2007 PLP 1179 (SCMR)

CH. IJAZ AHMED, J.

The brief facts out of which the present appeal/petition arises are that respondents/plaintiffs filed a suit for declaration against the petitioners in respect of a house, shop and the garage seeking a decree to the relief for declaration of right, perpetual injunction, partition and recovery of possession in the Court of Civil Judge, Peshawar on 2-1-2003. The contents of the plaint reveal that respondents/plaintiffs are the owners of half share in suit house, including a garage and shop vide registered Tamleek Nama dated 26-10-1976. The contents of the plaint further show that respondents/ plaintiffs have also claimed permanent injunction restraining petitioners/ defendants from alienation of said house and possession of their half share through partition along with mesne profits at the rate of Rs.3,700 p.m. Respondents/defendants Nos.1-3 are the sons and respondent/plaintiff No.4 is the husband of deceased Mst. Nazakat Sultana. Predecessor-in-interest of Nazakat Sultana who was the owner of the land in question executed aforesaid Tamleek Deed dated 26-10-1974 in favour of Mst. Nazakat Sultana and by virtue of said deed, she became owner of half share of said house and remaining half share was transferred in favour of Mst. Zamurd daughter of Ghulam Haider. The contents of plaint further show that on 26-6-1978 Mst. Zamurd executed a sale-deed in favour of defendant/petitioner No.1 wherein the entire house was transferred to petitioner No.1 whereas Mst. Zamurd was owner of half share of the house in question: Therefore, she was not empowered to sell the entire house. The petitioners/defendants filed written statement controverting allegations levelled in the plaint. Out of the divergent pleadings of the parties the learned trial Court framed 12 issues. The learned trial Court after recording the evidence of the parties decreed the suit of the respondents/plaintiffs as prayed for vide judgment and decree, dated 10-4-2004. Petitioners being aggrieved filed appeal in the Court of Additional District Judge, Peshawar, who dismissed the same vide judgment, dated 7-12-2004. Thereafter petitioners being aggrieved filed Civil Revision No.307 of 2005 in the Peshawar High Court which was also dismissed vide impugned judgment, dated 9-12-2005. Petitioners being aggrieved filed Civil Petition No.192-P of 2006 which was fixed before this Court on 11-10-2006 and leave was granted to consider the following questions:-- "leave to appeal is granted inter alia to examine as to whether learned High Court has correctly read the contents of Tamleek Nama, dated 23-10-1997, Exh.P.W.1/1 on the record." Hence this appeal.

2. Appellants filed C.M.A. No.61-P of 2006 for suspension of the operation of the impugned order of the High Court and the Courts below. The same is liked for today. When the learned counsel of the appellants is confronted with leave granting order that at the time of granting leave this Court has not granted any interim relief he submits that office was directed to fix the appeal during 3rd week of November, 2006 vide order, dated 11-10-2006. Therefore, he requests that appeal may be heard today. With the consent of the learned counsel of the parties the main appeal is heard today.

3. The learned counsel of the appellants submits that all the Courts below have erred in law to non suit the appellants by misreading and non-reading of Tamleek Nama dated 23-10-1997. He further maintains that all the Courts have granted mense profit to the respondents/plaintiffs without recording evidence. He further maintains that all the Courts below have given concurrent finding of fact against the appellant on Issue No.7 by misreading and non-reading of the record. He further maintains that appellant No.2 at the advice of his father managed the marriage of Nazakat Begum in lieu of half of the suit house measuring 1-1/2 Marla consisting of one house upper storey, one shop and one garage upon which Sher Muhammad got registered one half of the Salum house to his wife Mst. Zamurd Begum vide registered Gift Deed No.1793, dated 26-10-1974. Said Mst. Zamurd Begum sold out her half of the Salum house to the petitioner No.1. He further maintains that marriage of Mst. Nazakat Begum was managed by the petitioner No.2 as per his promise with his late father in lieu of the disputed Salum house and Mst. Nazakat Begum accepted the dowery articles and other expenses incurred by petitioner No.2 when she was married in the year 1978 and died in 1988 admitting the facts of expenses on her marriage and did not claim half of the Salum house in her lifetime. He further maintains that all the Courts below had not taken into consideration the decision rendered by Insaf Committee vide order, dated 20-8-2002. He sums up his arguments that all the Courts below have decided the case against the appellants by misreading and non-reading of the record.

4. The learned counsel for the respondents has supported the impugned judgment.

5. We have considered the submissions made by counsel for the parties and perused the record. It is better and appropriate to reproduced operative part of the Tamleek Nama and operative part of the judgment of the trial Court on Issue No.7 as the counsel of the petitioner has laid down much emphasis on Issue No.7 to resolve the controversy between the parties:-- Relevant part of Tamleek Nama. Operative part of the Issue No.7. "To prove the authenticity and genuineness of the said document (Exh.P.W.1/1) plaintiffs produced Muhammad Iqbal Moharrar of the Office of Sub-Registrar, Peshawar as P.W. who categorically stated that the said document (Exh.P.W.1/1) is correct and duly registered as per relevant record. This P.W. was not cross-examined by the defendants, hence under the provisions of Qanun-e-Shahadat Order, 1984, the statement of the P.W.1 was deemed admitted by the defendants. The perusal of the said Exh.P.W.1/1 very clearly reveals that Mst. Nizakat Sultana (predecessor-in-interest of the plaintiff') was given 1/2 share of the suit house by her predecessor-in- interest namely Mistri Sher Muhammad, and after her death, her legal heirs (present plaintiff) became the owners of the suit house to the extent of 1/2 share of deceased Mst. Nizakat Sultana. Defendants failed to rebut this registered Tamleek Nama (Exh.P.W.1/1) this issue is, therefore, decided in affirmative."

6. It is pertinent to mention here that learned trial Court has decreed the suit of the respondents as prayed for. The findings of the trial Court was upheld by the First Appellate Court after reappraisal of the evidence on record as is evident from paras.3 to 5 of the judgment of the First Appellate Court. Thereafter the learned High Court has also scanned the evidence on record and. thereafter dismissed the revision petition as evident from paras.7 to 11 of the impugned judgment. The Privy Council has laid down following principle in N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 PC 26 with regard to the powers of the High Court to interfere in the findings recorded by the Courts below while exercising power under section 115, C.P.C.:-- "This section empowers the High Court to satisfy itself upon three matters; (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provisions of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon question of fact or law." The dictum of the Privy Council was approved by this Court in the following judgments:-- (i) Aziz Ullah Khan's case 2000 SCMR 1647, (ii) Anwar Zaman's case 2000 SCMR 431, (iii) Abdul Rahim's case 2000 SCMR

346. We are perfectly conscious that as ultimate Court in the land, Supreme Court, as a rule, should give due weight and consideration to the opinion of the Courts below. Normally, this Court does not meddle with findings of fact recorded by the courts below, when it is satisfied that the findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning the appreciation of evidence. This would be notwithstanding that a different view might also be possible. It is also a settled law that this Court would not normally go behind the concurrent findings of fact recorded by the courts below unless it can be shown that the finding is on the face of it against the evidence or so patently improbable, or perverse that to accept it could amount to perpetuating the grave miscarriage of justice or if there has been any misapplication of a principle relating to appreciation of evidence or finally, if the finding could be demonstrated to be physical impossible. This being the practice and the rule of the court in civil appeals, the burden lies heavily on the appellants to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by us. We have scanned the evidence on record with the assistance of the learned counsel for the parties and have come to the conclusion that the concurrent findings of the Courts below are based on sound and cogent reasons. This Court as mentioned above does not interfere with the concurrent findings arrived at by the courts below while exercising power under Article 185(3) of the Constitution in the absence of any misreading or non-reading of evidence by the learned High Court. The learned counsel for the petitioner has failed to bring the case within the parameters prescribed by this Court in various pronouncements. Sec Shukaruddin v. Jan Muhammad 1985 SCMR 1207, Suleman v. Nazar Muhammad 1995 SCMR 565, Sulaiman v. Muhammad Daud Khan NLR 1995 CLJ 518, Abdul Latif v. Muhammad Khan 1990 SCMR 909 and Ahmad Sher v. Muhammad Nawaz and 2 others 1990 SCMR 445.

7. For what has been discussed above, this appeal has no merit and the same is dismissed with no order as to costs. S.A.K./M-47/SC Appeal dismissed.