2008 PLP 1454 (SCMR)

KHALIL-UR-REHMAN RAMDAY, J.

This appeal, through leave of this Court, is directed against a judgment of the Lahore High Court, dated 17-2-1999 passed in Civil Revision No.73 of 1994 whereby the Honourable High Court had set aside the concurrent judgments of the learned trial as well as the learned Appellate Court and had decreed the suit of the present respondent.

2. Fazal Hussain respondent filed a suit in the Court of a learned Civil Judge at Talagang on 2-12-1988, claiming therein that he was owner in possession of a piece of agricultural land measuring 35 Kanals and 19 Marlas situated in Village Jhatla of Tehsil Talagang; that he had never exchanged the said land with the Haveli allegedly owned by Nabi Bukhsh defendant-appellant nor had he ever got any mutation of exchange entered or attested for the said purpose; that in collusion with the staff of the Revenue Department, Nabi Bukhsh defendant-appellant had got a Mutation bearing No.389 entered which was allegedly attested on 16-2-1984 evidencing the alleged above-noticed exchange; that Nabi Bukhsh was not in possession of the Haveli in question which was occupied by his sister nor was he its exclusive owner as the same was jointly owned by the said defendant-appellant along with his three brothers, a sister and their mother and finally that the mutation in question was the result of a fraud. Fazal Hussain plaintiff-respondent had consequently prayed that a decree be passed in his favour and against Nabi Bukhsh appellant-defendant declaring that the alleged exchange and the consequent Mutation No.389 dated 16-2-1984 was the result of fraud and was ineffective against his rights. As a result of the trial, a learned Civil Judge at Talagang dismissed the said suit and similar was the fate met by the appeal filed by Fazal Hussain plaintiff-respondent which was dismissed by a learned Additional District Judge at Chakwal through his judgment, dated 8-11-1993. A petition filed by him in the Lahore High Court under section 115, C.P.C. however, succeeded as a result whereof the judgments and decrees passed by the two learned subordinate Courts were set aside and the plaintiff-respondent's suit was decreed. Aggrieved of this revisional judgment of the Lahore High Court the defendant-appellant approached this Court with C.P.L.A. No.522 of 1999 which then culminated in the present appeal before us.

3. The learned counsel for the parties have been heard at some length and the record has been perused with the assistance of the said learned counsel in the light of the submissions made by them.

4. The Honourable High Court had reversed the concurrent findings of the learned subordinate Courts on the ground that the said findings were a result of complete misreading of the record and non-consideration of the factual and legal factors which had a direct bearing on the fate of the case. In reaching the said conclusion, the learned Judge in Chamber noticed that the case of the plaintiff-respondent was that he had never transacted the alleged exchange in question; that he had never appeared before any Revenue Officer for entering or for attestation of the mutation in question; that there was no question of exchanging his land with the Haveli allegedly owned by the defendant-appellant because the defendant was not its exclusive owner which had been inherited by him from his father and was owned jointly by him with his three brothers, a sister and his mother; that he had never parted with the possession of his land which possession was still with him; that similar was the position about the possession of the Haveli in question which had never been handed over to him as the same was in possession of a sister of the defendant-appellant, namely, Mst. Noor Bukhat and that the defendant-appellant who was a Patwari in the Revenue Department had misused his official position and had got the mutation in question fraudulently attested. The said claim of the plaintiff-respondent had been fully supported by P.Ws.2 and

3. It was rightly held by the Honourable High Court that the onus lay very heavily on the defendant-appellant to prove that a valid exchange of the properties in question had taken place between the parties; that the mutation in question had been attested with the consent and at the instance of the plaintiff-respondent and that a valid title had been passed on to the parties vis-a-vis the properties which were the subject-matter of the said alleged exchange. It was the claim of the defendant that the transaction regarding the alleged exchange had taken place at his brother's shop in the presence of his said brother. This brother of the defendant was never produced by the defendant in proof of the said agreement of exchange. The Patwari who had entered the mutation in question was also not produced at the trial and similar was the position regarding Malik Mumtaz Hussain Lamberdar and Malik Ahmad Khan Patidar who had allegedly witnessed the attestation of the mutation in question. It had also come on record that Nabi Bukhsh defendant was not the exclusive owner of the Haveli in question which he had inherited from his father and which was jointly owned by him along with the other heirs of his father. The defendant had never established his possession over the land in question and in fact the Khasra Gardawaris (Exhs.P.4 to P.6) demonstrated that the possession of the said land was still with the plaintiff party. The defendant had failed to show that the possession of the. Haveli in question had been handed over to the plaintiff-respondent and the defendant had also admitted, while under cross-examination, that he was a Patwari and had remained involved in criminal cases facing a charge of accepting illegal gratification. About the alleged admission of the plaintiff regarding the transaction of sale it had been found by the learned Judge in Chamber that the finding regarding the said admission was the result of a gross misreading of a plaint earlier filed by the plaintiff.

5. Having examined the record we are of the opinion that the findings and the conclusions reached by the learned High Court were well-founded in record and the learned High Court had rightly interfered with the findings of the learned subordinate Courts. Needless to add that no exception could be taken to the exercise of revisional powers and setting aside of the findings of the lower Courts even if they be concurrent if it had found that the said findings were based on misreading or non-reading of the material available on record.

6. In this view of the matter, we find-no merit in this appeal which is accordingly dismissed. There shall, however, be no orders as to costs. S.A.K./N-1/SC Appeal dismisse