2006 PLP 1470 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

The petitioner seeks leave to appeal against judgment, dated 15-1-2003, passed by the Lahore High Court, Lahore in Civil Revisions Nos.1459 and 1548 of 2000.

2. The disputed property is a four Marla house which was originally owned by one Karam Din. The respondent Muhammad Rafique instituted a suit for possession whereas the petitioner also filed a suit for declaration in respect of the suit property. The respondent Muhammad Rafiq claimed that the original owner Karam Din had sold the suit property in favour of Muhammad Boota (the predecessor-in-interest of the respondents Nos.2 and 3) by way of a registered sale-deed, dated 13-8-1946. Muhammad Boota then sold it to the respondent Muhammad Rafique. On the other hand, the petitioner claimed to have purchased the suit property with possession from Niaz Ali son of its original owner Karam Din, through an agreement to sell, dated 10-12-1946. The civil suit of the respondent No.1 for possession of the suit property was dismissed whereas the one for declaration filed by the petitioner was decreed by the Senior Civil Judge, Gujrat, by judgment and decree, dated 11-5-1999. The respondent preferred separate appeals thereagainst which were allowed by the Additional District Judge, Gujrat by consolidated judgment and decree, dated 22-5-2000 whereby the judgment and decree, dated 11-5-1999 of the trial Court were reversed. The petitioner, therefore, filed Civil Revisions Nos.1459 and 1548 of 2000 which were dismissed by a learned Single Judge of the Lahore High Court, Lahore, by a common judgment, dated 15-1-2003. Hence these petitions for leave to appeal.

3. The learned counsel for the petitioner argued that the petitioner was proved to be a vendee in possession of the suit property by virtue of agreement to sell (Exh.P.I) which document was more than 30 years old. The presumption of genuineness and correctness was attached to the said document (Exh.P.1) under Article 100 of the Qanun-e-Shahadat Order, 1984. Even otherwise, the possession of the petitioner over the suit property for last more than 48 years was adverse to the respondents. Therefore, the suit of the respondent No.1 was barred by limitation. It was argued that proceedings under section 145, Cr.P.C. had also been taken by the Magistrate in which the possession of the petitioner over the suit property was restored. The respondent did not challenge the order of the Magistrate passed under section 145, Cr.P.C.

4. On the other hand, the learned counsel for the respondent No.l argued that both the First Appellate Court as well as the High Court had recorded concurrent findings of fact that the registered sale-deed, dated 13-8-1946 was duly executed by the original owner Karam Din in favour of Muhammad Boota for the sale of the suit property for a valuable consideration. The alleged execution of agreement to sell, dated 10-12-1946 (Exh.P.1) by Niaz Ali had not been proved in accordance with law nor he was shown to be the owner of the property at the time of execution of the same. It was next contended that during life time of Karam Din, his son Niaz Ali had no business to execute (Exh.P.1) as he was not possessed with any right or title over the suit property at that time. It was further pointed out that Exh.P.l was an afterthought and a fabricated document and the petitioner had not produced the same during the proceedings under section 145, Cr.P.C.

5. We have heard the learned counsel for the parties at length and have also perused the evidence on record. We find that both the Courts recorded concurrent findings of fact. The High Court had correctly observed that the petitioner had not been able to show that Niaz Ali son of Karam Din, from whom he was claiming the execution of agreement to sell (Exh.P.1), was owner of the suit property. The petitioner had failed to produce evidence as strong as that of the respondent Muhammad Rafique who had duly proved the execution of registered sale-deed, dated 13-8-1946 (Exh.D.2) by Karam Din and also document Exh.D.2. Even the agreement to sell, dated 10-12-1946 allegedly executed by N'az Ali was subsequent to the registered sale-deed (Exh.D.1) duly executed by Karam Din, the original owner of the suit property. Needless to say that the proceedings under section 145, Cr.P.C. were subservient to the determination of civil rights by the civil B Courts. The petitioner did not produce Exh.P. 1 at any time before the Assistant Commissioner, Kharian during proceedings under section 145, Cr.P.C. Ordinarily, this Court does not interfere with findings of fact as recorded by the High Court in the absence of any misreading or non-reading of material evidence on record. The impugned judgment does not suffer from any legal infirmity so as to warrant interference by this Court. Even otherwise, this is not a fit case for grant of leave to appeal.

6. For the foregoing reasons, we do not find any merit in these petitions which are dismissed and leave to appeal is refused accordingly. M.H./M-125/SC????????????????????????????????????????????????????????????????????????????????? Petition dismissed.