2003 PLP 1324 (MLD)

6. Learned counsel for the petitioners has assailed the impugned judgment on the grounds that-- (i) evidence was not correctly appraised; (ii) mere absence of delivery of possession could not form basis for holding the transaction of exchange as illegal; (iii) onus of Issue No. 1 was wrongly placed on the defendants as it is settled law that a person who alleges fraud is bound to prove it; (iv) impugned judgment suffers from non-reading and misreading of evidence and is based oil surmises and conjectures; and (v) the learned Appellate Court did not record its findings Nos. 3 to 5.

7. Adverting to the first contention of the petitioners' counsel it may be observed that appraisal of evidence falls outside the scope of revision and revisional jurisdiction is not attracted merely because another view is also possible.

8. Referring to the second submission-of the learned counsel for the petitioners it may be observed that it is misconceived and devoid of force inasmuch as the impugned mutation was held illegal not on the basis of solitary ground of absence of delivery of possession under the exchange but in addition thereto on a number of other grounds as well which are recorded in the impugned judgment.

9. Third contention of the learned counsel for the petitioners is also misconceived inasmuch as according to Annexure `G', in the first-round of litigation, the onus of proving that impugned exchange mutation was result of fraud, was placed on the plaintiff and his suit was dismissed by the learned trial Court on 29-3-1992.

10. Appeal against that judgment was accepted by the learned Additional District Judge, Dera Ghazi Khan on- 15-12-1995 (Annexure 'T') and case was remanded after holding that the learned trial Court had erred in placing onus of proving Issue No. 1 on the plaintiffs when in fact the same should have been -placed on the defendants and it was further held that the said issue was defective. It was accordingly split up in two issues which are now Issue No. 1 and Issue No. 1-A.

11. Judgment of the learned Additional District Judge dated 15-12-1995 Judgment 'T') whereby burden of proving Issue No. 1 was placed on the defendants has attained finality as it was not assailed by the defendants in any higher forum. Now, therefore, the defendants (present petitioners) cannot object that onus of the said issue was wrongly placed on them.

12. Reverting to the fourth argument of the leaned counsel for the petitioners, it may be observed that the learned Appellate Court in its impugned judgment (Annex. A) paragraphs Nos.. 8 to 11 has elaborately discussed and correctly analysed the entire evidence produced by the parties.

13. Malik Jindo P.W. appeared in the witness-box and deposed that he had never appeared before any Revenue Officer in connection with the mutation of exchange, he never entered into any exchange transaction with the defendants and that the suit-land is still in his possession.

14. P.W.1 Haji Khuda Bakhsh son of Malik Jindo deposed that the suit-land is in their possession. Their residential houses are situated thereupon and it contains 100 trees of `Bairis', 200 plants of dates. Its market value is about 1 lac per `Bhigha' whereas value of the property allegedly exchanged is less than Rs.1,000 per 'Bhigha', market value of the suit-land alleged by this witness was not denied by the defendants.

15. In view of the evidence produced by the plaintiffs, the burden of proving, that the impugned mutation was valid and genuine shifted on the defendants.

16. D.W.1 Gul Hassan, marginal witness of the exchange mutation could not give the particulars of the land allegedly exchanged through the said mutation, neither he was aware if the lands mentioned in the mutation had been exchanged at the spot.

17. D.W.2 Aziz Muhammad, one of the defendants, admitted the possession of exchanged land was given on papers only and the suit-land is still in possession of the plaintiffs.

18. D.W.3 Malik Phulla, Lambardar who had verified the exchange mutation also owns property in the same Chak where the suit-land is situated. When questioned if he would exchange four Bhighas of his said land with fourteen Bhighas of land allegedly given in exchange, his answer was in the negative which proved that the suit-land was much more valuable than that which was allegedly given in exchange thereof. This witness also admitted that residential houses of the plaintiffs are situated in the suit-land and further admitted his close relations with the defendants.

19. Evidence produced by the defendants neither disclosed any reason for the exchange of extremely, valuable land with inferior land but also failed to prove that the exchange mutation was genuine, valid and was given effect to.

20. Learned counsel for the petitioners could not point out as to which portion of evidence was overlooked and which piece of evidence was misread.

21. Finding of the leaned Appellate Court on Issues Nos. 1 and 1-A being well-reasoned is, therefore, unexceptionable. Where the conclusions arrived at are based on sound and plausible reasoning, E interference in the revisional jurisdiction is not warranted.

22. Reverting to the last argument of the learned counsel for the petitioners, it may be observed that a perusal of para. 6 of the impugned judgment reveals that while arguing the appeal learned counsel for the petitioners (defendants) had confined his arguments only to the extent of findings given by the learned trial Court on Issues Nos. 1 and 1-A; hence in that event it was not mandatory on the part of the Appellate Court to have also recorded its findings on the remaining issues which findings were neither objected to nor any argument against those findings were addressed before it:

23. Issue No.2 is whether the suit is hit by section 42 of the Specific Relief Act. The suit was for declaration. Plaintiff's possession was admitted. Hence it was competent without seeking further relief and was maintainable.

24. Issue No.3 is whether the plaintiff is estopped by his conduct to bring the suit. The defendants could not prove that exchange was in fact made by the plaintiff or that under impugned mutation, the plaintiff had relinquished possession of the suit-land.

25. Issues Nos.4 and 5 relating respectively to valuation and rejection of plaint under Order VII, Rule 11, C.P.C. were decided by the learned trial Court against the defendants and findings on the said issues recorded by the learned trial Court were not agitated by the defendants' counsel at the time of arguing the appeal. Even now the learned counsel for the petitioners (defendants in the suit) could not show as to how the suit is improperly valued and at what ground the plaint was liable to rejection.

26. Learned counsel for the petitioners could not draw my attention to the breach of any provisions of law or commission of any error of procedure by any of the two Courts below.

27. For the reasons stated above, the revision petition is devoid of any merit. It is accordingly dismissed in limine. H.A.T./K-165/L Revision dismissed.