2006 PLP 586 (SCMR)

M. JAVED BUTTAR, J.

The petitioners/plaintiff's, through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, are seeking leave to appeal against the judgment and decree dated 11-12-2001, passed by a learned Single Judge of the Lahore High Court, Lahore, whereby Civil Revision No.2066 of 1994, instituted by respondents Nos.1 and 2/the contesting defendants, was allowed, the judgment and decree of the first Appellate Court was set aside and the suit filed by the petitioners was dismissed with no order as to costs.

2. On 15-6-1987, the petitioners instituted a suit against the respondents Nos.1 and 2/the contesting defendants and respondents Nos.3 to 5/pro forma defendants with the averments that the suit property, which is a house, was owned by one Mirza Khan and on his death, it devolved upon respondent No.1 Mst. Naimat Bibi, his widow, to the extent of I/4th while the rest devolved on them and respondents 3 to 5 as legal heirs/collaterals of Mirza Khan. Registered sale-deed dated 10-6-1987 executed by respondent No.1 in favour of Fazal Karim, respondent No.2 (the vendee), whereby the aforesaid house was transferred in favour of respondent No.2 was also assailed in the suit on the ground that it was inoperative qua the rights of the petitioners and respondents Nos.3 to 5.

3. The suit was contested. The case of respondents 1 and 2 was that the property in dispute was owned by respondent No.1 Mst. Naimat Bibi, therefore, no exception could be taken to the sale made by her in favour of respondent No.2. The trial Court framed the necessary issues and tried the suit. It was found that property was not owned by Mirza Khan. Accordingly, the petitioner's suit was dismissed on 12-10-1989. The petitioners' appeal, however, was allowed by the First Appellate Court vide judgment and decree dated 8-2-1994 with the result that the suit of the petitioners was decreed. The revision petition under section 115, C.P.C. instituted by respondents 1 and 2, as mentioned above, was accepted by the Lahore High Court, Lahore vide judgment andedecree dated 11-12-2001.

4. We have heard learned counsel for the petitioners and have also perused the documents attached with the petition.

5. It may be mentioned here that except Exh.D./1 the registered sale-deed in favour of respondent No.2, other documentary evidence was produced by the parties in respect of their pleas.

6. It is submitted by the learned counsel for the petitioners that according to the report of Local Commissioner, Muhammad Din, petitioner No.1, was in possession of the property in dispute, the evidence produced by the plaintiffs clearly establish that it was owned by Mirza Khan, that respondent No.1 Mst. Naimat Bibi failed to establish through evidence that it was she who was owner of house in dispute and not Mirza Khan and the First Appellate Court had correctly decreed the petitioners' suit.

7. The learned trial Court and the First Appellate Court, on the basis of same evidence, had reached the conflicting conclusions. The High Court, therefore, in its revisional jurisdiction under section 115, A C.P.C. correctly reappraised the entire evidence. The learned Single Judge of High Court correctly held that since the plaintiffs/petitioners had brought a suit claiming title through Mirza Khan, therefore, it was for them to establish title of Mirza Khan and that it is only a positive and not a negative fact which is capable of proof. It was also correctly held B that when both the parties lead evidence, the question of burden of proof is not of any significance and therefore, mere negative form of Issue No.2 that "Whether house in dispute was not owned by Mirza Khan, deceased? OPD 1 and 2", could not be decisive, whereas the First Appellate Court while interfering was mainly persuaded only by the form of Issue No.2. The learned Single Judge in para.9 of the impugned judgment, discussed the entire evidence produced by the parties and correctly concluded (para.10) that the evidence produced by the petitioners was discrepant, unworthy of any reliance and that the petitioners had failed to establish/prove that the house in dispute was owned by Mirza Khan, which finding of fact, in our view, does not warrant any interference by this Court in the exercise of its Constitutional jurisdiction as we tend to agree with it.

8. In view of the above-mentioned, we find no merit in this petition which is accordingly dismissed and the leave is refused. S.A.K./237/S?????????????????????????????????????????????????????????????????????????????????????? Leave refused.