ASMATULLAH Versus AMANAT ULLAH

JAVED IQBAL, J.--- This appeal with leave of the Court is directed against judgment dated 31-3-2005 whereby the civil revision petition preferred on behalf of respondents has been accepted by the learned single Judge of Lahore High Court, Bahwalpur Bench, Bahawalpur, in chambers by means of judgment impugned by reversing the concurrent findings of fact recorded by the courts below.

2. Leave to appeal was granted by means of order dated 31-5-2005 which is reproduced herein below to appreciate the legal and factual aspects of the controversy:--

"Petitioner seeks leave to appeal against Lahore High Court judgment dated 31-3-2005 passed in C.R. No.232-D-1996/BWP allowing the same and thereby setting aside concurrent findings of fact recorded by the trial Court as well as the Appellate Court.

2. Petitioner Asmatullah and respondents Amanatullah, Muhammad Sarwar, Naimtullah being the sons of Aziz-ur-Rehman occupied House No.26/E, Chishtian City District Bahawalnagar in the year 1947 after their migration to Pakistan. According to respondent Amantullah, he along with his brothers and mother filed joint C.H. Form before the Settlement authorities for transfer of the property in their possession which was jointly transferred as such by the Settlement authorities in equal shares. On 18-2-1989, Amantullah filed a suit before the trial Court seeking a declaration of his title to the extent of 1/4th share and join possession thereof. By way of consequential relief, .he sought permanent injunction restraining the petitioner and his two brothers from interfering with his possession, right and interest in the property in suit. The suit was resisted by the petitioner and respondents Nos.2 and 3 on variety of grounds stating that, in fact, the property had been duly transferred by the Settlement authorities in favour of petitioner Asmatulah and his two brothers, namely, Muhammad Sarwar and Naimatullah in equal shares as Amanatullah had received cash compensation in lieu of his, share in the claim who had relinquished his rights in the property in the year 1959.

3. Both the parties adduced evidence. Upon consideration of the record and analysis of evidence, trial Court dismissed the suit vide its judgment and decree dated 12-6-1994. Appeal before the learned District Judge, Chishtian failed with result that revisional jurisdiction of the Lahore High Court was invoked whereby respondent's suit was decreed and judgments of the two Courts below were struck down leading to this petition.

4. It is, inter-alia, contended by learned counsel for the petitioner that respondent No.1 never questioned the correctness and validity of the transfer documents in respect of the property in suit before the Civil Court; that in fact, he had voluntarily relinquished his right and interest in favour of the petitioner and his two brothers and received cash compensation from the Settlement authorities; that it was wrongly held by the High Court that the affidavit dated 14-12-1959 being in the nature of relinquishment deed required compulsory registration; that indeed the Appellate Court while dismissing appeal of the respondent, had accepted cross objections of the petitioner to the effect that the suit was barred by time and that the Civil Court had no jurisdiction as PTO and PTD were lawfully issued by the Settlement authorities in the exercise of their jurisdiction in favour of the petitioner and his two brothers after adjustment of compensation books issued in their favour. It was lastly urged that learned Judge in the High Court completely misread the record and the findings of fact are not supported by the available record of the trial Court and that the points for determination of the civil revision were neither raised nor agitated by the respondent/plaintiff.

5. Upon consideration of submissions raised on behalf of the petitioner and going through the record, we are inclined to grant leave to examine, inter alia, the above questions and to consider whether learned High Court was justified in interfering with concurrent findings of fact in the exercise of its revisional jurisdiction and whether the judgment of the High Court is sustainable at law.

C.M.A. No.1398/2005

Pending the decision of the appeal, parties shall maintain status quo".

3. Heard Mian Allah Nawaz, learned Advocate Supreme Court on behalf of appellant who mainly argued that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is also contended that the concurrent findings of fact recorded by the learned trial and appellate courts could not have been reversed by the learned High Court in exercise of its revisional jurisdiction as conferred upon it under section 115, C.P.C. and that, too without any lawful justification which is lacking in this case. It is argued that the conclusion as arrived at by the learned High Court is not in consonance with the evidence which has been misinterpreted and misconstrued. In this regard a specific reference has been made to the statement of Amantullah (respondent) which, according to learned Advocate Supreme Court on behalf of appellant, has not been appreciated in its true perspective. It is, further argued that Amantullah (respondent) had relinquished all his rights qua the house in question before the Settlement Authorities and as such the past and closed transaction could not have been reopened.

4. Mr. Muhammad Munir Parach, learned Advocate Supreme Court entered appearance on behalf of respondents and vehemently repudiated the view point as canvassed at bar by Mian Allah Nawaz, learned Advocate Supreme Court on behalf of appellant and supported the judgment impugned for the reasons enumerated therein with the further submission that the compensation has nothing to do with the ownership of the house in question transfer whereof was made on the basis of fake and forged documents and the affidavit of Amantullah (respondent) was misinterpreted and misconstrued. In this regard a specific reference has been made to the answer given by Amanatullah (respondent) while answering one of the questions during cross-examination, which is as follows:--

5. We have carefully examined 'the respective contentions as agitated on behalf of the parties, scanned the entire record with the eminent assistance of learned counsel and perused the judgments of learned trial and appellate Courts as well as the judgment impugned. The pivotal question which needs determination would be as to whether Amanatullah (respondent) by relinquishing his right had received compensation in lieu of his 1/4th share in the house in question which was transferred in the name of remaining three brothers. The case of Amantullah (respondent) is that they have migrated from India to Pakistan and occupied the house in question located in Chishtian and subsequently all the brothers namely Amantullah, Naimtullah, Asmatullah, Muhammad Sarwar filed their claims on behalf of their deceased father which was accepted and the house in question was allotted in their favour and being owner in possession he could not have been deprived of his 1/4th share of the house in question which was got transferred by Asmatullah in his name fraudulently and by employing deceitful means. In order to substantiate his claim oral and documentary evidence was led. The main thrust of the arguments of learned Advocate Supreme Court on behalf of Amantullah (respondent) is that neither compensation was received nor any relinquishment deed was executed. The learned Advocate Supreme Court on behalf of Amanatullah (respondent) has also referred the statement of Muhammad Ali (P.W.1), Muhammad Amin, (P. W.2) and Amanatullah (respondent/plaintiff). It is significant to note that heavy reliance has been placed on the documentary evidence i.e. copy of Jamabandi for the year 1984-85 (Exh.P-1), voter list (Exh.P-2 & Exh. P-3), order passed by Deputy Settlement Commissioner, personal account (Exh. P-6), survey register (Exh. P-7) and copy of Electoral rolls (Exh.P-9). A carefully scrutiny of the evidence led by the appellant would show that he could not substantiate his claim by producing worthy of credence evidence. It has come on record, which went unrebutted, that the appellant had received compensation for relinquishing his claim amounting to Rs.4090 by means of cheque No.005450 dated 30-6-1964 and purchased a residential plot. It is worth mentioning that Naimatullah (respondent) got allotted a plot in Chishtian through Municipal Committee by filing an affidavit that he was shelterless having no other house in his name. The import and significance of the statement of Abdul Hameed, Patwari (PW-4) cannot be ignored who mentioned in a categoric manner that Municipal Committee, Chishtian had allotted plots in Baldia Colony to only those who were shelter less having no house. The allotment was subject to the condition that allottee should have no house of his own. Amanatullah (respondent) filed an application for allotment with an affidavit (Exh-D-1) stating that he had no house in his name and resultantly a Plot No.6 was allotted in Baldia Colony on 2-1-1975. The learned Advocate Supreme Court on behalf of Amanatullah (respondent) could not explain that as to how this affidavit was filed. Had Amanatullah (respondent) been the owner of house in question he would have not filed such an affidavit. In the same wake of events we have also examined the statement of Mst. Maryam Bibi who is the real sister of Amanatullah (respondent) by whom it is stated in an unambiguous manner that Amanatullah (respondent) had received compensation. Muhammad Sharif Alam (D.W.2) who is a Settlement clerk has also stated that Amantullah (respondent) has not deposited any amount/compensation book for allotment of the house in question. It is obvious that since he had received the compensation qua the house in question hence the compensation book was not deposited. The authenticity and genuineness of affidavit filed on behalf of Amanatullah (respondent) and Mst. Hajran cannot be questioned in the light of the statement of Ch. Rashid Ahmad, Advocate (D,W.3). As mentioned hereinabove the relevant record is indicative of the fact that Amanatullah (respondent) had shown himself shelterless and after having received the compensation, house in question was surrendered in favour of Asmatullah. The appellant thereafter shifted to two different places namely Diggi and Ghala Mandi. The striking feature of the case is that the order passed by the Settlement Authorities qua allotment and permanent transfer of the house in favour of Niamatullah, Asmatullah and Muhammad Sarwar was never challenged by Amanatullah (respondent). It is to be kept in view that the house in question was never ancestral hence 1/4th share cannot be claimed as a matter of right because Amantullah (respondent) had never deposited the requisite amount but on the contrary Naimatullah, Asmatullah and Muhammad Sarwar had deposited an amount of Rs.3200 each through compensation books bearing Nos. 278068, 278067 and 278070. The relinquishment deed (Exh-D-2) dated 14-12-1959 given in the shape of affidavit was never challenged which was attested by Oath Commissioner and it has rightly been taken into consideration as a document being 30 years old being a part of the relevant record pursuant to the provisions as contemplated under Article 100 of Qanun-e-Shahadat Order, 1984. The learned Advocate Supreme Court on behalf of Naimatullah (respondent) was asked pointedly that how C.H. Form read with order dated 18-12-1959 could have been ignored but no satisfactory answer could be given by the learned Advocate Supreme Court. The only inescapable conclusion would be that Naimatullah (respondent) had voluntarily withdrawn his name along with his mother by means of C.H. Form filed in the Settlement Department in the year 1959. There is no cavil to the proposition that the learned High Court while exercising its jurisdiction as conferred upon it under section 115, C.P.C. can interfere when the concurrent finding of fact is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view has been taken which is not in consonance with the evidence.

6. The questions i.e. as to how the house in question was allotted, whether it was allotted by the competent authority and the compensation was paid or otherwise, are the questions which hardly need any discussion as it would be a futile and an academic exercise. The nutshell of the above discussion is that the appeal is accepted, the judgment impugned is set aside and judgment dated 26-2-1996 passed by the learned District Judge-III, Bahawalnagar shall remain intact.

S.A.K./A-70/S Appeal accepted.