave to appeal against the same to this court.
4. Learned counsel could not challenge the finding that his clients belonged to the category of "distant kindred" as against the respondents who were "residuaries" as mentioned above. However, his submission was that the propositus Nazir Ali had a brother Allah Diya who was alive at the time of the death of the propositus. It was submitted that from that point of view as Mst. Jaini was a sister of the respondents (both being children of Allah Diya) therefore she too would succeed simultaneously with the respondent's who were her brothers. It was submitted that in that way the share which should have gone to Mst. Jaini would now devolve upon them. The contention has no merit. The petitioners never raised an such plea before any of the departmental forums and the point being of a factual nature (namely, whether Allah Diya survived the propositus) we are not prepared to allow it to be urged at this late stage of the case. especially when the High Court also did not permit them to raise it particular when it was not supported by any authentic evidence. The petition has remained pending in this Court for about five years and until mow there is nothing with the petitioners to support their aforesaid plea. Learned counsel then requested for remand of the case on this point but as stated above there is no legal justification to do so. We hold accordingly.
5. The result is that this petition has no merit and is dismissed.
Petition dismissed.
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