2017 PLP 281 (YLR)

MUHAMMAD ALAM, J.

Petitioners/defendants have called in question order dated 11-04-2014 of District Judge Astore, through this petition. Learned first appellate court passed the impugned order in C.F.A. No.29/2013.

2. Respondent/plaintiff filed Civil Suit No.36/2008 in the trial court of Civil Judge First Class Astore, who after completing trial proceedings, passed judgment dated 02-11-2013, as follows:-- Relief. "In the light of my findings on issues 1 to 3, suit of plaintiff to extented of declaration and possession in respect of suit land granted in favour of plaintiff against defendants and defendants are directed to handover possession of suit lands to plaintiff forthwith while suit of plaintiff to extent of recovery of amount on account of Ghala Bati stands dismissed as plaintiff failed in proving this part of his claim. No orders as to cost. File after completion be consigned to record." On appeal (C.F.A. No.29/2013), the learned first appellate court upheld the judgment of the trial court, and feeling aggrieved from the same, petitioners/ defendants have filed this petition.

3. I have heard learned counsel for parties and have gone through the material available on file. It is not disputed that relationship of parties is in accordance with the averments of the pleadings of the parties. In the case in hand, if we read preliminary objection No.5 with the averments of para No.2 of para wise written statements, we find defense of the petitioners/defendants. The only defense taken by the petitioners/defendants is sale of suit land through sale dated 5-7-1995. Through the said plea, petitioners/ defendants have pleaded that they have purchased the suit land from Raja Sajid Ali. Burden of proof of issues Nos.2 to 5 is on respondent/plaintiff while burden of proof of issues Nos.7 to 10 is on petitioners/ defendants.

4. Learned counsel for parties agreed that by taking plea of sale, the petitioners/ defendants have taken burden of proof on themselves. So it is settled that in the case in hand, burden of proof shifted to petitioners/defendants. In my opinion also petitioners/defendants were bound to prove that they are owners of suit land because of sale of suit land to them, and for that purpose, petitioners/ defendants were bound to prove the partition of properties of their father and falling of the suit land in share of the petitioners/defendants. As otherwise, it is not disputed that respondent/plaintiff is real brother of petitioners/defendants. Yet another important aspect of the case is that the two courts below have concurred in the finding that Rs.800/- were paid to the Raja Astore as part price of the lands of share of father of parties, in the lands that were in possession of father of parties as tenant of the then Raja Astore. Moreover, the two important documents, Exh-P/1 and Exh-P/2, which are revenue documents, also show name of respondent/plaintiff with the names of petitioners/defendants. Petitioners failed to show any evidence on the file, showing the sale of suit land in their names.

5. Another point came under discussion before me was comprised of the following two questions:--

1. Whether payment of Rs.800/- in the light of compromise dated 05-07-1995 is a question of fact or question of law or even mixed question of fact and law?

2. Whether plea of purchase of suit land on payment of Rs.800/- by petitioners/defendants is a question of fact or question of law or even mixed question of fact and law? Obviously, the first appellate court is final court for determining of any question of fact, and the case in hand is result of concurrent findings of the two courts below on the above two questions. Learned counsel for petitioners/defendants failed to convince this court that the above two questions are questions of law or mixed questions of fact and law. Otherwise also, counsel for petitioner/ defendants failed to point out any misreading or non-reading of any evidence of either of the parties in coming to the conclusion of concurrent findings by the two courts below.

6. Result is that the petition in hand merits dismissal and stands dismissed. No orders as to costs. This file be consigned to record. ZC/120/GB Revision dismissed.