2010 SCMR 1351 (PLP)

CH. IJAZ AHMED, J.

The necessary facts out of which the present appeal arises are that dispute between the parties relates to certain land purchased by respondent Muhammad Din in open auction from Gudu Barrage authorities at the rate of Rs.850 per acre in the year 1967. The respondent filed a suit for declaration, cancellation and permanent injunction against the appellant in the Court of Senior Civil Judge, Ghotki. The contents of the plaint revealed that the sale deed dated 13-9-1978 in respect of the suit land in favour of appellant/ defendant was forged and not genuine. Therefore, he prayed for cancellation of the rights, sale deed as well as permanent injunction against the appellant/defendant restraining him from claiming or asserting any right, title or interest in the land in question, on the basis of the said sale deed. The appellant/defendant filed written statement controverted the allegations levelled in the plaint. Out of the pleading of the parties the trial Court framed five issues and after completing legal formalities, such as recording of evidence of the parties and hearing of the arguments decreed the suit vide judgment and decree dated 18-10-1990. The appellant/defendant being aggrieved filed an appeal in the Court of Additional District Judge, Sukkur, who accepted the same vide judgment and decree dated 21-3-1991 and judgment of the trial Court was set aside. The respondent/plaintiff being aggrieved filed revision petition under section 115, C.P.C. in the High Court of Sindh, Bench at Sukkur, which was accepted vide the impugned judgment dated 31-5-1994. The appellant being aggrieved filed Civil Petition No.571-K/2004, before this Court, which was fixed on 20-7-2006 and leave was granted in the following terms:-- "We have heard Mr. Fatah Malik, learned counsel for the petitioner and gone through the record. It is inter alia contended that learned Judge in Chambers of the High Court has misread the evidence by observing that it was an uncontroverted fact that defendant had been paying batai share in respect of the suit and to the respondent till Kharif crop before filing of the suit which was filed on 14th February 1979. Learned counsel has also criticized the observations of the High Court that the petitioner ought to have examined Zafar Din son and attorney of respondent, who had allegedly made a favourable statement before Mukhtiarkar Pano Akil. Learned counsel has heavily relied upon the production of original sale deed, sanction of electric connection in his favour, land revenue receipts in respect of the suit land and his name in the water rotation list prepared by Irrigation Department. After hearing learned counsel we are tentatively of the view that the High Court has not properly appreciated the facts in their proper perspective, therefore, a fit case for the grant of leave is made out. Leave to appeal is accordingly allowed to inter alia consider the aforesaid questions of law."

2. The learned counsel for the appellant submits that learned High Court had erred in law to set aside the findings recorded by the First Appellate Court, after appreciating documentary evidence. The learned First Appellate Court had considered following documents after application of mind and thereafter reversed the judgment of the trial Court: - S.No. Detail of Document Ex.Number Page No. 1 Statement of Syed Ali Mardan Ex.40 87-88 2 Statement of Zafar Din Ex.41 89-90 3 Deh Form VII Ex.42 91-92 4 Sale Deed Ex.43 95-101 5 Original receipt Ex.44 103 6 Original receipt Ex.45/1-10 105-124 7 Receipts of Tractor Ex.46/1-6 125-132 8 Receipt of National Bank Ex.47 133 9 Demand Notice of WAPDA Ex.48 135 10 Receipt for payment Ex.49 137 11 Receipt for payment Ex.50 139 12 Electricity Bills Ex.51/1-3 141-146 13 Certificate Ex.52 147 14 Receipt of electricity meter Ex.53 149 15 Chit of Abdar Ex.54 151 16 Sanction of Tube Well Ex.55 153 17 Chit of Abdar Ex.56 155 18 Receipt of purchase of Motor Ex.57 157

3. The learned High Court had not considered the aforesaid document while accepting the revision petition filed by the respondent. The impugned judgment is result of misreading or non-reading of the record by the learned High Court. Even otherwise the learned High Court had erred in law to reappraisal of the evidence on record while exercising power under section 115, C.P.C. The learned High Court had to remand the case to the First Appellate Court while pointing out illegality or irregularity committed by the First Appellate Court while deciding the appeal:-- The learned counsel of the respondent has supported the impugned judgment. He further urges that documents mentioned by the learned counsel of the appellant could be examined by this Court in the interest of justice and fair-play to shorten the agony and endless litigation between the parties.

4. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. It would be appropriate to reproduce the operative para of the impugned judgment to resolve the controversy between the parties:-- "Absolutely no proof of any of the alleged payments has been produced by the respondent/defendant. None of his witnesses have been stated that any of the above payments were made by the respondent/defendant in their presence. Admittedly there was no written agreement between the parties to the effect that land in dispute shall be purchased by the applicant/plaintiff as an ostensible owner and for the benefit of the defendant. The Hand Writing Expert Report was prepared by a Board consisting of, Abdul Rauf, Deputy Superintendent of Finger Print Bureau who is a qualified Finger Print Expert and Sub-Inspector, who also is a qualified Finger Print Expert. In view of the foregoing and on the preponderance of evidence I allow the above revision, set aside the judgment and decree dated 10-10-1990 passed by the Senior Civil Judge, Ghotki, in favour of the applicant/plaintiff and the impugned judgment of the learned appellate Court."

5. The learned High Court after examining all the material evidence on record and thereafter the learned High Court had given finding of fact against the appellant reproduced hereinabove. The documents relied upon by the First Appellate Court were not proved by the appellant in accordance with law as the said documents were simply produced without producing any witness to prove the said documents, even otherwise the learned trial Court after examining the said documents along with the other evidence on record had given finding of fact against the appellant which could be reversed when the trial Court had arrived at by disregarding any provision of law or any accepted principle concerning the appreciation of evidence. This principle was not kept in mind by the First Appellate Court. However, in the interest of justice and fair-play we had re-examined the documents in question even then appellant could not take benefit of any type to dislodge the finding recorded by the High Court against him in the impugned judgment. The said documents did not advance the case of the appellant/defendant. The appellant/defendant had failed to bring on record any document relating to title of the land in question in his favour, therefore, these documents, as mentioned above, could not advance/support the case of the appellant/defendant. It is admitted fact that the judgments of both the Courts below i.e. trial Court and First Appellate Court are at variance, therefore, learned High Court was justified to re-evaluate the evidence on record. The finding of trial Court had High Court are in consonance with the law laid down by this Court whereas finding recorded by the First Appellate Court is otherwise. See PLD 1986 SC 519' (Muhammad Shafi and others v. Allah Dad Khan). Therefore, if suggestion of the learned counsel of the appellant is accepted and the case is remanded to the learned High Court for fresh adjudication of the revision petition, it will serve no useful purpose and would prove an exercise in futility. See Mst. Sughra Bibi v. Khushi Muhammad 1989 CLC 2465, Arshad Amin v. Messer Swiss Bakery and others 1993 SCMR 216 and Abdul Qadir and others v. Settlement Commissioner and others PLD 1991 SC 1029, we are not inclined to remand the case to the learned High Court for fresh decision as the law laid down by this Court in Abdul Qadir's case supra. It is settled principle of law that who lodges a fact must prove it on the well known maxim of Secundum allegata et probata. It is also I settled principle of law that the appellant is a beneficiary of the aforesaid documents, therefore, it is the duty and obligation of the appellant to prove the documents as pointed out by the learned counsel in accordance with the provisions of Qanoon-e-Shahadat Order, 1984. See 1979 SCMR 549 (Akhter Ali v. University of the Punjab), 1992 SCMR 2439 (Haji Muhammad Khan etc. v. Islamic Republic of Pakistan). It is well settled principle of law that initial burden to prove execution of documents is on party which is relying on documents. Once this onus is discharged, burden to prove factum of fraud or undue influence or genuineness of documents shifts to party which alleges fraud. The appellant, as mentioned above, had failed to discharge its initial onus to prove the documents mentioned hereinabove by the appellant. The learned counsel for the appellant has failed to point out any infirmity or illegality in the impugned judgment: Even otherwise the appellant's counsel has failed to raise any substantial question of law. It is settled principle of law that this Court would not normally go behind the finding of fact recorded by the learned High Court unless it can be shown that the findings 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 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 the Court in civil appeals, the burden lies rather heavily on the appellant to show that the findings recorded by the High Court are not sustainable on the record and should be interfered with by us. The learned counsel of the appellant has failed to bring the case within the parameters prescribed by this Court in various pronouncement. See PLD 1976 SC 767 (Shah Nawaz and another v. Nawab Khan). He also failed to point out any infirmity or illegality in the impugned- judgment. It is well-settled principle of law that this Court cannot interfere in the concurrent conclusions arrived at by the Courts below, trial Court as well as learned High Court while exercising power under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, as the law laid down by this Court in various pronouncements. See PLD 1981 SC 246 (Muhammad Sharif and another v. Muhammad Afzal Sohail etc.), PLD 1981 SC 522 (Abdul Rehman Bajwa v. Sultan and 9 others) and 1974 SCMR 279 (Khuda Bakhsh v. Muhammad Sharif and another). It is also settled principle of law that constitutional jurisdiction is discretionary in character. Keeping in view the peculiar circumstances of the case in hand, we are not inclined to exercise our discretion in favour of the appellant as law laid down by this Court in various pronouncements. See 1998 SCMR 1462 (Rana Muhammad Arshad's case) PLD 1973 SC 236 (Nawabzada Raunak Ali's case) PLD 1989 SC 166 (Haji Saif Ullah's case).

6. In view of what has been discussed above, this appeal has no merit and is dismissed with no order as to costs. M.H./K-6/SC Appeal dismissed.