1994 PLP 1709 (SCMR)

MANZOOR HUSSAIN SIAL, J.‑‑‑The petitioners through this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, seek leave to appeal against judgment dated 1‑8‑1992, passed by the Lahore High Court, whereby Civil Revision No. 2016/1989, filed by the petitioners was dismissed.

2. The dispute in this case relates to land measuring 255 Kanals 13 Marlas situate in Mauza Gigay Wali, Tehsil Narowal, District Silakot, Ashraf Ali respondent herein, being owner thereof had mortgaged the land with possession to Allah Ditta, predecessor‑in‑interest of the petitioners. On 17‑4‑1969, Allah Ditta filed a suit for declaration with permanent injunction against Ashraf Ali through his attorney Akbar Ali and alleged therein that he had purchased the land from him for a sum of Rs.50,000 including mortgage money, but the defendant had refused to get mutation for sale sanctioned in his favour. During the pendency of the suit Allah Ditta died and was survived by the present petitioners. Akbar Ali appeared in response to summons served upon him and on 3‑5‑1969, filed confessional written statement. The learned Civil Judge seized of the suit issued notice to Ashraf Ali defendant as well. Ashraf Ali also filed written Statement and took up the position that the consented written statement earlier filed by Akbar Ali was without his instruction. It is significant to mention that during the pendency of the suit, the plaintiff, also moved application for passing decree on the basis of compromise (Exh. PA) reached between the parties. Ashraf Ali defendant .denied the execution of the compromise deed nevertheless the learned Civil Judge, upheld the compromise and decreed the suit. On appeal the compromise deed was held to be forged document by the Additional District Judge and the case was remanded to the trial Court for disposal of the suit on merits. The petitioners challenged that decision in appeal which was dismissed on 18‑9‑1985, by the Lahore High Court.

3. In post remand proceedings, the learned trial Court decreed the suit on 15‑7‑1986, holding that Ali Akbar was authorised to sell the land and Ashraf Ali defendant was bound by the sale. On appeal the learned Additional District Judge on 16‑9‑1989, set aside the judgment and decree of the trial Court and dismissed the suit. The petitioners challenged that decision in revision which was dismissed vide impugned judgment passed by the Lahore High Court. Hence this petition for leave to appeal.

4. Learned counsel for petitioners contended that Akbar Ali as an Attorney of Ashraf Ali competently alienated the property in dispute in favour of the petitioners long before his authority to do so was revoked by the owner/defendant. It was further contended that the attorney had received consideration of sale of the land in dispute as such the transaction was complete, the learned First Appellate Court as well as the High Court erred in holding that transaction of sale had not taken place.

5. We have considered the contention raised by learned counsel for petitioners and have also perused the record. The learned Additional District Judge as well as. learned Single Judge of the Lahore High Court after evaluating evidence available on the file found, as of fact that the suit filed by Allah Ditta predecessor‑in‑interest of the petitioners was collusive with a view to defraud Ashraf Ali the owner of land in connivance with Akbar Ali his attorney. This finding is based on cogent reasons. for instance the frame of the suit, the non‑production of the receipt in token of the payment of amount, the written statement filed by Akbar Ali without consent and knowledge of Ashraf Ali respondent, non‑receipt of notice dated 8‑4‑1969 by Akbar Ali, wherein Ashraf Ali had revoked his authority to act as his attorney and neither the transaction was through a registered deed nor a mutation of sale was entered and attested for about a year from the date of sale.

6. In our estimation this is not a fit case for grant of leave to appeal to up‑set the concurrent findings of fact reached by the Courts below, after proper appraisal of evidence on the record. In consequence, this petition is dismissed and leave is refused. AA./G‑432/S Leave refused.