2004 PLP 567 (CLC)

(1) Whether the House bearing C. S. No. 1221 and 1222 was sold by Ibrahim to Mst. Hameeda under an agreement of sale dated 4‑3‑1991? (2) Whether Mst. Hameeda paid Rs.30,000 to Muhammad Ibrahim as earnest money and received the possession of house in pursuance of agreement? (3) Whether Mst. Hameeda is tenant of the House B‑1221 and encroacher for the Premises No.B.‑1222? (4) Whether Muhammad Ibrahim is entitled to the possession of Premises No.B‑1222 as mill as the amount of damages and mesne profits as claimed? (5) Whether Mst. Hameeda is entitled to the relief as claimed by her?. (6) Whether any of the suit is not maintainable? (7) Whether the suit of either party is undervalued? (8) What should the decree be? In order to prove their respective cases both the parties led their oral and documentary evidence and After hearing learned counsel for respective parties the learned trial Court dismissed the Suit No.51 of 1991 of the applicant and decreed the, Suit No. 141 of 1991 of the respondent. The applicant being aggrieved by the judgment and decree of the trial Court filed civil appeals which were dismissed by the learned IIIrd Additional District Judge, Sukkur and maintained the judgment and decree of the learned trial Court as referred above. I have heard the learned counsel for the respective parties and perused the record. It has been contended by the learned counsel for the applicant that the impugned judgments and decrees of both the lower Courts are against the facts of the case and contrary to law. It has further been contended by him that the findings of trial Court as well as lower Appellate Court are with the result of misreading and non‑reading of evidence which is against the settled principles of law. It has also been contended by him that both the Courts below have acted in exercise of their jurisdiction with material illegality and irregularity, while passing the impugned judgments and decrees and the same are contrary to the facts and unwarranted by the law. The learned counsel argues that the learned; trial Court has not recorded the finding on Issue No.3 and burden of proof was lying upon the respondent, therefore, the impugned judgments and decrees are not sustainable under law. Learned counsel for the applicant has relied upon the cases Badar Zaman v. Sultan 1996 CLC 202, Maj. Rashid Beg v. Rehmatullah Khan and 4 others PLD 2001 SC 443, Mst. Rehana Begum v. Karam Hussain 2002 MLD 65, Board of Intermediate and Secondary Education, Lahore through Secretary v. Miss Ghazala Roohi 2002 MLD 1966, Muhammad Bakhsh v. Ellahi Bakhsh 2003 SCMR 286 and Muhammad Yousuf and others v. Haji Murad Muhammad and others PLD 2003 SC 184 in support of his contentions. On the other hand Mr. Riaz Ahmed Qureshi learned counsel appearing on behalf of the respondent has vehemently opposed the above revisions. It has been contended by him that the findings of both Courts below are based on material facts and evidence, brought on record. He argues that the applicant pointed out that she has purchased the suit property by virtue of sale agreement by paying Rs.30,000 towards part payment of the sale consideration and in support of her statement she had produced receipt of payment and from perusal of these documents it would reveal that those were written at the same time by one Munshi Muhammad Ibrahim and attested by Notary Public namely Muhammad Ibrahim Memon and the same is with different pens/ink. Moreover, the applicant has failed to produce said Notary Public Muhammad Ibrahim Memon for his evidence in order to prove the said agreement to be true. The learned counsel also argued that the applicant's witness Gul Hassan has stated that it is correct that Iqrarnama was not attested by any Notary Public or from any Advocate, therefore, her evidence does not inspire confidence. The learned counsel further argued that the applicant had also not examined the witness of the alleged receipt. The burden of proof was lying upon the plaintiff/applicant to prove its genuineness but it has not been done by her. The learned counsel stressed upon the dismissal of both the above revisions. I have given my anxious consideration to the arguments of learned counsel for the respective parties and perused the record which shows that Gul Hassan, witness of the plaintiff in his cross‑examination Exh.104 admitted that the said Iqrarnama was not attested by any Notary Public or any Advocate. He also admitted that the Stamp Paper on which the alleged Iqrarnama was executed was purchased by the plaintiff herself. The said witness also admitted that Iqrarnama is forged one. The plaintiff Mst. Hameeda in her cross‑examination Exh.90 has stated that she was with the defendant/respondent at the time of attestation of alleged sale agreement but could not say that who has attested the said sale agreement. The above assertions of applicant/plaintiff and her witness create doubt about the genuineness of alleged sale agreement/ Iqrarnama, therefore, both the learned Courts below were right to dismiss the suit and appeal of the plaintiff. In view of the above circumstances, I find no illegality or irregularity in the impugned judgments and decrees of the trial Court as well as lower Appellate Court, which could justify this Court to reverse their findings under its revisional jurisdiction. Consequently, both the civil revisions are dismissed in limine. Civil Revisions Nos.63 of 2001 and 64 of 2001 stand disposed of. M.B.A./H‑120/K Revisions dismissed.