2006 PLP 1614 (MLD)

JAWWAD S. KHAWAJA, J.

This regular second appeal impugns the concurrent findings of the learned trial Court, dated 11-12-2002 and of the learned lower appellate Court, dated 28-4-2004 whereby a suit for declaration and consequential relief filed by appellants-plaintiffs was dismissed.

2. The facts of the case have been set out in the impugned judgments and need not therefore, be reproduced in extenso.

3. The entire circumstances giving rise to this litigation show unconscionable conduct on the part of the appellants-plaintiffs. The suit property was admittedly owned by Abdul Ghani father of Mst. Amina Bibi, respondent-defendant. The appellant Muhammad Ramzan son of Sardar Ali is the Bhatija of Abdul Ghani. He claimed that Abdul Ghani executed a power of attorney (Exh. P.4), dated 13-2-1996 authorizing him to alienate the suit property by way of sale, gift etc. Vide mutation No.870 (Exh.P.5), Muhammad Ramzan, purporting to act on behalf of Abdul Ghani, gifted the suit property to his father Sardar Ali. Thereafter on 16-10-1996 Sardar Ali sold 4 Kanlas 9 Marlas to one Sultan and the remaining 13-kanals 12-marlas he gifted back to Muhammad Ramzan and another son, namely, Hanif, vide mutation No.872 (Exh.P.7).

4. Abdul Ghani died on 28-12-1996. However, prior to that on 19-10-1996, the respondent-defendant Mst. Amina Bibi, being the daughter of Abdul Ghani, filed her declaratory suit which is subject-matter of connected Civil Revision No.2065 of 2004. It may be noted that the suit was filed by Amina Bibi on behalf of Abdul Ghani as his next friend. It was her case that Abdul Ghani was suffering from dementia and psychiatric disorder. There is another important aspect of the case which appears from the order, dated 24-10-1996 passed by the learned trial Court. Mst. Amina Bibi had filed an application in Court asserting therein that Abdul Ghani was of unsound mind and that his rights could not be protected by the alleged attorney of Abdul Ghani. It was also averred specifically that Abdul Ghani had not appointed any person to act as his attorney. It is apparent from the aforesaid order, dated 24-10-1996 that the so-called attorney was directed to produce Abdul Ghani in Court but he failed to do so. From this it can justifiably be concluded that the most relevant person, namely, Abdul Ghani, had deliberately not been produced in Court by Ramzan and had this been done, the plea of Mst. Amina as to the mental condition of Abdul Ghani would have been substantiated. Consequently, the learned Court rightly drew the interference that Abdul Ghani was not of sound mind. By the same order Mst. Amina Bibi was appointed as next friend of Abdul Ghani.

5. At this stage I may also add that there is no explanation forthcoming from the record as to why Abdul Ghani himself did not appear before the Revenue Officer for the purpose of recording the gift reflected in mutation (Exh.P.5), if he was indeed in good physical and mental condition as alleged by Ramzan. Learned counsel for the appellants was asked to explain this unusual circumstance but he was unable to do so. This fact also lends strong support to the inference that Abdul Ghani was not of sound mind and was, therefore, deliberately kept away from the Revenue Officer. The above circumstances have been duly noted by the learned Courts below who have rightly dismissed the suit of the appellants-plaintiffs. The impugned decrees are as such unexception able being consistent with the record. Furthermore, learned counsel for the appellants was unable to advert to any such jurisdictional error or other legal infirmity in the impugned judgments and decrees, which would justify interference therein while exercising appellate jurisdiction. In these circumstances, I find no merit in this appeal which is, therefore, dismissed. F.B./A-132/L Appeal dismissed.