PLJ 2024 Lahore (Note) 119
Present: Shahid Bilal Hassan, J.
NADEEM AZAM--Petitioner
versus
PROVINCE OF PUNJAB THROUGH DISTRICT COLLECTOR,
etc.--Respondents
C.R. No. 14330 of 2024, decided on 14.5.2024.
Specific Relief Act, 1877 (I of 1877)--
----Ss. 42 & 54--Inheritance mutation--Oral gift--Suit for declaration and permanent injunction--Dismissed--Concurrent findings--Burden to prove--Oral gift was not documented in shape of mutation--Challenge to--Oral gift had two parts namely fact of oral gift which had to be independently established by proving through cogent and reliable evidence three necessary ingredients of a valid gift and secondly mutation on basis of an oral gift has to be independently established--Petitioner being alleged donee was under heavy burden to prove valid execution of oral gift because he could not take benefits from shortcomings in evidence of respondents rather he had to stand on his own legs--Courts below have rightly and minutely appreciated, assessed and evaluated evidence of parties and had reached to a just conclusion, concurrently, that petitioner had failed to prove his case by leading cogent, confidence inspiring and trustworthy evidence--Concurrent findings on record could not be disturbed in exercise of revisional jurisdiction under Section 115 of Code of Civil Procedure, 1908--Civil revision dismissed. [Para 3, 4 & 5] A, B, C & D
2022 SCMR 55, 2022 SCMR 64, 2022 SCMR 13, PLJ 2023 SC 8, 2014 SCMR 1469, 2014 SCMR 161, 2017 SCMR 679, PLD 2022 SC 13 and 2024 SCMR 916.
Chaudhry Amjad Pervez Hararr, Advocate for Petitioner.
M/s. Muhammad Tariq Bashir Awan, Ch. Najam-ul-Hassan, Malik Saleem Akhtar Kachhela, Muhammad Azhar Hayat Ranjha and Muhammad Ehsan Chaudhry, Advocates for private Respondents
Date of hearing: 14.5.2024.
Order
Precisely, the petitioner/plaintiff instituted a suit for declaration with permanent injunction against the respondents challenging the vires of inheritance Mutation No. 1115 dated 13.09.2021 with regards to the suit property by maintaining that the suit property was gifted out to him by deceased Muhammad Azam on 23.03.2015, which was duly contested by the respondents while submitting written statement. Out of the divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties was recorded. The suit was subsequently dismissed vide impugned judgment and decree dated 08.09.2023 by the learned trial Court and an appeal preferred there-against by the present petitioner was dismissed vide impugned judgment and decree dated 21.12.2023 by the learned appellate Court; hence, the instant civil revision.
2. Heard.
3. Considering the arguments advanced at bar and going through the record, it is observed that the claim of the petitioner rests upon the purported oral gift dated 23.03.2015, which was not further documented in the shape of mutation as the donor namely Muhammad Azam died on 16.08.2015.
Oral gift has two parts namely the fact of the oral gift which has to be independently established by proving through cogent and reliable evidence the three necessary ingredients of a valid gift as noted above and secondly mutation on the basis of an oral gift has to be independently established and proved by adopting procedure provided in the Land Revenue Act, 1967 and the Rules framed thereunder as well as the evidentiary aspects of the same in terms of the Qanun-e-Shahadat Order, 1984. However, in the present case, no subsequent mutation on the basis of the purported oral gift was entered into, so there arises no question of proving the second part of the oral gift. The petitioner could not lead any cogent, strong, unimpeachable and confidence inspiring evidence with regards to first part of alleged oral gift. Reliance is placed on Faqir Ali and others v. Sakina Bibi and others (PLD 2022 Supreme Court 85).
4. The matter in hand pertains to inheritable property because admittedly the property in question was owned by Muhammad Azam, father of the petitioner, so the petitioner being alleged donee was under heavy burden to prove valid execution of oral gift because he cannot take benefits from the shortcomings in the evidence of respondents rather he has to stand on his own legs as has been held in Mushtaq Ul Aarifin and others v. Mumtaz Muhammad and others (2022 SCMR 55) that:
‘As far as the contention of learned counsel for the respondents-plaintiffs that the appellants-defendants have not succeeded in proving their claim is concerned, it is a well settled principle of law that the plaintiffs cannot get benefit from the weaknesses of the defendants alone, rather they have to prove their case on their own strength. The initial burden of proof was upon the respondents-plaintiffs which they did not discharge, but the learned High Court has burdened the appellants-defendants for proving their stance which is not a correct approach.’
Moreover, in judgment reported as Mst. Parveen (deceased) through LRs. v. Muhammad Pervaiz and others (2022 SCMR 64), the Hon’ble Supreme Court of Pakistan has invariably held that:
‘On the death of a Muslim his/her property devolves upon his/her legal heirs. However, if any heir seeks to exclude the other legal heirs, as in the instant case by relying on a purported gift the beneficiary of such gift must prove it.’
The same view was also affirmed in Mst. Hayat Bibi and others v. Alamzeb and others (2022 SCMR 13).
5. Pursuant to the above, the learned Courts below have rightly and minutely appreciated, assessed and evaluated evidence of the parties and have reached to a just conclusion, concurrently, that the petitioner has failed to prove his case by leading cogent, confidence inspiring and trustworthy evidence. As such, the concurrent findings on record cannot be disturbed in exercise of revisional jurisdiction under Section 115 of Code of Civil Procedure, 1908. Reliance is placed on judgments reported as Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), Cantonment Board through Executive Officer, Cantt. Board Rawalpindi v Ikhlaq Ahmed and others (2014 SCMR 161), Muhammad Farid Khan v. Muhammad Ibrahim, etc. (2017 SCMR 679), Muhammad Sarwar and others v. Hashmal Khan and others (PLD 2022 Supreme Court 13) and Mst. Zarsheda v. Nobat Khan (PLD 2022 Supreme Court 21) wherein it has been held that:
‘There is a difference between the misreading, non-reading and misappreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law. This court in the case of Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630) held that the concurrent findings of three courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity effecting the merits of the case are not open to question at the revisional stage.’
Further in judgment reported as Salamat Ali and others v. Muhammad Din and others (PLJ 2023 SC 8), it has invariably been held that:
‘Needless to mention that a revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below.’
In this regard, safer reliance can also be placed on judgment reported as Mst. Farzana Zia and others v. Mst. Saadia Andaleeh (2024 SCMR 916) wherein it has invariably been held that:
‘13. We are sanguine that the High Court has the powers to reevaluate the concurrent findings of fact arrived at by the lower Courts in appropriate cases but cannot upset such crystalized findings if the same are based on relevant evidence or without any mis-reading or non-reading of evidence. The first appellate Court also expansively re-evaluated and re examined the entire evidence on record. If the facts have been justly tried by two Courts and the same conclusion has been reached by both the Courts concurrently then it would not be judicious to revisit it for drawing some other conclusion or interpretation of evidence in a second appeal under Section 100 or under revisional jurisdiction under Section 115, C.P.C. because any such attempt would also be against the doctrine of finality .......... The High Court cannot substitute its own findings unless it is found that the conclusion drawn by the lower Courts were flawed or deviant to the erroneous proposition of law or caused serious miscarriage of justice and must also avoid independent re-assessment of the evidence to supplant its own conclusion.’
6. For the foregoing reasons, the revision petition in hand comes to naught and the same stands dismissed.
(Y.A.) Civil revision dismissed
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