1988 PLP 550 (SCMR)

JAVID IQBAL, J.--This petition for leave to appeal is directed against the judgment of the Lahore High Court, Lahore dated 13 May, 1985 passed in Civil Revision No.360-D of 1982 (treated as Regular Second Appeal No.179 of 1985). Briefly the facts are that the disputed house was transferred by the Settlement Department jointly to Ghulam Mohammad respondent, his brother Mohammad Sharif the present petitioner and their mother Mst Fazal Bibi on 26th October, 1960 and PTO was accordingly issued in their names. Ghulam Mohammad respondent instituted a suit for the partition of the said house on 12th December, 1974 claiming 1/2 share in the house. Mohammad Shaft petitioner contested the suit claiming that Ghulam Muhammad had transferred his share in the said house to him after receiving its price and had executed a document in that behalf on 29th November, 1972. It was further contended by him that before the transfer of the house he and his mother had agreed that the house in question be transferred by the Settlement Department in faupur of Mohammad Shafi as Ghulam Mohammad would receive compensation in lieu of his share. Ghulam Mohammad and his mother had also submitted affidavits before the Deputy Settlement Commissioner giving their consent to the transfer of the said house in favour of Mohammad Shafi. But somehow the Settlement Department transferred the said house jointly in the names of Mohammad Shafi, Ghulam Mohammad and their mother. Mohammad Shafi claimed that in 1967 he was given the exclusive possession of the house and became the sole owner. Thus in the suit for partition filed by Ghulam Mohammad his position was that Ghulam Muhammad was estopped by his conduct to institute the suit. The trial Court after framing issues and recording evidence of the parties as well as hearing them passed a preliminary decree in favour of Ghulam Mohammad. Mohammad Shafi preferred an appeal against the same which was accepted. Thereafter Ghulam Mohammad challenged the appellate judgment in the form of civil revision which was treated as Regular Second Appeal by the Lahore High Court and was allowed with modification, the effect of which was that the preliminary decree passed by the trial Court was restored and Ghulam Mohammad was held entitled to get 4/9th share in the partitioned house. Similarly Mohammad Shafi was also held entitled to 4/9th share whereas the remaining 1/9th share went to the heirs of Taj Din deceased who was ordered to be impleaded as party by the trial Court before proceeding further with the case. The point which required determination in this case was as to whether Ghulam Mohammad had executed the document Ex.D/1 dated 29th November, 1972 in favour of Mohammad Shafi. The trial Court had held that the execution of the said document by Ghulam Mohammad could not be proved whereas the appellate Court held otherwise. So far as the document in question is concerned there were four attesting witnesses to the same and none of these witnesses had been produced by Mohammad Shafi to prove the execution of the said document by Ghulam Mohammad. Ghulam Mohammad had specifically denied the execution of the said document and had contended that his signature thereon were forged. No evidence was brought on the record by Mohammad Shaft to controvert this contention of Ghulam Mohammad., The initial onus to prove the execution of this document by Ghulam Mohammad lay on Mohammad Shaft but he failed to discharge the said onus through evidence produced by him during the trial. Learned counsel for Mohammad Shafi attempted to argue before us that the scribe of the said document namely Inayatullah petition writer was produced. But his testimony has rightly been disbelieve by the Courts below. Since the finding of fact against, Mohammad Shafi is that he could not prove the execution of the said document in his favour, no right or interest in the disputed house as sole owner could be claimed by Mohammad Shafi on the basis of the said document. In that view of he matter in our considered opinion the impugned judgment of the Lahore High Court Lahore calls for no interference. The result is that this petition is dismissed. M.I. /M-330/S Petition dismissed.