2004 PLP 563 (YLR)

The learned trial Court dismissed the suit vide judgment and decree dated 10-4-2002. The respondent-plaintiff being aggrieved filed an appeal before the learned Additional District Judge, Mandi Baha-ud- Din, who accepted the same vide impugned judgment and decree dated 24-10-2003. Hence, the present revision.

2. The learned counsel of the petitioners submits that judgments of both the Courts below are at variance. The First Appellate Court failed to advert the reasoning of the learned trial Court, therefore, the judgment of First Appellate Court is not sustainable in the eye of law. In support of his contention, he relied upon the following judgments:-- "Khan Mir Daud Khan and others v. Mahrullah and others PLD 2001 SC 67;" "Muhammad Rafique v. Mst. Rashida Begum 1979 CLC 823"; "Alloo v. Sher Khan and others PLD 1985 SC 382"; "Muhammad Sharif v. Abdul Majid 1982 CLC 208"; He further submits that this Court has ample powers to reappraisal of evidence while exercising powers under section 115, C. P. C. In support of his contention, he relied upon "Mst. Ameer Begum v. Muhammad Naeem Khan PLD 2000 SC

839. He further submits that the respondent did not mention specific allegation qua fraud committed by the petitioners with the respondent, but the First Appellate Court did not consider this fact in its true perspective. In support of his contention, he relied upon the following judgments: "Messrs Dadabhoy Cement Industries and others v. National Development Finance PLD 2002 SC 500"; "Khalil-ur-Rehman v. Mst. Haleem Khatoon PLD 2001 Lahore 3". He further submits that the First Appellate Court erred in law to discard mutation of gift No.522 dated 18-9-1990 merely on the ground that the same sanctioned in the estate in which the property in question, was not situated which is not in accordance with law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:-- "Muhammad Ishaq and others v. Ghafoor Khan and others 2000 SCMR 519". "Manzoor Hussain and others v. Muhammad Siddique 2000 CLC 623". He further urges that the respondent-plaintiff has voluntarily gifted the land in question in favour of the petitioners. She did not agitate the matter for 6 long years. The sister of the petitioners, Mst. Naseem Akhtar has executed Nikah with son of the respondent Yaseen in accordance with Injunction of Islam. The son of the petitioner got a case registered vide F.I.R. No.20 of 1996 on 7-9-1996 under section 324/34, P.P.C. at Police Station, Qadarabad, District Mandi Bahaud Din. The contents of F.I.R. reveal that the petitioners did not allow to their sister to live with her husband Yaseen, therefore, the respondent-plaintiff filed suit with mala fide intention, but this fact was not considered by the First Appellate Court in its true perspective.

3. I have given my anxious consideration to the contentions of the learned counsel of parties and perused the record.

4. It is settled principle of law that first Appellate Court is well within its right to reappraisal of evidence at the time of deciding the appeal. The First Appellate Court after reappraisal of evidence on record has given positive findings that the respondent-plaintiff was Pardahnashin lady and this fact was not considered in its true perspective by the learned trial Court. The petitioners failed to bring on record any piece of evidence, which reveals that at the time of execution of gift qua land in question in favour of the petitioners by the respondent-plaintiff, she had independent legal advice. It is settled principle of law that it is the duty and obligation of the beneficiary of the documents of title to prove the contents of the documents and burden of proof lies on the party, who wants benefit of that documents to establish its genuineness in his favour in accordance with law as per law laid down in "Wali Muhammad's case PLD 1989 Lahore

440. The petitioners as mentioned above, failed to bring on record any evidence that the respondent-plaintiff is not an old illiterate lady, therefore, First Appellate Court was justified to reverse the findings of the learned trial Court; which is in accordance with law laid down by the superior Courts qua principle of illiterate Pardahnashin lady in "Mst. Hafeezan Bibi v. Ali Hussain 1994 SCMR 1194; Ghulam Ali's case PLD 1990 SC 1; Mst. Jannat Bibi's case PLD 1990 SC 642.

5. As mentioned above, the First Appellate Court is justified to reappraise the evidence and give findings against the petitioners while exercising power under section 96 of C.P.C. as per law laid down in "Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood 1985 CLC

657. The Privy Council has also laid down parameters to interfere in the findings of the Courts blow while exercising power under section 115 of C.P.C. in "N. S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 PC

26. The relevant observation is as follows:- "This section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought, to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with maternal irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law. " The judgment of the Privy Council is, followed by this Court in "Board or Intermediate and Secondary Education Lahore v. Syed Khalid Mehmood 1985 CLC 657". It is pertinent to mention here that the judgment of this Court was upheld by the Honourable Supreme Court. The learned counsel of the petitioner failed to bring the case within the principle prescribed by Privy Council in the aforesaid judgment, therefore, I do not find any infirmity and illegality in the judgment of First Appellate Court. In view of what has been discussed above, this revision petition has no merit and the same is dismissed. H.B.T./M-2437/L Revision dismissed.