1990 PLP 1027 (SCMR)

CA. Rahman, Advocate Supreme Court and Ch. Ghulam Mujtaba, Advocate‑on‑Record (absent) for Petitioners. Nemo for Respondents. Date of hearing: 28th October, 1989. S. USMAN ALI SHAH, J.‑‑This petition for special leave to appeal has arisen from the judgment of the Lahore High Court, Lahore dated 20‑10‑1986, whereby R.S.A. of the petitioners against the order of the Addl. District Judge, confirming the order passed by the Civil Judge in favour of the respondents was dismissed. Bolaqi was the owner of the disputed land who made a gift of the said land in favour of respondents Nos.1 and 2, vide Mutation No. 290 attested on 28‑8‑1960. Two years after his death Hussain Bakhsh and Allah Bakhsh predecessors‑in‑interest of the petitioners filed a suit against the respondents, claiming themselves to be collaterals in 7th degree of the deceased, challenging therein the validity of the gift as fictitious and the mutation in respect thereof being forged. Respondents Nos.l‑‑3 contested the suit and denied that the ancestral character of the land and the fact that Bolaqi deceased was governed by custom, and averred that the gift in favour of respondents Nos. 1 and 2 was valid and genuine. The learned trial Judge after framing different issues and recording evidence thereof, dismissed the suit of the plaintiffs/petitioners vide his order dated 19‑12‑1986. Both their first and regular second appeals before the Addl. District Judge and the High Court were also dismissed. The main contention of the learned counsel for the petitioners is that issue No.8, the onus of its proof was on the plaintiffs, while during the trial an application was moved by the petitioners asking to frame an issue' whether Bolaqi deceased had made a gift of the property in dispute in favour of the respondents Nos.1 and

2. This application from the brief of the learned counsel was shown to us and vide order sheet dated 7‑3‑1965, issue No.9 was framed to this effect that,) whether the gift deed was fictitious and the onus of proof of this issue was placed on the defendants/respondents. The learned counsel states that the trial Court failed to give its finding on issue No.9. We were taken to the record and find that the counsel appearing for the petitioners who filed the appeal neither himself urged to point out this issue nor it was brought to the notice of the Court, and nowhere in the judgment this issue is mentioned. The Court was conscious to place the burden of onus of proof on the defendants/respondents, but it is quite apparent from the record that this issue i.e. issue No.9 was not raised before the two Courts below. After hearing the learned counsel, we do not think that a case for interference with the impugned judgment has been made out, as we find that the learned trial Judge gave the finding of facts about the existence of the valid gift, in favour of the respondents. Appeal of the petitioners before the District Judge was also dismissed and the concurrent findings of fact were not disturbed by the learned High Court. Under the circumstances, we do not find any substance in this petition, which is hereby dismissed. A.A./M‑1157/S Petition dismissed.