FAZAL MUHAMMAD vs Mst. CHOHARA and others

1. ' WALI MUHAMMAD KHAN, J.---Through the instant petition Fazal Muhammad, petitioner herein, seeks leave to appeal against the judgment of the Peshawar High Court dated 27-1-1992, whereby the revision petition filed by Mst. Chohara and others defendants/respondents was accepted' the judgment of the Additional District Judge dated 12-9-1983 was set aside and that of the trial Court dated 29-11-1982 whereby the suit of the plaintiff/petitioner was dismissed was restored.

2. ' The facts of the case, briefly stated, are that Ghulam Sarwar predecessor-in-interest of the plaintiff/petitioner and defendants/respondents was owner of the suit land measuring 6 Kanals alongwith other land and that he during his lifetime executed a registered will deed dated 10-3- 1966 in respect of the suit land measuring 6 Kanals in favour of the petitioner and since the same was less than 1/3rd of the total entitlement of Ghulam Sarwar therefore, the petitioner laid exclusive claim to the same. The suit was contested by the defendants/respondents and in their written statement they denied the execution of the will deed and dubbed it as fraudulent and fictitious.

3. Necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned trial Judge, vide his judgment dated 29-11-1982, dismissed the suit of the plaintiff/petitioner.

4. However, the appeal filed by the petitioner succeeded and vide judgment of the appellate Court dated 12-9-1983, the judgment and decree of the trial Court was set aside and the suit of the plaintiff/petitioner was decreed. Dissatisfied with the same the defendants/respondents filed a revision petition before the High Court which was heard by the learned Chief Justice of the Peshawar High Court and he, vide his judgment dated 27-1-1992, set at naught the judgment of the appellate Court and restored that of the trial Court. Hence the instant petition.

5. We have heard Mr. Jan Muhammad Khan, Advocate, for the petitioner, and have perused the record of the case. Admittedly the will deed was executed by Ghulam Sarwar in favour of Fazal Muhammad petitioner, who was his presumptive heir and under the Muhammadan Law a will in favour of the heir is invalid unless all the other heirs consent to it. This was so held in the judgment of this Court in case Ihsan Ilahi v. Hukam Jan (PLD 1%7 SC 200) and Muhammad Tufail v. Atta Shabir (PLD 1977 SC 220). All the other heirs of Ghulam tSarwar deceased who were arraigned as defendants in the plaint, in their written statement dated 8-3-1976 disputed the will deed. There is an additional written statement dated 22-12-1980 available on the file allegedly signed by Ghulam Said defendant No,1 wherein the gift deed on behalf of Ghulam Sarwar in favour of the petitioner through registered gift deed has been admitted correct, but it is not clear how this document found its way on the judicial record. There is no mention in the order sheet dated 22-12-1980 of this document. The petitioner could have produced the executant in Court to testify to its correctness or to make a statement in Court acknowledging the petitioner as owner of the suit land on the basis of the impugned wilt deed. The learned High Court for valid reasons kept this document out of consideration and we have no reason to differ with it. The judgment of the High Court does not suffer from any legal infirmity or misreading or non-reading of evidence.

6. ' Resultantly, fmding no merit in this petition, the same is dismissed and leave to appeal is refused.