1998 PLP 674 (SCMR)

KHALIL-UR-REHMAN KHAN, J.

The. petitioners seek leave to appeal against the order dated 22-4-1996 of the Lahore High Court, Lahore, whereby the Revision Petition filed under section 115, C.P.C. by the petitioners was dismissed in limine.

2. The respondents, claiming to be joint owners of the suit land, brought a suit for declaration that Sale Mutation No.951 dated 31-7-1993 in favour of petitioners Nos. l to 3 herein was void and illegal on account of alleged failure of consideration. It was asserted that on account of relationship, the plaintiffs being the real sisters of Muhammad Boota, petitioner No.4 herein and real paternal aunts of other defendants/petitioners Nos. l to 3 herein, who are sons of Muhammad Boota petitioner No.4, trusted their assurance to the effect that the sale price of Rs.1,30,000 will be paid to them after the attestation of the mutation as it was not safe to carry that much amount to the Katchery. But, after its attestation, they were put off on one pretext or the other and no money was paid to them. The petitioners/defendants controverted these assertions and the learned trial Court, after framing necessary issues and recording evidence produced by the parties, dismissed the suit on 25-10-1995. The appeal preferred was, however, accepted and the decree prayed for was granted on 9-4-1996. This led to the filing of revision petition by the petitioners before the High Court but the same was dismissed vide impugned order dated 22-4-1996.

3. Learned counsel for the petitioners argued that onus to prove issue was wrongly placed on the petitioners/defendants and evidence on record was not properly appreciated, by the learned Appellate Court and the High Curt in exercise of revisional jurisdiction. .

4. We have gone through the evidence on record and the impugned judgments/orders with the assistance of the learned counsel for the patties and find that the fate of the case stands sealed with the finding of fact recorded by the learned two Courts below, after proper appraisal of evidence. Neither any misreading, nor any non-reading of material piece of evidence could be pointed out. Learned Judge of the High Court was right in observing that as both the parties have produced evidence on the question of consideration, the laying of onus to prove the issue one way or the other is of no consequence, as in the circumstances of the case, no question of prejudice to the petitioners arises and that, in fact, it has not been shown as to how the petitioners have suffered any prejudice. Learned Appellate and Revisional Courts were also right in recording the inference that passing of payment of the sale price could not be established as Ihsan ul Haq Ihsan, petitioner No.1 herein, while appearing as D.W.3 in cross-examination pleaded ignorance as to how the sale price was shared by each of the plaintiffs. He also stated that he gave the amount to his father Muhammad Boota, petitioner No.4 he for onward payment to Mst. Rashidan Bibi but his father (Muhammad Boota petitioner No-4 herein) did not appeal to confirm this statement. The appraisal of evidence made . by the learned Appellate Court as well as by the High Court does not suffer from any legal infirmity. The finding of fact so recorded cannot be substituted by this Court. No case is, therefore, made out for grant of leave to appeal. The same is declined and the petition is dismissed. A.A. /1-11/S Leave refused,