2002 PLP 3695 (YLR)

Syed Muhammad Anwar Shah for Respondents Nos.1 to 11 and

13. A suit for declaration filed by the petitioners, was decreed by the learned Civil Judge, vide judgment and decree dated 9‑9‑1993. However, on appeal, filed by respondents, the said judgment and decree has been set aside on 25‑4‑1995.

2. Briefly the facts of the case are, that petitioners filed a suit for declaration, claiming that Imam Bakhsh, predecessor‑in‑interest of respondent Karim Bakhsh, etc. had given the suit land to Saeed alias Sedo, predecessor‑in‑interest of the petitioners according to the `Adhlaphi' custom who developed the land which was originally a jungle, dug a wooden well, therefore, was entitled to 50% of the suit land, which comes to 4 Kanals and 10 Marlas. Petitioners, as successor‑in‑interest of Sedo, have been in possession of the property as Adhlaphi owners subsequently, they approached respondent Karim Bakhsh, who acknowledged their Adhlaphi rights, as also executed memorandum dated 10‑9‑1997, but illegally got the mutation of the suit land in his favour and sold the same in favour of other defendant vide Mutation No.1346 dated 10‑4‑1988.

3. This suit was contested by respondents, parties were put to trial and the learned Civil Judge, allowed the suit as mentioned above, holding that the petitioners have been able to establish that their predecessor‑in‑interest procured the land in question from Imam Bakhsh, predecessor‑in -interest of respondent No.1, on the basis of Adhlaphi and had fulfilled his obligation of developing as also digging a well, in this regard, reliance was also placed on the document, memorandum Exh.P.1. On appeal, filed by respondent, findings have been set aside vide judgment and decree dated 25‑4‑1995.

4. Learned counsel for the petitioner has contended that the Appellate Court has misread the evidence on record. According to Exh.P.2, petitioner is shown to be Adlaphidar in Khatooni No.269. In order to prove the memorandum, Exh.P.1 scribe's son as also two marginal witnesses were produced. Besides, petitioners have also led evidence to prove the possession of the suit property and while appearing as D.W.2. Natho has admitted about the possession.

5. Learned counsel for respondent has stated that this is clear case of forgery and fraud document Exh.P.1 has not been signed by the respondent, the evidence led by the petitioner have been disbelieved by the Court in appeal and rightly so, because both of them were only chance witnesses and have not proved the execution of this document in accordance with law. Besides, there is no independent evidence led by the petitioner that the suit land was given to him on Adlaphi and it was so developed.

6. I have heard learned counsel for the parties. The Appellate Court has only examined the entire evidence on the record and on the basis of appreciation has come to the right conclusion. My own finding is that marginal witnesses of the document Exh.P.1 have failed to prove its execution beyond doubt, when particularly signature of the respondent on Exh.P.1 when compared with his signature on the Wakalatnama and written statement also belie the fact of similarity. Moreover, petitioner has not applied for the examination of these signatures through a Handwriting Expert, particularly when the signature on Exh.P.2, does not even seem to have been made in any language discernible, either Urdu or English. Moreover, respondent No.1, was not the only legal heir of Imam Bakhsh who is alleged to have given the suitland to the petitioner as Adlaphi and there is nothing on the record to show if respondent No.1 had any authority on behalf of other co‑owners after the demise of Imam Bakhsh to acknowledge the right of the petitioner. It may be further stated that from the Khatooni on the record, which has been relied upon by the petitioner, it is not established that if the suit land is the same which is envisaged by this document. The admission attributed to D.W.2, Natho Khan, about the possession of the suit property is not well‑founded; he has not admitted that the petitioners are in possession of the suit land, rather he states that there is some one and half Kanal of land outside the Hevali of the respondent, at which the petitioner has sown cotton and is in possession thereof. This does not co‑relate the suit property with the one admitted by Natho Khan. No legal or factual infirmity has been shown in the impugned judgment and decree, calling for interference in revisional jurisdiction. This petition thus has no merits and is hereby dismissed. H.B.T./G‑1441/L Revision dismissed.