PLJ 2024 Lahore (Note) 239
Present: Shahid Bilal Hassan, J.
SHAUKAT ALI--Petitioner
versus
SHAGUFTA YOUNAS and others--Respondents
C.R. No. 1263 of 2012, decided on 24.9.2021.
Specific Relief Act, 1877 (I of 1877)--
----Ss. 42 & 54--Civil Procedure Code, 1908, O. VI, R. 4--Suit for declaration, permanent and mandatory injunction--Dismissed--Appeal Dismissed--Concurrent judgments--Preparatin of forged documents was not proved--Lawful owner--Lawful transfer of suit property--Bonafide purchaser--Appreciation of evidence--Challenge to--Petitioner could not lead any strong, cogent and confidence inspiring evidence because beside his deposition he produced only one witness who was husband of her sister in law and petitioner showed his ignorance as to what kind of forged documents were prepared and disputed property was got alienated in favour of Respondent No. 1-- No element of fraud could had been proved by petitioner, which otherwise was necessary to be pleaded and proved specifically, because mere assertion of fraud and misrepresentation was not sufficient but same had to be proved by person who asserts as such--Courts below have rightly appreciated that Mst. Suraya Begum, being lawful admitted owner of disputed property, with her own free will legally and lawfully transferred disputed property in favour of Respondent No. 1, who further alienated same in favour of Respondents No. 2 to 4--No misreading and non-reading of evidence, as well as illegality and irregularity alleged to have been committed by Courts below while passing impugned judgments and decrees, concurrently, warranting interference by High Court in exercise of revisional jurisdiction. Resultantly, concurrent findings on facts were not open to any interference at High that revisional stage--Civil Revision dismissed. [Para 3, 4 & 5] A, B, C & D
Ref. 2017 SCMR 679, 2014 SCMR 1469, 2014 SCMR 161.
Mr. Ateeq-ur-Rahman, Advocate for Petitioner.
Mr. Farhan Ahmad Bhatti, Advocate for Respondent No. 2.
Mian Muhammad Awais Mazhar, Advocate for Respondents No. 3 & 4.
Date of hearing: 24.9.2021.
Order
Precisely, the petitioner instituted a suit for declaration, permanent and mandatory injunction against the respondents contending therein that the property in dispute was allotted to predecessor in interest of the petitioner and Respondents No. 5 to 8 namely Ghulam Qadir and after his death the same was inherited in favour of his widow as well as petitioner and Respondents No. 5 to 8; that the petitioner and Respondents No. 5 to 8 transferred their share in favour of their mother namely Mst. Suraya Begum by way of Hibba and allegedly it was settled that after her death the same would devolve upon the legal heirs again; that after the death of Mst. Suraya Begum, the petitioner/plaintiff came to know that Respondent No. 5 fraudulently got alienated the property in question in favour of his wife i.e. Respondent No. 1 in connivance with the Defendant No. 9 purportedly through a forged gift and then the same was further transferred in favour of Defendants No. 2 to 4 through registered sale deed; that the petitioner asked to the defendants to get cancelled the said documents, time and again but they refused; hence, the suit. The respondents/Defendants No. 2 to 4 contested the suit by filing written statement. Out of the divergent pleadings of the Parties, the learned trial Court framed issues and evidence of the parties in pro and contra was recorded. The learned trial Court vide impugned judgment and decree dated 26.11.2009 dismissed suit of the petitioner. The petitioner being aggrieved, preferred an appeal, but the same was dismissed vide impugned judgment and decree dated 12.01.2012; hence, the instant revision petition.
2. Heard.
3. Considering the arguments and going through the record, it is observed that there is no denial to the factum that originally the disputed property was allotted to Ghulam Qadir, predecessor in interest of the petitioner and Respondents No. 5 to 8 and after his demise the same was devolved upon his legal heirs: widow, sons and daughters including the present petitioner and thereafter the sons and daughters with their free consent and will, without any duress transferred the same in favour of Mst. Suraya Begum, their mother through Hibba. The moot point here in this case that it is case of the petitioner that the transfer in favour of Mst. Suraya Begum was conditional that when she would take her last breath the disputed property would devolve upon the legal heirs including the petitioner but when she expired, it emerged that she had sold out the property in favour of the Respondent No. 1, her daughter in law, wife of the Respondent No. 5, brother of the present petitioner. However, in order to prove the said stance, the petitioner could not lead any strong, cogent and confidence inspiring evidence because beside his deposition he produced only one witness as P.W.2, who is husband of her sister in law (sister of his wife) and the petitioner showed his ignorance as to what kind of forged documents were prepared and the disputed property was got alienated in favour of the Respondent No. 1. Moreover, the P.W.2 was also ignorant about the alleged forgery and he was admittedly not present when the petitioner alongwith other legal heirs transferred the disputed property in favour of their mother Mst. Suraya Begum. So, his deposition has rightly been disbelieved and discarded. No element of fraud could have been proved by the petitioner, which otherwise was necessary to be pleaded and proved specifically, because mere assertion of fraud and misrepresentation is not sufficient but the same has to be proved by the person who asserts as such. Order VI, Rule 4 of the Code of Civil Procedure, 1908 provides that, ‘in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items necessary) shall be stated in the pleadings’. However, as stated above, the petitioner could not lead any confidence inspiring and trustworthy evidence to prove the alleged fraud.
4. As against the above, the respondents produced Record Keeper URO office as D.W.1, who categorically deposed that Mst. Suraya Begum appeared in the office of URO alongwith her application and Identity Card to get alienated the suit property in favour of Mst. Shagufta Younas; the said application was placed on record as Ex.D2, which bears her thumb impression and signatures. The petitioner did not make Any exertion to get compared the said thumb impression and sigares by moving an application in this regard before the learned trial Court; thus, the learned Courts below have rightly appreciated that Mst. Suraya Begum, being lawful admitted owner of the disputed property, with her own free will legally and lawfully transferred the disputed property in favour of Mst. Shagufta Younas, Respondent No. 1, who further alienated the same in favour of the Respondents No. 2 to 4 and transfer fee to the tune of Rs. 13,465/- was deposited where-after transfer of property was sanctioned vide letter Ex.D1; thus, they have rightly been determined as bona fide purchaser. Thus, the findings recorded by the learned Courts below being result of minute appreciation of evidence on record are upheld and maintained.
5. Pursuant to the above discussion, there appears no misreading and non-reading of evidence, as well as illegality and irregularity alleged to have been committed by the learned Courts below while passing the impugned judgments and decrees, concurrently, warranting interference by this Court in exercise of revisional jurisdiction. Resultantly, the concurrent findings on facts are not open to any interference at this revisional stage as has been held in Muhammad Farid Khan v. Muhammad Ibrahim, etc. (2017 SCMR 679), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469) and Cantonment Board through Executive Officer, Cantt. Board Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161).
6. In view of the foregoing reasons and while placing reliance on the judgments supra the civil revision in hand being devoid of any force and substance stands dismissed. No order as to the costs.
(Y.A.) Civil Revision dismissed
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