2007 PLP 342 (MLD)

SYED ASGHAR HAIDER, J.

One Rehmat Ali was allottee of 1200 kanals of agriculture land under Tube-well Sinking Scheme he appointed one Sarfraz as his general attorney on 18-3-1971. qua 800 kanals, out of this land. Pursuant thereto, the attorney executed an agreement on 27-2-1975, in favour of Ghulam Akbar and others, possession of the disputed land was also Banded over to them and they were required to make payment in instalments for proprietary rights, this was done by the petitioners. On 24-2-1990 the proprietary rights were conferred under section 9 of the Colohieation of Government Lands Act in favour of the petitioners through Rehmat Khan. This transfer was challenged by respondents Nos.4 to 8 before the Commissioner and the petition was accepted vide order, dated 16-5-1990, thereafter a revision petition was filed by the present petitioners before the Member Board of Revenue, which was dismissed on 20-3-1995. Aggrieved thereof the petitioners filed the present suit for declaration or in alternate specific performance challenging the grant of proprietary rights to Rehmat Khan, this suit after contest was dismissed on 30-6-2001, the petitioners preferred an appeal which too was dismissed on 26-6-2004, aggrieved thereof the petitioners have filed the present petition.

2. Learned counsel for the petitioners contended that Exhs.P-19 and 20 were not considered properly by the trial Court, likewise the testimony of P.W.3 was misread in entirety, further the provisions of Article 79 of the Qanun-e-Shahadat Order, 1984 have been violated and it has been wrongly held that the petitioners are not in possession of the suit-land. He relies on Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others (PLD 2003 SC 84) and Hassan and another v. Hussain (1996 CLC 650). Learned counsel for the respondents has contrarily defended the impugned judgments and submitted that the petitioners own witnesses P.W. 3 to 5 could not support the case of the petitioners and in fact, made admissions in favour of the respondents, therefore, the evidence has been correctly appraised by both the Courts below, the pivotal document viz. the original Iqrar Nama never saw the light of the day, therefore, the provisions of Article 79 of the Qanune-e-Shahadat Order are of no help to the petitioners. Even otherwise Articles 72 and 79 of the Qanun-e-Shahadat Order are to be read together, Article 72 mandates that primary evidence has to be produced, lastly that there is a concurrent finding of both the Courts below in favour of the respondent and de novo reappraisal of evidence cannot be made in present jurisdiction.

3. I have heard the learned counsel for the parties at length, with their assistance perused the record and also the impugned judgments. Learned counsel for the respondents had laid great stress on Article 79 of the Qanun-e-Shahadat Order, 1984 and submitted that procedural requirements were not fulfilled, the learned counsel for the respondents is correct to say that Article 79 is to be read in conjunction with Article 72 of the Qanun-e-Shahadat Order, 1984, law requires and' mandates that best possible evidence has to be produced by the parties. In the instant case the best evidence was original Iqrar Nama, which also was primary evidence, but has not been produced by the petitioners, no A tangible, plausible or even rational reason has been assigned for this omission, the evidence tendered by the plaintiff/petitioner is also not confidence-inspiring there are major contradictions in. the evidence of the witnesses, especially in the statements of P.W.4 and 5, in fact they have helped the case of the respondents, both these witnesses admitted that the disputed property was handed over to the respondents with possession. The record clearly establishes that the proprietary rights were rightly conferred on the respondents, even if it is admitted for the sake of argument that the attorney had the powers to sell this property it was B subject to first getting proprietary rights, this was not done, there is preponderance of evidence in favour of the respondents, while the evidence tendered by the petitioners is conspicuously lacking quality. There is concurrent finding by both the Courts below in favour of the respondents, no jurisdictional error or glaring irregularity or material illegality or misreading or non-reading of evidence could be pointed out by the learned counsel for the petitioners. Resultantly, this petition has no merits and is dismissed. F.B./G-62/L???????????????????????????????????????????????????????????????????????????? Petition dismissed.