1998 PLP 230 (SCMR)

MUNAWAR AHMAD MIRZA, J.

This petition for leave to appeal is directed against judgment/decree dated 5th. December, 1995, passed by Lahore High Court, Lahore.

2. Dispute relates to landed property measuring 590 Kanals and 11 Marlas situated in Chak No.37, Tehsil Ferozewala, District Sheikhupura (hereinafter referred as 'Suit Land'). Towards 29th April, 1980, Rehmat Ali (Predecessor-in interest of petitioners Nos. l to 6) and Sadiq Ali (petitioner No.7) instituted a declaratory suit No.549/1 before Civil Judge 1st Class, Ferozewala, District Sheikhupura, challenging validity of sale transaction concerning 'suit land' effected during May, 1933, on the ground of having been procured by fraud. It is the case of petitioners that late Ghulam Muhammad father of plaintiff Rehmat Ali and Sadiq Ali (in Suit No.549/1) had mortgaged 'suit land' with Hazoor Bakhsh for a consideration of Rs.10,000 and carried out Mutation No.24 dated 23rd May, 1933. According to averments in the plaint, subsequently Rehmat Ali and Sadiq Ali transferred their mortgage right to Sultan Ahmed (predecessor-in- interest of respondents Nos. l to 14); but fraudulently sale-deed was got executed on 28th August, 1933. Later, 'suit land' was further sold to respondent No. 15 (Pir Bakhsh) through Mutation No.35 dated 27th May, 1938. Again, 'suit land was sold by respondent No. 15 to Col. Mazhar Hussain (predecessor-in-interest of respondents Nos. 16 to 18) through registered sale-deed on 9th June, 1964. Petitioners have asserted that transaction in favour of Sultan Ahmed (predecessor of respondents Nos. l to 14) and subsequent transaction regarding 'suit land' are without lawful authority being product of fraud, therefore, do not confer any valid title upon respondents/purchasers. The suit was contested by respondents 16 to

18. Detailed written statement was filed repudiating the averments of plaint. Objection concerning bar of limitation, validity of sale transaction and maintainability of suit were also specifically raised Considering the pleadings learned Civil Judge 1st Class, Ferozewala (District Sheikhupura) framed nine issues and gave the parties opportunity to substantiate their respective claims. Petitioners adduced four witnesses, including petitioners Bashir Ahmed and Sadiq Ali, in addition to various documents for supporting their stand; whereas respondents in rebuttal have examined three witnesses, including attorney Asghar Ali Shah, besides documentary evidence. Petitioners through testimony of P.W.1 Jan Muhammad and P.W.2 Hakim Ali have attempted to show that 'suit land' was factually mortgaged in favour of Sultan Ahmed, but same had been given colour of sale. The stand taken by the petitioners was unequivocally refuted by witnesses of respondents. Learned trial Court on appraisement of the evidence dismissed the suit by means of judgment/decree dated 21st January, 1988. Aggrieved from above decision petitioners preferred Regular First Appeal No.40 of 1988 before Lahore High Court, which was eventually rejected by judgment/decree dated 5th December, 1995. above referred judgments/decrees of Courts below have been assailed through this petition.

3. Mian Nisar Ahmed, Advocate Supreme Court, for petitioners, strenuously urged that both the Courts below have completely misappreciated the evidence and misconstrued law, thus ignoring facts and circumstances of present case. It was contended that fraudulent action of transferring 'mortgage-rights' by manipulating its sale transaction, has been substantiated but Courts below seriously erred in declining to grant decree prayed by the petitioners.

4. We have carefully examined the record and considered arguments advanced by learned counsel for petitioners.

5. Firstly, it may be seen that testimony of P. W.1 Jan Muhammad and P.W.2 Hakim Ali conveys oral version concerning nature of transactions. Even otherwise, statements of these witnesses relating to material is apparently inadmissible being hearsay. Their depositions do not convincingly support the stand taken by petitioners about nature of transaction. There does not exist I adequate material on record which may effectively rebut documentary evidence produced for establishing factum of sale to Sultan Ahmed and subsequent purchasers. Both the forums below have exhaustively considered entire evidence and after proper application of mind has rejected the claim of petitioners giving cogent reasons. It is well settled that, unless patent illegality, material irregularity, perversity or lack of jurisdiction is disclosed, concurrent findings arrived at by the forums below cannot be lightly disturbed. Thus on re-evaluation of record we are inclined to affirm impugned judgments.''

6. Additionally, petitioners has challenged validity of transaction after almost sixty years. No tangible evidence or plausible cause has been shown for such inordinate delay. Conclusions of both the Courts below as regards question of limitation are well founded. Hardly any error, legal defect or impropriety appears regarding suit being hopelessly barred. The conclusions arrived at in the impugned judgments are unexceptionable,

7. For the above reasons we do not find any substance in the petition which accordingly is dismissed and leave is declined. A.A./N-488/S Leave refused.