2005 PLP 1766 (YLR)

(2) Whether the suit is time barred? (3) Whether the suit is bad for non joinder and mis-joinder of necessary parties? (4) Whether the plea of legal estopple stands in the way of the petitioner? (5) Whether the suit is hit by the principle of res judicata? (6) Whether the plaintiff is estopped by his conduct to file the present suit? (7) Whether this Court has got no jurisdiction to entertain the suit? (8) Whether the plaintiff is bona fide purchaser of suit-land on the basis of sale-deed dated 23-1-1979? (9) Whether predecessor of defendants 1 to 5 sold the suit-land in favour of defendant No.6 in consideration of Rs.1,50,000? (10) Whether the plaintiff is entitled for decree prayed for? (11) Relief.

3. Upon consideration of the material available on record and after hearing arguments of the learned counsel for the parties, learned trial Judge decided Issues Nos. 1 and 8 to 10 together and came to the conclusion that plaintiff has not been able to substantiate his claim and the sale-deed (Ex.PW.1/1) has not been satisfactorily proved. Resultantly, suit was dismissed vide judgment and decree dated 19-8-1998. An appeal was filed thereagainst before, learned District Judge Zila Qazi Shangla, which was partially accepted through judgment dated 31-8-1999 and it was held:

5. Feeling aggrieved, Nauroz Khan, Shah Jehan and Fazle Ghani have filed C.R.No.526/99, C.R.582/99 and C.R.No.585/99, which are being disposed of by this single judgment.

6. Mr. Roohul Amin, Advocate, appearing on behalf of Nauroz Khan petitioner contended with force that the judgment and decree of the trial Court is against law, facts and material evidence on record while judgment and decree of the appellate Court to the extent of non- granting of decree for the remaining claim is arbitrary, fanciful, perverse and based on presumption; that the impugned judgments, and decrees are the outcome of mis-reading and non-reading of evidence and both the Courts below have exercised their jurisdiction illegally and with material irregularity, hence the decisions of trial Court as well of the appellate Court to the extent of remaining claim, are perverse and not sustainable in law.

7. Mian Iqbal Hussain, Advocate for Fazle Ghani and Shah Jehan petitioners stressed that judgment and decree of the trial Court is based on correct assessment and appreciation of evidence on record which has wrongly been reversed by the appellate Court.

8. I have heard the arguments of learned counsel for the parties in detail in the light of the material on record.

9. There is no denial of the fact that late Ghulam Said, predecessor-in-interest of Shah Jehan, Said Jehan, Muhammad Iqbal, Sharif Zaman and Sharafat, was the original owner of suit property and Nauroz Khan was inducted in the same as tenant under him. Nauroz Khan claims to have purchased the suit property from Ghulam Said on the basis of sale-deed dated 23-1-1979. Nauroz Khan has brought nothing on the file to substantiate his claim. The sale-deed has not, been satisfactorily proved. The witnesses produced by. him have not demonstrated complete unanimity on material particulars of the case. The onus was heavily placed on Nauroz Khan to prove the factum of purchase but he has miserably failed to discharge the same. It is an established principle of `Qanun-e Shahadat' that a person who asserts/alleges a particular fact and wants the Court to believe such fact exists, he shall be required to prove the existence of such a fact. It has also come in evidence that after the demise of Ghulam Said, his sons Shah Jehan and others sold the suit property in favour of Fazle Ghani on the strength of Mutation No.42 in lieu of Rs.1,50,000 and handed over possession of the same to him. Shah Jehan and his brother, sons of late Ghulam Said are accused of having played fraud on Nauroz Khan by way of transferring the suit property in favour of Fazle Ghani. The allegation has not been proved. After the demise of Ghulam Said, Shah Jehan and his brothers inherited the property in question and subsequently sold the same to Fazle Ghani. No fraud appears to have been committed in the transaction nothing has been brought on the file to doubt the credentials of Shah Jehan and his brothers in entering into a deal with Fazle Ghani. The learned appellate Court has proceeded on wrong premises to hold otherwise. The material on record has not been properly assessed and taken into consideration. The findings recorded to this effect cannot be allowed to remain intact. The same are hereby reversed.

10. Pursuant to above, Civil Revision No.526/99 filed by Nauroz Khan petitioner, having been found bereft of merit is dismissed with no order as to costs. However, C.R.No.582/99 and 585/99 preferred by Shah Jehan and Fazle Ghani petitioners are accepted and the impugned judgment of the Appellate Court the extent of reversal of the trial Court's judgment and to decree is set aside and the judgment and decree dated 19-8-1998 of the trial Court is restored with no order as to costs. M.B.A./378/P Order accordingly.