1998 PLP 1193 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

The abovementioned two petitions for leave to appeal arise out of the proceedings of Suit No.251 / 1 instituted by Saadullah Khan, petitioner in Civil Petition No.98-P of 1995 (hereinafter to be referred as 'the petitioner') for declaration of title and possession by partition in respect of 3/5th share in the Bungalow situated in D.I. Khan (hereinafter to be called 'suit property') details whereof are given in the plaint. The suit property was originally owned by Sardar Muhammad Umar Gandapur. After his death, it was transferred in the name of Muhammad Akbar Khan who sold it to Haji Mitha Khan, petitioner in Civil Petition No. 176 of 1995 (hereinafter to be called as 'the respondent'). The petitioner instituted a declaratory suit claiming that he was entitled to possession of 3/5th share in the suit property on the ground that Muhammad Akbar Khan was not the sole owner of the suit property and that 3/5th share in the suit property, which was possessed by Taj Bibi, Siraj Bibi, and Ghulab Bibi-three sisters of Muhammad Umar Khan and the paternal aunts of Saadullah Khan was gifted by these ladies in his favour. The trial Court as well as first appellate Court concurrently held that petitioner was entitled to 3/5th share in the suit property on basis of the gift made in his favour by his three aunts, Taj Bibi, Siraj Bibi and Ghulab Bibi. The learned Judge in Chambers, however, reached the conclusion that only 1/5th share in the suit property, which the petitioner got through Ghulab Bibi, has been proved to have been gifted to him, as in the evidence only Ghulab Bibi had appeared and supported the gift of her share in the suit property in favour of petitioner. With regard to the share of Taj Bibi and Siraj Bibi the learned Judge reversed the concurrent findings of the two Courts below holding that the evidence on record did not justify interference that these two ladies had also gifted their share in the suit property in favour of petitioner. . In seeking leave to appeal, the learned counsel for petitioner contended that the learned Judge in Chambers was not justified in his revisional jurisdiction to interfere with the findings of facts which were neither based on misreading of evidence nor the Courts below had omitted to consider any important piece of evidence. The learned counsel for respondent on the other hand assailed the judgment of the High Court on the ground that the learned Judge while holding that 1 /5th share in the property was validly gifted in favour of Saadullah Khan, petitioner, by Mst. Ghulab Bibi, failed to consider the deed allegedly executed by three ladies namely, Taj Bibi, Siraj Bibi and Ghulab Bibi in favour of Akbar A Ali Khan and as such the finding of the learned Judge was arrived at in ignorance of documentary evidence already on record. The contention raised by the petitioner and the respondent need further examination and we, accordingly, grant leave to appeal in the above petitions. Parties to maintain status quo until disposal of the appeals. A.A. /S-1062/S Leave granted.