1994 PLP 966 (SCMR)

SHAFIUR RAHMAN, J: ‑‑The petitioners/defendants in a civil suit seek leave to appeal against the judgment of the Lahore High Court whereby a civil revision petition was accepted, the judgment of the First Appellate Court was set aside and that of the trial Court restored.

2. On the death of Mst. Rasoolan in 1970 or near about his two daughters and a nephew approached the Revenue authorities for getting mutated the land which they thought was owned by her. It was then that they learnt that Mst. Rasoolan had already transferred her entire property in favour of the petitioners' predecessor‑in‑interest Bahawal and the transfer was sanctified by a judgment of the Civil Court. These heirs then instituted a civil suit. The trial Court on the basis of two material facts allowed the relief to the plaintiffs. The first was that the Finger Print Expert had deposed that her thumb‑impressions were not there on the written statement in which the claim of the petitioners in the earlier suit on the basis of which decree was passed. The second was that the entire circumstances attending the sale, the institution of the suit, the engagement of the lawyer, the admission of the claim of the petitioners on the very first date of hearing and the possession of the plaintiffs made it against the decree.

3. The appellate Court excluded the thumb‑impression from consideration but held that the evidence otherwise in the form of the decree was sufficient and allowing the appeal dismissed the suit.

4. In revision, the High Court had a difficulty which it expressed in the following words:‑‑ "In ordinary circumstances, the course suggested would have been the appropriate course, but in the existing circumstances and state of record, I am not prone to remand the case for giving it another long lease of life, particularly, when even after excluding the opinion of the Finger Prints Expert, there was sufficient evidence available on record for final determination of the case on merits. As was clear from the reference to the evidence taken note of in the preceding paragraphs, neither sale of the property‑in‑dispute nor payment of sale price for it were adequately proved and established. Similarly, it was not proved on record that Mst. Rasoolan had appointed the Advocate and filed the concessional written statement admitting the sale of her property and receipt of sale consideration in respect of it." 5: It was in this background that by reference to all factors other than those of identity of thumb‑impression the High Court recorded the impugned finding.

6. The learned counsel has very ably taken us through the jurisdictional aspect of the case in order to emphasize that once the thumb‑impression was removed from the scene and formed as part of the evidence, the decree in respect of the disputed property passed earlier in favour of the petitioners' predecessor‑in‑interest would remain intact. There would be no shifting of the onus as such to the petitioners to prove or disprove the other factors negativing the sale in his favour.

7. We have taken an overall view of the case. On 'the revisional aspect of the jurisdiction of the High Court the High Court. itself has admitted its limitation and the necessity for going into the merits of the case. That does not erode the general principle governing the civil revisions. In cases exceptional in nature a deviation is possible and at times necessary. In this particular case it became necessary because the discussion in the trial Court's judgment was more sound than in the First Appellate Court's judgment. The entire case in the proper perspective of the evidence on record has been looked into. When it was done the High Court came to the proper conclusion with regard to the claim of the plaintiffs. There are a number of factors, as already taken note of, which could justifiably prompt the High Court to reach the conclusion to which it did.

8. No case is made out for our interference. Hence, leave to appeal is refused. A.A./B‑222/S Leave refused.