WAZIKAN (REPRESENTED BY HER LEGAL HEIRS) vs MUHAMMAD ASGHAR AND OTHERS
This matter concerns a dispute over the inheritance and ownership of a house in Rawalpindi, originally owned by one Allah Diya, who died issueless in 1964. His widow, Mst. Waziran, sold the property to the petitioner, Faqir Muhammad. The respondent, Muhammad Asghar, claiming to be the nephew of the deceased, filed a suit for partition and possession. While the trial court initially decreed the suit in favor of the respondent, the appellate court reversed this decision. The petitioner subsequently sought a review of the appellate judgment based on a newly discovered document, which was rejected by the Additional District Judge and the High Court on the grounds that the document was already in the petitioner's possession and knowledge. The Supreme Court examined the petition, finding that the document in question failed to establish the respondent's relationship as a nephew to the deceased. Consequently, the Court held that the review petition lacked merit, affirmed the High Court's reasoning, and dismissed the petition, upholding the finality of the appellate court's decision.
- Does a party have grounds for review under Order XLVII Rule 1 of the Code of Civil Procedure 1908 if the document relied upon was already in their possession and knowledge?
- Can a review petition be maintained when the applicant fails to demonstrate that the evidence was not available or discoverable with due diligence during the original proceedings?
- Order XLVII Rule 1, Code of Civil Procedure 1908
ORDER
1. ' MUHAMMAD HALEEM, ACTG. C. J.-The dispute relates to house No, R/168, situate in Jhangi Mohallah, Rawalpindi. It belonged to Allah Diya, who died issueless in 1964. His widow Mst. Waziran sold it to Faqir Muhammad, the petitioner herein by a registered sale-deed, dated 27th of August, 1974.
2. ' Muhammad Asghar claiming to be a nephew of Allah Diya filed a suit for partition and possession of his 3/4th share as being his nephew. The Senior < Civil Judge, Rawalpindi, decreed the suit on 16th of June, 1979, but on appeal the judgment and decree was reversed. No further proceedings were taken thereafter to challenge the appellate judgment. However, review petition was filed before the Additional District Judge, Rawalpindi, in which reversal of the decree was claimed on the basis of a document, allegedly discovered, by Mst. Waziran, but the learned Additional District Judge held that she had the knowledge of the document as it was in her possession and that it had also been produced in some claim case before the Settlement authority. In this view of the matter, no case for review was made out on its basis. A revision was taken against this order to the High Court and the learned Single Judge, while rejecting the revision application, held:- "The learned counsel also states before me that the document was in the record of Allah Diya who died in 1964. It then came in the possession and custody of Mst. Waziran, his widow, appellant No, 1.
3. In this view of the matter, it cannot be said that Mst. Waziran did not know of this document from 1964 till 1979. The case, thus, did not fall under Order XLVII, rule I, C. P. C. And there is no justification for interference."
4. It is now urged before us that the document, which was executed as far' back as on 26th of October, 1938, goes to establish the relationship of Muhammad Asghar as being a nephew of Allah Diya. A plain reading of this document shows that Shamsh Din the father of Allah Diya had gifted a house to him; while reciting therein that he had two step-sons and two real sons on whom he had already settled the property. There is nothing to show A that this Muhammad Asghar was the son of either of the two brothers of Allah Diya as their names are not mentioned. In this view of the matter, we do not see how this document will be of any assistance to the case of the petitioner, if, at all, it is to be taken into consideration. Aside from it, the High Court has given cogent reasons for upholding the order of the Additional District Judge, Rawalpindi.
5. ' Accordingly, we see no merit in this petition, which is dismissed.