2016 PLP 133 (CLCN)

AMIN-UD-DIN KHAN, J.

Through this civil revision petitioner has challenged the judgment and decree dated 11.3.2003 passed by learned Additional District Judge, Kabirwala District Khanewal whereby appeal filed by the petitioner-plaintiff was dismissed and the judgment and decree dated 26.9.2001 passed by learned Civil Judge, Kabirwala District Khanewal whereby suit for declaration filed by the plaintiff-petitioner was dismissed.

2. Brief facts of the case are that on 8.5.1996 plaintiff-petitioner filed a suit for declaration that he is owner of 1/4th share in the suit property measuring near about 99 kanals 18 marlas situated in various revenue estates. He challenged numerous mutations starting from the year 1974 to 1993. The case of the plaintiff is that plaintiff and defendants Nos. 1 to 3 are real brothers and they remained in the joint business and it was settled between the parties that the properties will be purchased out of the income of the joint business in the name of defendant No. 1 and all the four brothers will be equal shareholders in the suit properties. It is the case that all the properties mentioned in the suit were purchased in the name of defendant No. 1 from the income of joint business. Written statement was filed, defendant Nos. 1 and 4 contested the suit whereas defendants Nos. 2 and 3 filed consenting written statement. Learned trial court framed the issues and invited the parties to produce their evidence. Both the parties produced their respective oral as well as documentary evidence. Learned trial court dismissed the suit vide judgment and decree dated 26.9.2001. Appeal filed by the petitioner-plaintiff was also met with the same fate vide judgment and decree dated 11.3.2003 passed by the learned first appellate court.

3. Learned counsel for the petitioner argues that thirty one documents have been produced by the plaintiff-petitioner but the learned courts below have not considered the same and have not discussed the same while recording findings in the suit as well as in the appeal, while discussing the issues, therefore, argues that the judgments and decrees passed by both the courts below are not sustainable under the law. Further that during pendency of the appeal before the learned first appellate court an application for permission to produce additional evidence was filed which has not been decided. States that the order of learned Magistrate whereby the son, daughter and wife of petitioner were acquitted from the criminal case got registered by respondent No.4/Muhammad Ayub.

4. On the other hand, learned counsel for the respondents argues that there are concurrent findings of fact recorded by the two courts below and the plaintiff-petitioner has challenged the mutations right from the year 1974 to 1993 and further that the arguments of learned counsel for the petitioner have no weight whereby it has been agitated that documents have not been discussed by the courts below. States that these documents are mutations or the registered sale deeds in favour of defendant-respondent, there was no need to discuss these documents as admittedly these documents are in favour of defendant. Further that the documents sought to be produced through the application for additional evidence were not relevant with the facts of the case, therefore, no prejudice has been caused if application has not been decided. Argues that plaintiff/petitioner miserably failed to prove case pleaded by him. Prays that this civil revision be dismissed.

5. I have heard learned counsel for the parties at length and gone through the record, evidence produced by both the parties oral as well as documentary and findings recorded by both the courts below.

6. The plaintiff-petitioner has pleaded an oral agreement between the parties with regard to entitlement of the properties purchased in the name of defendant No.

1. For proving an oral agreement some principles have been laid down by the august Supreme Court of Pakistan. Light can be taken from a judgment reported as 2013 SCMR 1300 "Muhammad Nawaz through L.Rs v. Haji Muhammad Baran Khan through L.Rs and others". In the circumstances of this case, the plaintiff-petitioner was required to prove arriving at of the oral agreement which the plaintiff wants to press through the suit in hand. No specific pleading, event of agreement, its specific date, or the witnesses have been pleaded, therefore, no question of proving the said agreement through evidence when same has not even been pleaded. None of the witnesses of the plaintiff nor the plaintiff himself has specifically stated about date of alleged agreement. The documents produced by the parties are admittedly in favour of defendant No. 1, therefore, there was no need to discuss every document while recording findings by the learned courts below. The tenor of the pleadings of the plaint shows that plaintiff wants that all the transactions be declared as "Benami" and his suit be decreed. Even plaintiff has not pleaded so nor the ingredients of "Benami" transaction are available in the suit.

7. Plaintiff has filed a suit under section 42 of the Specific Relief Act, 1877. Through a decree for declaration granted under section 42 of the Specific Relief Act, 1877 a pre- existing right can be declared, a new right cannot be created. Plaintiff-petitioner failed to prove a pre-existing right, he wants that a right be created in his favour through grant of a declaratory decree in his favour which is not permissible under the law.

8. When there are concurrent findings of fact recorded by both the courts below after complete and thorough examination of the evidence produced by the parties relevant with the issues, this Court cannot substitute the same unless there is some misreading and non-reading of evidence or some procedural defect fatal to the case on the part of the courts below but no such misreading, non-reading or procedural defect has been highlighted nor I find the same in the findings recorded by the Courts below, therefore, in the light of judgments reported as PLD 1994 SC 291 "Haji Muhammad Din v. Malik Muhammad Abdullah", PLD 1983 Lahore 687 "Mst. Rashida Hussain v. Qazi Aslam Hussain and 8 others" and 2002 CLC 295 "Ghulam Muhammad v. Malik Abdur Rashid and 2 others", I am unable to disagree with the concurrent findings recorded by both the courts below.

9. So far as application for permission to produce additional evidence is concerned, the documents sought to be produced were absolutely not relevant for this lis, therefore, non-deciding of application is not fatal in the peculiar circumstances of this case and no prejudice has been caused to the petitioner.

10. In view of the above, no case for interference by this Court while exercising jurisdiction under section 115 of the C.P.C. has been made out. This revision petition having no merit is hereby dismissed. ZC/M-233/L Revision dismissed.