2004 PLP 1359 (SCMR)

TANVIR AHMAD KHAN, J.

Leave to appeal is sought against the judgment, dated 9-3-2000 whereby a learned Single Judge of the Lahore High Court, Multan Bench, Multan, dismissed the Regular Second Appeal bearing No. 896 of 1978, filed by the petitioners upholding the determination of the learned District Judge, Dera Ghazi Khan, dated 23-7-1978.

2. Facts briefly are that the respondents filed a suit for declaration against the petitioners-defendants, claiming ownership of the property in dispute to the extent of 67/176 shares of the sale. Issues were framed. Evidence of the parties was recorded by the learned Civil Judge; Dera Ghazi Khan. Suit filed by the respondent was dismissed vide his judgment, dated 10-9-1977. The respondents filed first appeal which has been accepted by the learned District Judge, Dera Ghazi Khan, through his judgment, dated 23-7-1978. Being aggrieved, the petitioners filed Regular Second Appeal which has been dismissed by the learned Single Judge of the Lahore High Court. Hence, this petition for leave to appeal.

3. We have considered the contentions raised by the learned counsel for the petitioners and have gone through the documents appended with this petition. It is reflected from the perusal thereof that both the parties are successor-in-interest of Hafiz Allah Wasaya who had two wives namely Mst. Majeeda, petitioner No.1 and Mst. Ghulam Aisha, respondent No.

1. The petitioners in their written statement even denied the entitlement as legal heirs of Allah Wasaya. However, they failed in this regard miserably as their own witnesses did not support them in this regard. All the forums have held that petitioners are legal heirs of late Allah Wasaya alongwith respondent. The question to be determined in this case is whether the disputed house belonged to Allah Wasaya, predecessor-in-interest of both the parties or to Muhammad Bukhsh the father of petitioner No.

1. There is no dispute that Muhammad Ramzan father of Allah Wasaya, predecessor-in-interest of the parties, purchased the house from Allah Ditta, D.W.1. Said Allah Ditta, D. W.1 appeared from the petitioners side and accepted this part of the evidence. However, he stated that he heard that Muhammad Ramzan subsequently sold the house of Muhammad Bakhsh, father of petitioner No.

1. This part of the testimony is merely hearsay and could not be substantiated by the Witnesses appeared from the petitioners side. On the contrary, the respondents brought on record convincing testimony of their neighbours namely Abdul Haq, P.W.1, Elahi Bakhsh P. W.2 and Muhammad, P.W.3 who stated in categorical terms that house in dispute was owned and possessed by Allah Wasaya, predecessor-in-interest of both the parties. A question of fact has been determined after scanning the entire evidence by the learned District Judge, Dera Ghazi Khan, which determination has been maintained by the High Court. It would be appropriate to reproduce the determination of the learned Single Judge while upholding the determination of the learned District Judge which are in the following terms:

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3. I have gone through the record of the learned trial Court, with the assistance of the learned counsel. I find that none of the parties produced any document of title pertaining to the suit property. Only the oral evidence was led. I have gone through the said evidence. From the said evidence it is established that Hafiz Allah Wasaya was son of Hafiz Muhammad Ramzan. Allah Ditta, D.W.1 aged 90 years has stated that he had sold the house to the said Hafiz Muhammad Ramzan and the said Ramzan had then sold the house to Muhammad Bakhsh. However, the witness admits that this latter statement is hearsay, D.W.2 is Ghulam Ahmad. He also stated that Muhammad Ramzan had purchased the house which is located next to the house of the witness but then Muhammad Ramzan had sold the house to Muhammad Bakhsh. This witness in his cross-examination has admitted that Ramzan, died one year after partition of the Sub-Continent and that at that time Allah Wasaya was residing in the house with his family, D.W.3 Noor Muhammad has also stated that Muhammad Ramzan father of Allah Wasaya had sold the house to Muhammad Bakhsh for Rs.200, I may also refer here to another portion of the statement of the said D.W.1 wherein he had admitted that he had sold the plot without any construction and that the house was constructed by Muhammad Ramzan."

4. Learned counsel for the petitioners has failed to point out any illegality or legal infirmity in the impugned judgment warranting interference by this Court.

5. Resultantly, for what has been stated above, this petition has no, merit which is accordingly, dismissed and leave refused. M.H./M-82/S Leave refused.