2019 PLP 429 (MLD)

CH. MUHAMMAD MASOOD JAHANGIR, J.

The compendium facts of the case were that Muhammad Aslam, father of the applicants and Muhammad Ashraf, predecessor-in-interest of respondents Nos.1(a) to 1(h) were brothers inter se and admittedly Muhammad Ashraf was the exclusive titleholder of the subject property. The applicants on 05.05.2008 instituted a declaratory Suit No.231-1 styled as "Muhammad Rehan, etc. v. Muhammad Ashraf, etc.", against their uncle Muhammad Ashraf and others for the confirmation of their ownership with regard to subject property contending therein that the latter through unregistered memo. of gift had transferred the property to their father and in acknowledgement thereof, a registered Power of Attorney was also executed in his favour, who subsequently transferred the same by means of another unregistered agreement of gift to the applicants. In contra, their uncle Muhammad Ashraf also instituted a rival Suit No.233-1 on 04.06.2008 to call in question the unregistered memos. of gift as well as registered Power of Attorney claiming those to be forged, fictitious and result of fraud as well as misrepresentation. Although in both the suits, the issues were settled separately and evidence was also recorded independently, yet at a later stage, with consent of the parties, both were consolidated and ultimately the suit of the applicants was dismissed, whereas the cross one was decreed vide single judgment and decrees dated 12.12.2012. Being offended, two appeals were preferred by the applicants, but without any success having been dismissed through common judgment dated 08.07.2014. The applicants being unhappy filed RSA No.213 of 2014 to call in question judgments of the Courts below, whereby their suit and appeal were dismissed and on the other hand, the connected Civil Revision No.3572/2014 was also preferred to assail the decrees whereby suit of Muhammad Ashraf respondent was decreed and appeal of the applicants was dismissed. It is pertinent to note that RSA No.231/2014 was fixed before this Court on 29.09.2014, which on the same day, was dismissed in limine, however, the connected Civil Revision was not fixed on that day and is still lingering on for its decision. Now through application in hand, the applicants have prayed for setting aside of order dated 29.09.2014 passed in RSA No.213/2014 through invocation of review powers.

2. Arguments heard and record perused.

3. Before adverting to the grounds raised herein, it will be advantageous to have a glance over the conclusion drawn by this Court to dismiss the afore-noted RSA, which is reproduced here:-- "

6. Both the Courts below have unanimously observed that the basic document was the agreement (Ex:P1), which did not find mention that defendant No.1 had gifted out the suit property, but according to the contents thereof defendant No.1 had given the possession of the suit property to his brother Muhammad Aslam and the same also did not disclose that any offer and acceptance regarding transaction of gift of the suit property had ever been made between the parties of the agreement. As such it has been rightly concluded by the learned courts below that Ex:P/1 at the most could not be treated as a gift deed wherein a specific clause was inserted that in case of default by the first party/defendant No.1, the second party Muhammad Aslam could have availed the remedy for the specific performance of the agreement.

7. The other document adduced by the plaintiffs was registered power of attorney (Ex:P2) of the similar date according to which defendant No.1 had appointed his brother Muhammad Aslam as attorney to administer arrangement of the suit property, but it did not find mention that any gift deed was executed on the same date in favour of Muhammad Aslam by defendant No.1, who was only authorized to gift or sale or exchange the property after the mutation. Admittedly no such mutation was ever executed in favour of Muhammad Aslam and it has been rightly concluded by the learned courts below that the plaintiffs failed to produce any valid document on the record to the effect that Muhammad Aslam predecessor-in-interest of the plaintiffs had become complete owner of the suit property, who was incompetent to further transfer the same to the plaintiffs through gift. Even as per settled principle of law a father being general attorney is not authorized to transfer the property of the principal to his own kith and kins. The said question has already been resolved by the august Supreme Court in the judgment reported as Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others (1994 SCMR 818)" After giving the detail of Mst. Shumal Begum's case, it was further held as under:-- "

8. The perusal of the said dictum rendered by the august Supreme Court of Pakistan has left no room for the learned counsel to controvert the findings arrived at by the learned court below, which are not found to be tainted with any misreading or non-reading of the evidence and cannot be upset merely on the technical ground that the learned trial court failed to frame the proper issues after consolidation of the suits filed by the parties against each other. Admittedly the trials in both the suits were conducted separately, which were consolidated at the final stage and the parties did not opt to lead any other evidence thereafter. It is found that both the parties produced their evidence before the learned trial court keeping in view their pleadings and the said evidence has been duly appreciated by both the courts below. The learned counsel for the appellant has also failed to point out that as to what prejudice was caused to the appellants by non framing of any other issue as claim set up by the appellants mainly rested on the documentary evidence, which has been rightly appreciated by both the court below in a true perspective. The august Supreme Court of Pakistan has already dealt with such question authoritatively while holding that where the parties have led evidence keeping in mind their pleadings, the objection regarding non-framing of any issue or improper framing of issue loses its weight."

4. Today Mr. Baleegh-uz-Zaman Ch. Advocate exhausted himself at full length and failed to make out a case within the encompass of rules 1 & 2 of Order XLVII of the Code, 1908 establishing that the judgment under review suffered from a patent error of law or fact on the face of record followed by material consequences on the merit of the case. Admittedly, neither Muhammad Ashraf transferred the title of the subject property to his brother Muhammad Aslam nor the latter could pass the better title to his sons/applicants. The father of the applicants being purported Agent of his brother was also not competent under the law settled by the apex Court to make a gift in favour of his sons. The conscious, deliberate and reasoning verdict after appreciating the material available on record was rendered by this Court, which cannot be called in question through the process of review either on the ground of erroneousness of decision or incorrectness of the view arrived at. The philosophy of finality attached to a judgment always remains the paramount consideration with the aim to put an end to litigation and review is merely an exception to this golden principle and can only be invoked if the error of fact or law should be certain, evident, patent and apparent on the face of the record, which should not require any elaborate probe to prove its incorrectness, otherwise in such a situation it would be a case of an appeal. Reliance can be placed on the judgment reported as Sh. Mehdi Hassan v. Province of Punjab through Member, Board of Revenue and 5 others (2007 SCMR 755), wherein it was concluded as under:-- "8.We having heard the learned counsel for the parties at length and perused the record with their assistance have found that the contentions raised by the learned counsel in support of this petition have been exhaustively dealt with in the judgment under review. This is settled law that the points already raised and considered before the Court, cannot be re-agitated in review jurisdiction which is confined to the extent of patent error or a mistake floating on the face of record which if not corrected may perpetuate illegality and injustice. The mere fact that another view of the matter was possible or the conclusion drawn in the judgment was wrong, would not be a valid ground to review the judgment unless it is shown that the Court has failed to consider an important question of law. The learned counsel has not been able to point out any such error of law in the judgment or interference in the review jurisdiction." Learned counsel for the applicants was abortive to pinpoint any such error of law in the judgment for interference in the review jurisdiction. Resultantly, this Petition having no force is dismissed with costs of Rs.100000/-. SA/M-191/L Petition dismissed.