2011 SCMR 803 (PLP)

IJAZ-UL-HASSAN, J.

By this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, leave to appeal is sought from a judgment of the Peshawar High Court, Peshawar, dated 28-6-2004 whereby Civil Revision No.614 of 2001 filed by Mian Ghayassuddin and others, petitioners, assailing concurrent judgments and decrees passed by Civil Judge and Additional District Judge, Swabi dated 25-5-2000 and 1-10-2001, respectively, has been dismissed.

2. Facts of the case shortly narrated are, that respondents, brought a suit against the petitioners for declaration to the effect that they are entitled to their 'Shari' share in the legacy of Mst. Hamia Begum their mother and the alleged gift Mutations Nos.3760 dated 13-9-1987 and 388 dated 25-2-1990 being based on fraud and misrepresentation, are ineffective upon their rights and equally the subsequent mutations based on the above two mutations are also illegal and ineffective qua their rights.

3. The suit was resisted on all grounds, legal as well as factual. The pleas of the parties gave rise to the framing of as many as 11 issues. After recording such evidence as the parties wished to adduce in support of their respective stances, suit was decreed by learned Civil Judge, Swabi vide judgment dated 30-5-1994. An appeal was preferred there-against which was accepted by learned Additional District Judge, Swabi and matter was remanded to the trial Court for framing' additional issues. After remand, suit was again decreed on 25-5-2000. The appeal filed there-against was dismissed on 1-10-2001. Finally the petitioner approached the Peshawar High Court, Peshawar through Civil Revision No.614 of 2001. The said revision was dismissed vide judgment and order dated 28-6-2004, necessitating the filing of instant petition for grant of leave to appeal.

4. Sh. Wazir Muhammad, Advocate, appearing on behalf of the petitioners reiterating the contentions which he urged before learned High Court attempted to argue that impugned judgment as well as judgments and decrees of the Courts below; are based on misreading and non-reading of evidence and misconception of law. He also contended that sale against consideration coupled With possession on the basis of consistent revenue entries and later on further acted upon by consideration and enjoying the facilities of buildings as owner is protected under section 41 of the Transfer of Property Act, 1882 but learned Courts below ignored this aspect of the matter, resulting in manifest injustice. Reliance was placed on Sudhangshu Bimal Biswas v. MD. Mustafa Chowdhury (1968 SCMR 213).

5. Having re-examined the material on file in the light of the submissions of learned counsel for the petitioners, we are of the view that no case for grant of leave is made out. Learned counsel, despite his best efforts, could not point out any misreading or non-reading of the evidence on record. Learned lower Courts have fairly apprised the evidence before recording concurrent findings, which findings have been upheld by learned High Court cogently assigning sound and valid reasons. The mere assertion of the learned counsel that judgments and decrees of the Courts, below and affirmed by learned High Court suffer from the vice of mis-reading and non-reading of evidence, without a positive attempt on his part to substantiate the same, is of no consequence. The onus was heavily placed on the shoulders of petitioners to have proved that the transaction of gift was effected without exercising undue influence over the donor or that she had independent advice at the relevant time and that she had effected the transaction with her free will and consent. This onus has not been discharged satisfactorily. As against that, the evidence produced by the other side, if taken along with the admission made by the petitioners and the witnesses produced by them clearly establish that the gift mutations in question were effected in a very dubious and deceptive manner. It has come on record that at the time of the gift mutations Mst. Hamia Begum, the alleged donor was an old lady of 90 years of age. She remained under the treatment of Dr. Sibtain Anwar and was found to have lost the faculty of memory and understanding. It may be noted here that Mst. Hamia Begum expired in the hospital. The mutations were attested close to the date of her ailment and death.

6. Learned High Court in the impugned judgment has examined, scanned and scrutinized each material piece of evidence in relation to the controversy involved and has drawn a definite conclusion for reasons based up on the evidence on record. The impugned judgment in our view, is not open to any exception in the light of the well settled principles laid down by this Court, justifying interference in the concurrent findings of facts. Even otherwise no substantial question of law of public importance is involved in this petition. The case-law relied upon by learned counsel is distinguishable and of no help to the case of the petitioner.

7. Pursuant to above, finding no substance in this petition, we dismiss the same and decline to grant leave. S.A.K./G-20/SC Leave refused.