2010 PLP 5 (SCMR)

CH. IJAZ AHMED, J.

Petitioners seek leave to appeal against the judgment of the Peshawar High Court wherein revision petition filed by the petitioners was dismissed vide impugned judgment 8-5-2009.

2. Detailed facts have already been mentioned in the impugned judgment as well as in the memo. of petition. However, necessary facts out of which the present petition arises are that respondents Nos.1 to 6 filed suit for possession of shop through partition in the Court of Civil Judge-IV, Haripur on 20-4-1994. The contents of the plaint reveal that the shop in question situated in city Haripur was originally the ownership of Feroze Din who had transferred the same disputed shop in the names of Muhammad Ayub, predecessor-in-interest of respondents/plaintiffs and Muhammad Younus, predecessor-in-interest of the petitioner/ defendants vide registered sale-deed executed on 9-5-1952 which was attested on 12-5-1952 and possession was also handed over to the predecessor-in-interest of the parties namely Muhammad Ayub and Muhammad Younas. The contents of the plaint further reveal that after the death of the predecessor-in-interest of both the parties to suit are legal heirs of the deceased Muhammad Ayub and Muhammad Younas. Both the parties are joint owners in possession of suit shop. Petitioners/defendants filed written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties the learned Civil Judge framed the following issues:

1. Whether the plaintiffs have got a cause of action?

2. Whether plaintiffs are estopped to sue?

3. Whether suit is incompetent in its present form?

4. Whether suit is within time?

5. Whether claim for partition is partial as did not include the entire joint property; if so; its effects?

6. Whether suit is based on mala fide?

7. Whether plaint has not been verified according to law, if so, its effect?

8. Whether suit has been incorrectly valued and subject to affixation of court-fee?

9. Whether plaintiffs have waived their rights in the suit shop, if any?

10. Whether plaintiffs are owners of 1 /2 share in the suit shop?

11. Whether defendants through their predecessor-in-interest Muhammad Younas are exclusive owners of suit shop?

12. Whether defendants have reconstructed the suit shop, if so, cost and effect of such reconstruction?

13. Relief. Learned trial Court decreed the suit vide its judgment dated 11-11-2004. Petitioners being aggrieved filed appeal in the Court of Additional District Judge-II, Haripur on 8-3-2005. Cross-objections were also filed. The learned Additional District Judge dismissed the appeal and cross-objections vide judgment, dated 16-1-2007. Petitioners being aggrieved filed Civil Revision No.83 of 2007 in the Peshawar High Court, Abbottabad Bench which was also dismissed vide impugned judgment dated 8-5-2009. Hence the present petition.

3. Learned counsel for the petitioners submits that shop in question was purchased through registered sale-deed executed on 9-5-1952 and registered on 12-5-1952 for consideration of Rs.700 out of which Rs.200 were paid in advance and balance amount amounting to Rs.500 were paid by Muhammad Younas at the time of registration of sale-deed as is evident from endorsement made by Sub-Registrar. The entire consideration was paid by Muhammad Younas predecessor-in-interest of the petitioners and that in the contents of the sale-deed names of Muhammad Younas and Muhammad Ayub are mentioned whereas in the process of sale execution and registration of sale-deed and payment of sale consideration Muhammad Ayub never appeared. The shop in question at the time of its purchase was Kham-Pukhta. Possession under the sale was taken over by Muhammad Younas predecessor-in-interest of the petitioners and remained in possession till he died in the year 1966 whereas Muhammad Ayub died in the year 1958. Feroze Din original owner had died in the year 1964-1965. The predecessor-in-interest of respondents Muhammad Ayub had not asserted his right in the shop in question in his life time, nor Muhammad Younas shared with him the usufruct of the shop. On the death of the predecessor-in-interest of the petitioners, his heirs entered upon possession and held the same uptodate. Shop was reconstructed by the petitioners after its demolition with their own expense. Respondents - did not object nor shared the expenses incurred upon the reconstruction and allied matters. So much so the petitioners paid property tax. Ownership rights of shop stood mutated in their names from the year 1966 i.e. time of death- of Muhammad Younas predecessor-in-interest of the petitioners and reconstruction of the shop. The Courts below had decided the case against the petitioners without adverting to the aforesaid facts which are admitted between the parties, therefore, Courts below erred in law to decide the case against the petitioners by misreading and non-reading of the evidence on record so much so that all the Courts below had decided the case against the petitioners without adverting to the parameters prescribed by the superior Courts qua Benami transactions. Petitioners had taken specific ground in written statement that shop in question was reconstructed by the petitioners and the respondents/plaintiffs had not shared expenses at the time of reconstruction of shop. Original documents are also with the petitioners. In support of his contention he relied upon the following judgments:

(i) Muhammad Sajjad Hussain's case 1991 SCMR 703 (ii) Khairannessa Bibi's case AIR 1958 Cal. 733.

4. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record particularly perusing the contents of the plaint and written statement wherein the petitioners had not taken a single sentence with regard to the Benami transaction. This fact is also borne out from the issues framed by the trial Court. All the Courts below have given concurrent findings of fact against the petitioners. It is better and appropriate to reproduce operative part of the impugned judgment to resolve the controversy in question: "The dispute in this case is as to whether the transaction vide sale-deed dated 12-5-1952 is Benami. In a case of this nature following factors are to be taken into consideration:

(i) Source of consideration; (ii) from whose custody the original title deed came in evidence; (iii) who is in possession of the suit property, and (iv) motive for the Benami transaction. Under the law (as laid down by the apex Court in 1991 SCMR 703) the burden of proof is on the party, who alleges that an ostensible owner is "Benamidar" for him. Keeping in view the above criteria and factors involved, it may be observed that Muhammad Younas, the predecessor of petitioners, was elder brother of Muhammad Ayub, the predecessor of respondents Nos.1 to

6. Exh. P. W./1 is the copy of the sale-deed, according to which the bargain was struck with the two brothers jointly. The sale-deed being thirty years old, presumption of truth is attached to it under Article 100 of the Qanun-e-Shahadat Order, 1984 and attesting witnesses are not required to be called and, as such, it is proved that the suit shop was purchased by the predecessors of the parties jointly and thus, the respondents Nos.1 to 6 are owners thereof to the extent of 1/2 share. The petitioners/defendants Nos.1 to 6 have not produced convincing evidence to prove that Muhammad Ayub, the predecessor of respondents Nos.1 to 6 was a Benamidar. There is no misreading or non-reading of any material piece of evidence, which could render the findings of two Courts below unworthy or illegal." It is settled proposition of law that each and every case is to be decided on its own peculiar circumstances and facts as law laid down by this Court in Muhammad Saleem's case 1994 SCMR 2213. It is also settled law that findings on question of fact or law, erroneous the same may be, recorded by the Court of competent jurisdiction, cannot be interfered with by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. unless such findings suffer from controversial defects, illegality or material irregularity as law laid down by the Privy Council in Hindu Religious Endowments Board, Madras' case PLD 1949 PC

26. With regard to section 115, C.P.C. it is observed by the Privy Council as under (i) 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. (c) That in exercising jurisdiction, the Court has not acted illegally, that is in breach of some provision 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 questions of fact or law. The learned High Court did not interfere in the concurrent conclusions arrived at by the Courts below keeping in view aforesaid parameters prescribed by the Privy Council. It is settled principle of law that this Court seldom interferes in the concurrent conclusions arrived at by the Courts below while exercising power under Article 185(3) of the Constitution unless and until 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 a 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 physically impossible. This being the practice and the rule of this Court in civil petitions, the burden lies rather heavily on the petitioner to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by us. It is an admitted fact that predecessor-in-interest of the petitioners and respondents are real brothers. Registered sale-deed executed and registered in favour of both the brothers. It is a settled principle of law that registered document has sanctity attached to it and strong evidence is required to cast a aspersion on its genuineness. See Mirza Muhammad Shard's case 1993 SCMR

462. It is also settled fact that sale-deed was executed in the year 1952. Therefore, it is 30 years old document. Under Article 100 of the Qanun e-Shahadat Order, presumption is attached to 30 years old documents which is rebuttable presumption. This duty becomes all the more heavily cast when opposite party challenges very genuineness of document. It is proper to mention here that petitioners fail to rebut the same as is evident from the contents of the written statement' filed by the petitioners. Even otherwise there is no substantial question of law arising in the petition. It is also settled principle of law that constitutional jurisdiction is always discretionary in nature.

5. We are not inclined to exercise our discretion in favour of the petitioners as laid down by this Court in the following judgments:

(i) Khuda Bakhsh's case 1974 SCMR 279 and (ii) Syed, Raunaq Ali's case PLD .1973 SC 236.

6. In view of what has been discussed above this petition has no force and the same is dismissed. Leave refused. M.H./M-114/SC Petition dismissed.