1998 SCMR 2730

MUHAMMAD MURTAZA Versus MUHAMMAD MUJTABA KHAN,

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Citation1998 SCMR 2730

CourtSupreme Court of Pakistan

Case No.Civil Petition for Leave to Appeal No.251 of 1996

Date1998-03-30

Judge(s)Irshad Hasan Khan and Sh. Ijaz Nisar

Authored byIrshad Hasan Khan

ResultLeave refused

IRSHAD HASAN KHAN, J.--- Leave to appeal is sought against the judgment dated 14-4-1996 passed by a learned Single Judge of the Peshawar High Court, Peshawar in Civil Revision No.6562 of 1994.

2. The petitioner/plaintiff challenged the genuineness of 'Tamleek' deed lExh.P.W.I/2) whereby the petitioner gifted his share of the said property in favour of defendant/respondent No. 1. The trial Court dismissed the suit on 6-6-1993 on the ground that it was genuinely executed by the petitioner and respondent No.2 herein in favour of respondent No. 1.

3. On appeal, the learned Additional District Judge affirmed the findings of the trial Court vide judgment dated 11-7-1994. In revision, the findings of the trial Court on genuineness of the gift-deed were upheld by the High Court and the case was remanded to the trial Court for assessing the cost of improvement allegedly made by the petitioner.

4. Mr. Muhammad Munir Peracha, learned counsel for the petitioner vehemently argued that all the three Courts below non-suited the petitioner/plaintiff on the ground that he was leading evidence contrary to the pleadings, inasmuch as, it was wrongly stated that the petitioner ever denied the gift deed. Mr. M. Sardar Khan, learned counsel for the respondents/caveator rightly drew our attention to the testimony of Muhammad Murtaza petitioner who appearing as P.W.5, clearly stated:--

5. The controversy raised herein is concluded by a concurrent finding of fact by the Courts below. The learned counsel for the petitioner has not been able to point out any misreading/disregard of material evidence on record. The impugned judgment does not suffer from any legal infirmity warranting interference. Resultantly, the petition is dismissed and leave refused.

6. Before parting with the judgment, it may be observed that this order shall not affect the review petition filed by respondent No.1 challenging the direction of the Trial Court regarding alleged improvement/construction made by the petitioner Clearly, the review petition shall be decided on its own merits.

A. A./M-114/S Leave refused.