FAZAL KARIM vs ABDUL MANAF And Another

MUHAMMAD YUNUS SURAKHVI, J.---This appeal, with the leave of the Court, is directed against the judgment and decree passed by the High Court on April 13, 1996, whereby the second appeal filed by the appellant herein was dismissed.

2. The facts, leading up to the present controversy, are that the appellant plaintiff filed a suit for cancellation of gift-deed executed by him in favour of his son, Abdul Manaf and the mutation sanctioned on its basis. The said gift-deed was executed on April 4, 1972, but subsequently a gift- deed of the same land was executed by Abdul Manaf in favour of his wife, Mst. Khurshid Bibi, respondent No.2. Both the gift-deeds were challenged on the ground that the same were invalid on account of non-delivery of possession to the donees

3. The learned Sub-Judge after conclusion of the trial of the suit dismissed the same. The appeal taken before the learned District Judge Mirpur also failed. Second appeal preferred before the High Court was again dismissed vide the impugned judgment and decree which is the subject of present appeal.

4. It was observed by the Courts below as well as the High Court that plaintiff-appellant could not substantiate his plea for non-delivery of possession at the time of execution of gift-deed and that the suit filed by the plaintiff appellant was hopelessly time-barred.

5. In support of appeal it was vehemently contended by Ch. Muhammad Bashir, the learned counsel for the appellant that the Court below as well as the High Court erroneously came to the conclusion that the possession of the suit land was delivered to the donees at the time of execution of the gift-deed. Explicit reliance was placed on a copy of Khasra-Girdawari pertaining to Kharif 1978 to Rabih 1989. Wherein the possession to suit land is entered in the name of Aisha Bi. Nazam Bi and Fazal Karim from Kharif 1985 to Rabih 1989 and on the statement of one Muhammad Iltaf produced by the plaintiff-appellant. The learned counsel emphasised that all the Courts have misread the evidence and did not appreciate the same in its true perspective. It was also argued that the donee did not appear in the trial Court for getting his statement recorded in support of his claim and as such the inference would be against him. Meeting the point of limitation the learned counsel pointed out that at the time of execution of the first gift-deed the possession was not delivered to the donee who later on transferred the suit land through another gift-deed in favour of his wife on October 26, 1988. Thus, the suit filed in the year 1989 was well within time.

6. Controverting the arguments advanced by the learned counsel for the appellant, Ch. Muhammad Azam Khan, the learned counsel for respondents, strenuously submitted that the findings of fact have been concurrently recorded by the trial Court and the learned District Judge and the same were approved by the High Court. The High Court according to the learned counsel had no competence to upset the concurrent findings and appreciation of evidence by substituting its own opinion. The learned counsel submitted that the suit filed by the plaintiff-appellant was barred by limitation as the same was filed nearly after about 17 years and as such the same was liable to be dismissed.

7. After hearing the respective contentions of the learned counsel for the parties and perusing the record, we found that the trial Court as well as the District Judge have concurrently observed on the basis of statement of Munshi Abdul Qayyum Patwari adduced by the plaintiff, who categorically stated that the copy of Khasra-Girdawari Exh. P/A was not in accordance with the existing position of the suit land on the spot. It was also deposed by the said witness of the plaintiff that the entries in Khasra-Girdawari do not tally with the entries recorded in Jamabandi 1.976-1977 wherein donee Abdul Manaf is entered into the possession of the suit land. The learned District Judge has also reiterated the same position. As regards the statement of one Muhammad Iltaf at one place it was stated by the said witness that at the time of execution of gift-deed the' possession was handed over to Abdul Manaf but at another place the same witness stated that he did not know as to whether the possession of the suit land was delivered to donee or not. Both the trial Court and the District Judge have formed the opinion that the suit filed by the appellant was barred by limitation as the same was governed by Article 91 of the Limitation Act for which the period of limitation is three years. The High Court has also concurred with the same view.

8. From the perusal of the judgments of Courts below and the High Court it cannot be said that the evidence on record was misread by the said Courts. On the other hand all the Courts properly attended the points in controversy between the parties. It is practically a settled law that concurrent findings of fact recorded by the trial Court and the first appellate Court cannot be disturbed by the High Court, howsoever erroneous they may be but in the instant case the findings recorded by the Courts below cannot be termed as erroneous particularly so when the same were approved and confirmed by the High Court.

9. In this view of the matter, finding no force in this appeal, it is hereby dismissed with costs.