2004 PLP 489 (SCMR)

ABDUL HAMEED DOGAR, J.‑‑‑Petitioners seek leave to appeal impugning judgment dated 29‑10‑2002 passed in Civil Revision No.66 of 1996 by a learned Judge in Chambers of Peshawar High Court, Abbottabad Bench, whereby it was dismissed and the judgment of the Appellate Court was maintained.

2. The background leading to the filing of the instant petition is that one Umar Khan was the owner of property consisting of Bungalow in Khasra No.353 and land measuring 13 Kanals, 6 Marlas in Khasras Nos.1298/397, 1299/397, 396 and 398 situated in Jhangi, District Abbottabad. He had two wives, namely, Mst. Hussain Afroze and Mst. Taj Bibi. Out of wedlock Mst. Taj Bibi had given birth to Ayaz Umar, Asrar Umar, sons, Mst. Rukhsana and Mst. Rani Gul alias Sahiqa Bibi, daughters, whereas from Mst. Hussain Afroze had given birth to Haq Nawaz Khan, Muhammad Fayyaz Khan, Mumtaz Umar Khan, Ihjaz Umar Khan, sons, Mst. Bibi Naseem, Mst. Zahida Perveen, Mst. Gul Nasreen and Mst. Shabnam Naheed, daughters, respondents Nos.5 to

12. On his death, the above mentioned property devolved upon the above said heirs, according to their respective shares, which was transferred in their names vide Mutation No.3521 attested on 28‑7‑1976. According to averments of the plaint, the plaintiff Mst. Taj Bibi became the owner of 51 / 144 share whereas remaining share to the extent of 93/ 144 was inherited by defendants Mst. Hussain Afroze and others. Rafiq Ahmad Khan purchased the suit property for a sum of Rs.4,50,000 vide registered sale‑deed dated 31‑8‑1976 which was got entered in Mutation No.4010, dated‑21‑7‑1979 and later on transferred vide gift Mutation No.4011 in favour of Arjmand Ara Begum defendant No.2/petitioner No. l his widow. It was pleaded in the plaint that plaintiff Mst. Taj Bibi in fact neither sold/transferred their share nor did she receive any sale amount. She had neither signed or put her thumb impression on any paper or registered deed nor appeared before Registrar at any time thus entire transaction was the result of fraud and collusion and was liable to be cancelled. As regards plaintiffs Nos. 2 to 5, they were minors at the time of said registry as such not binding upon them. Resultantly, it was prayed that the so called sale‑deed be declared void, invalid and without consideration. It was also prayed that the plaintiffs be given their shares through partition and rent at the rate of Rs.1,200 per month from June, 1978 onward.

3. The trial Court vide judgment dated 12‑12‑1980 decreed the suit in favour of plaintiffs Nos.2 to 5, the respondents and passed a preliminary decree for partition to the extent of 42/144 share whereas dismissed the suit to the extent of Mst. Taj Bibi and also did not allow mesne profits. This judgment‑was assailed in appeal by both the parties in Appeals 6/13 and 7/13 of 1991/95 and the learned District Judge, Abbottabad, vide judgment dated 12‑3‑1996 accepted the cross‑appeal of respondents, modified the judgment and decree and allowed 51/144 share in the suit property and also allowed amount of rent to the above extent of their ‑shares. Appeal No.6/13 of 1991/95 filed by the petitioners was also partly allowed and it was held that the improvement, if any, shall be counted in their lot at the time of physical partition of the suit property after the final decree.

4. The petitioners, feeling dissatisfied, challenged the above mentioned judgment through Civil Revision No.66 of 1996 which was dismissed on 29‑10‑2002 vide impugned judgment.

5. Mr. Muhammad Munir Peracha, learned counsel for the petitioners vehemently urged that the judgments of the learned Appellate Court as well as that of revisional Court suffer from misreading of the evidence on record and are liable to be set aside. According to him, it has been established on record that respondents Ayaz Umar and Mst. Rukhsana were major at the time of execution of the sale‑deed and they alongwith their mother Mst. Taj Bibi executed the same in favour of Rafiq Ahmad Khan the predecessor‑in‑interest of petitioners while undertaking that the sale‑deed would be executed in their, favour on attaining the age of the majority. He further contended that the finding of the trial Court that the sale consideration is proved on record is based on proper appreciation of the evidence. Even if, it is said that the sale consideration against the minors was invalid yet the sale consideration should have been ordered to be returned to the petitioners. He supported the judgment of the trial Court which according to him, was based on proper appraisal of evidence.

6. We have given our anxious thought to the contentions of the learned counsel for the petitioners and have gone through the record and the proceedings of the case in minute particulars.

7. We are of the considered opinion that the concurrent findings of fact recorded by the learned Appellate Court as well as the learned revisional Court on the factum that respondents Ayaz Umar and others were minors on 30‑8‑1976, the date of so called sale‑deed, is not open to any exception. Irrespective of above, well and cogent reasons have been advanced by the Appellate Court while modifying the judgment of the trial Court and granting a preliminary decree for possession through partition to the extent of 51/144 share to the respondents. Since Mst. Taj had specifically denied the execution of sale‑deed, as such, to prove its authenticity, it was incumbent upon the other side to produce the evidence of its attesting witnesses, which even otherwise was the requirement of provisions of Article 79 of the Qanun‑e‑Shahadat Order, 1984. Learned counsel for the petitioners has also failed to point out any legal or factual infirmity of misreading or non‑reading of the evidence to justify interference in the exercise of appellate as well as the revisional jurisdiction of the Courts below.

8. Resultantly, the petition being devoid of merit is dismissed and leave to appeal is refused. M.H./A‑2/S Petition dismissed.