2022 Y L R 742
[Balochistan]
Before Nazeer Ahmed Langove, J
Malik MUHAMMAD AMEEN ---Petitioner
Versus
Mst. SAEEDA MAQBOOL and others ---Respondents
Civil Revision No. 481 of 2020, decided on 29th October, 2021.
(a) Qanun -e-Shahadat (10 of 1984) ---
----Arts. 79 & 115--- Specific Relief Act (I of 1877), S. 42---Landlord---Title of landlord
challenged --- Relationship---Agreement, proof of ---Suit for declaration/ cancellation of
mutation entries, permanent injunctions --- Concurrent dismissal ---Petitioner /plaintiff
contended that he had purchased suit house from predecessor of respondents/ co- sharer vide
sale agreement with payment of half of the stipulated consideration while the mutation was
agreed to be transferred on payment of remaining amount; that petitioner continued paying monthly rent to the predecessor; that after demise of predecessor, his brother despite knowledge of sale deed had fraudulently mutated the house in his name and consequently sold the same ---Validity ---Petitioner's witnesses did n ot prove their presence at the time of
execution of agreement/payment to the predecessor of respondent ---No evidence regarding
payment ---Suit was filed as an attempt to extend illegal stay in suit house by taking shield of
fake/fabricated document having n o legal value ---Petitioner failed to satisfy that an
agreement to sell the suit house by one co -sharer in absence of other co -sharers could validly
make out case for transfer of entire un -divided property to another person---No question of
the specific per formance of the alleged agreement ---Petitioner admitted that he was inducted
as tenant by making payment of rent for many years ---Petitioner could not challenge the title
of the landlord without first surrendering the possession to him ---Revision petition was
dismissed accordingly.
(b) Constitution of Pakistan ---
----Art. 199--- Revisional jurisdiction ---Concurrent findings of courts below ---Scope ---Court
could not go beyond concurrent findings of the fact unless it could be shown that same were illegal; un lawful; based on the misapplication of relevant legal provisions; shocking;
perverse; artificial; fanciful; so patently improbable that accepting the same could amount to perpetuating grave miscarriage of justice; or if there had been any misapplication of principle
relating to appreciation of evidence; or if the finding could be demonstrated to be physically impossible.
Mujeeb Ahmed Hashmi and Sharjeel Haider for Petitioner.
Ms. Sana Suleman for Respondents Nos.1, 2, 3 and 14.
Allauddin Kakar, Assist ant Advocate General for Respondent No.15.
Date of hearing: 22nd January, 2021.
JUDGMENT
NAZEER AHMED LANGOVE, J .---This petition is directed against the judgment
and decree dated 23rd July 2020 (hereinafter the "judgment"), passed by the learned Senior
Civil Judge -III, Quetta (hereinafter the "trial court"), in Civil Suit No. 94/2016. As a result,
the petitioner's suit was dismissed. Assailed in Civil Appeal No.47/2020, but met with the
same fate, vide judgment and decree dated 18th November 2020 (herei nafter the "impugned
judgment"), passed by the learned Additional District Judge -VII, Quetta (hereinafter the
"appellate court"). Hence, this petition with the prayer to set aside the impugned judgments and decrees passed by the learned trial and appellate Court and decree the petitioner's suit in
his favour.
2. Heard the parties' learned counsel and gone through the record with their assistance.
3. Facts, in brief, are that the petitioner (plaintiff) filed a suit for declaration, specific
performance of th e agreement, cancellation of mutation entries and permanent injunction
against the respondents (defendants) with the averments that Muhammad Wali, son of Imam -
ud-din (predecessor -in-interest of respondents Nos.1 to 13), rented out his house bearing
Municip al No.6 -2/9, situated at Gul Muhammad Lane, Zonki Ram Road, Quetta (hereinafter
the "house -in-question") to Malik Muhammad Shafi (petitioner's father) in the year 1953.
Muhammad Wali died on 25th December 1961, survived by three sons, Aziz Ahmed, Wali Muha mmad and Saeed Ahmed; after their demise, respondents Nos.1 to 13 stepped into the
legacy of late Muhammad Wali.
After the demise of Malik Muhammad Shafi in the year 1980, the tenancy devolved
upon his legal heirs, including the petitioner. However, the l atter continued residing in the
house -in-question and further executed a rent agreement with Maqbool Ahmed, son of Saeed
Ahmed (respondents Nos.1 and 2's predecessor) on 8th February 2001.
The petitioner's case is that he had purchased the house -in-questi on from Maqbool
Ahmed, vide sale agreement dated 2nd September 2008 in consideration of Rs.20,00,000/ -
out of which Rs.10,00,000/ - was paid, while mutation in petitioner's name was agreed to be
transferred on payment of the remaining amount within one year . Meanwhile, the petitioner
continued monthly rent to late Maqbool Ahmed, after his demise (in 2014), to his widow (respondent No.1).
After having acquired knowledge of the transfer of the house -in-question on 23rd
September 2014 from the name of late Muhammad Wali to Saeed Ahmed (son); after his demise inherited to Manzoor Ahmed (respondent No.2), vide mutation No.1272 dated 3rd October 2014; who sold it to respondent No.14, vide mutation No.1301, dated 16th
November 2015; the petitioner instituted the instant suit with the averments that by way of
mutation No.1269, the legacy of late Muhammad Wali was not distributed amongst his remaini ng two sons namely Wali Muhammad (respondents Nos.4 and 5's predecessor) and
Aziz Ahmed (respondents Nos.6 to 13's predecessor). However, Manzoor Ahmed, brother of Maqbool Ahmed (predecessor of respondents Nos.1 and 2), had knowledge of the sale
agreement dated 2nd September, 2008, who instead of transferring the house -in-question in
the petitioner's name, fraudulently, got mutated the same in his name and later on sold it to
respondent No.14). Hence, this suit.
4. On service of notice, respondents Nos.1, 2, 3 and 14 (defendants) filed their written
statement, wherein they raised various legal objections regarding maintainability of the suit and contested the same on merits.
Out of the parties' pleadings, issues framed, the parties exhausted their respectiv e
sides and recorded their statements.
5. After hearing the arguments and evaluating the evidence, the learned trial court, vide
judgment and decree dated 23rd July 2020, dismissed the petitioner's suit, assailed in appeal but met with the same fate.
6. The petitioner's contention that he had purchased the house -in-question from Maqbool
Ahmed (son of Saeed Ahmed), who admittedly was not the recorded owner of the property. Surprisingly, during Saeed Ahmed's lifetime (the owner of the house -in-question), whic h too,
through an agreement dated 2nd September 2008, proved fake because it surfaced after the demise of Maqbool Ahmed for the first time.
Moreover, if the petitioner had purchased the house -in-question in 2008, how and in
which capacity, he continued ma king payment of rent till 2015.
Mst. Saeeda Maqbool and Mashood Ahmed Awan (respondents Nos.1 and 2) also
belied the petitioner's stance; executed a power of attorney in respondent No. 14's favour, and denied execution or existence of any agreement by the ir predecessor.
7. A careful perusal of the evidence furnished reveals that the petitioner's witnesses did
not support his case in true perspective regarding their presence at the time of alleged execution of the agreement or making payment of any amount t o Maqbool Ahmed
(respondents Nos.1 and 2's predecessor); there is no iota of evidence regarding payment of a penny in terms of cash, or through cheque.
The institution of the civil suit and denial of relationship by the petitioner was an
attempt to extend his illegal stay in the house -in-question by taking the shield of a fake and
fabricated document having no legal value.
8. The petitioner's learned counsel was also unable to satisfy that an agreement for the
sale of the house- in-question by one co- sharer in the absence of the other co -sharers could
validly make out a case for transfer of the entire un- divided property to another person. All
circumstances on the factual plane are sufficient to indicate no such transaction or agreement
for sale between the petitioner and Maqbool Ahmed (respondents Nos. l and 2's predecessor)
and that the sale agreement was not a genuine document. The petitioner was only a tenant in the house -in-question, and the question of tenancy was under adjudication on the crucial
date. There was no question of the specific performance of the alleged agreement. Learned
trial court rightly decided all the issues against the petitioner (plaintiff).
The petitioner's learned counsel stressed on the point that no statement of the
petitioner was recorded before the learned trial court; however, his statement on Oath (in written form) is available; he did not appear for cross -examination intentionally to make a
ground for case's remand; because in the first round of litigation, the c ase was remanded
mainly for cross -examination; such conduct is not appreciable.
9. In the instant case, the petitioner (tenant) had admitted that he was inducted as a
tenant by making payment of rent for many years, could not challenge the title of the landlord (recorded owner of the property) without first surrendering the possession to him,
but not followed.
10. Furthermore, the concurrent finding of facts and Law arrived at by two courts below
can only be disturbed if this Court concludes that the same a re illegal, unlawful based on the
misapplication of relevant law provisions; shocking; perverse; artificial and; fanciful. The petitioner failed to point out any, above -referred grounds for interference in the judgments
and decrees impugned in the instant case. Accordingly, there are concurrent findings of fact recorded by the learned courts below against the petitioner.
This Court cannot go beyond concurrent findings of fact "unless it can be shown that
the finding is on the face of it against the evidenc e or so patently improbable, or perverse that
to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any misapplication or principle relating to appreciation of evidence or finally if the finding could be demonstrate d to be physically impossible." No such thing could be brought on
record to warrant interference by this Court. Thus, the two courts' findings are not open to interference in the limited revisional jurisdiction of the High Court, albeit it may be, to some extent, erroneous on the point of fact and the point of Law, both.
11. The trial court passed a well -reasoned and speaking judgment, upheld by the appellate
Court, is based on correct appreciation of the evidence and relevant provisions of the Law; thus, t he same is not open to any exception. Hence, maintained. As a result, the petitioner's
petition is dismissed, with no order as to costs.
ZH/181/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.