2017 PLP 21 (YLRN)

AMIN-UD-DIN KHAN, J.

Through this civil revision petitioners have challenged the judgment and decree dated 19.10.2004 passed by the learned Addl. District Judge Karor District Layyah, whereby appeal filed by the petitioners was dismissed and the judgment and decree dated 31.7.2004 passed by Civil Judge Karor, District Layyah, whereby suit for declaration filed by the plaintiffs/petitioners was dismissed.

2. Respondents Nos.1 to 3 have refused to accept the service, therefore, they are proceeded against ex parte.

3. Brief facts of the case are that plaintiffs/petitioners on 19.11 1997 filed a suit for declaration that they are legal heirs of deceased Chhaju and challenged the registered power of attorney No.332 dated 24.6.1979 and on the basis of power of attorney, transfer of the suit property through mutation No. 143 attested on 18.9.1991. Written statement was filed and suit was contested. Learned trial court framed the issues, parties were directed to produce their respective evidence. Both the parties produced oral as well as documentary evidence. Learned trial court was pleased to dismiss the suit vide judgment and decree dated 31.7.2004. The appeal was preferred which also met with the same fate on 19.10.2004. Hence, this civil revision.

4. Learned counsel states that plaintiffs/petitioners proved that they are legal heirs of Chhaju deceased and further that no power of attorney was given by the deceased for transfer of the property and the transfer of the property by his alleged attorney is against the law, therefore, liable to be set aside and suit was liable to be decreed. States that both the courts below have misinterpreted the evidence produced by the plaintiffs/petitioners and the findings of two courts below are based upon mis-reading and non-reading of the evidence of the plaintiffs/petitioners. To the extent of findings on issue No.1 states that when trial court came to the conclusion that no iota of evidence has been produced by the defendants, therefore, this issue should have been decided in favour of plaintiffs.

5. I have heard the learned counsel for the petitioners at length gone through the record with his able assistance, the evidence produced by both the parties and findings recorded by learned two courts below.

6. I have minutely gone through the record as well as the findings recorded by the two courts below, the findings match with the evidence. In this case one thing is to be kept in mind that owner or the principal has not challenged the power of attorney or the transfer of the property on the basis of power of attorney. Plaintiffs are the third person and the principal of shifting of the onus of proof upon the beneficiary comes into play in case when a person claiming that power of attorney or transaction from him is fraudulent and he appears in the witnesses box and makes statement on oath in the case, in that eventuality the onus shifts upon the beneficiary to prove the valid transaction or power of attorney as the case may be but in case when a third person challenges the validity of any registered document or transfer or transaction of the property, the onus shifts upon the beneficiary only when he is able to bring on record concrete, complete, solid and convincing evidence to prove his contention, otherwise if he fails to produce some considerable evidence, no question of shifting of onus to prove upon the beneficiary applies in that eventuality in my view. So far as point of limitation is concerned, when a documentary evidence is available in this case which clearly shows that the suit has been filed after the prescribed period of limitation, therefore, the findings recorded by the two courts below are unexplained. As there are Concurrent findings of fact after discussing the oral as well as documentary evidence produced by the parties. This Court while exercising the jurisdiction under section 115 of C.P.C. cannot reinterpret the evidence available on the file or substitute its findings with that of two courts below. When no illegality or material irregularity committed by the two courts below has been highlighted by the learned counsel or is visible from the findings recorded by the two courts below.

7. In this view of the matter, where there are concurrent findings of fact in the matter against the plaintiffs recorded by two courts below, this court cannot afford to go into the factual, controversy wherein learned courts below have drawn the conclusion. In this context, reliance can be placed upon "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 Abdul Rashid and 2 others)". In this view of the matter, no case for interference by this court while exercising jurisdiction under section 115 of C.P.C. has been made out, therefore, this civil revision being devoid of any substance is dismissed. ZC/M-266/L Revision dismissed.