MUHAMMAD AKRAM MUNIR vs MUHAMMAD DIN and others
This matter originated as a petition for leave to appeal against a judgment of the Lahore High Court, which had reversed a trial court decree in a suit for declaration and consequential relief. The plaintiff, Gehna, had challenged a Power of Attorney and a subsequent Registered Sale Deed, alleging fraud in their execution. The trial court initially decreed the suit in the plaintiff's favor, finding the Power of Attorney fraudulent. However, the First Appellate Court reversed this finding, a decision upheld by the High Court in its revisional jurisdiction. The Supreme Court examined whether the High Court erred in its assessment of the evidence. The Court held that the First Appellate Court had correctly reappraised the evidence, including the testimony of the Sub-Registrar, the scribe, and marginal witnesses, to establish the validity of the Power of Attorney. The Supreme Court affirmed that findings of fact, absent misreading or non-reading of evidence, are binding in second appeal and cannot be disturbed merely because another view is possible. Consequently, the petition for leave to appeal was dismissed.
- Are findings of fact by an appellate court binding in second appeal if there is no misreading or non-reading of evidence?
- Can a High Court, in the exercise of its revisional jurisdiction, interfere with a finding of fact if the lower appellate court has correctly reappraised the evidence?
- Does the mere possibility of an alternative view of the evidence justify interference by a court of second appeal or revision?
- Section 96, Code of Civil Procedure 1908
- Section 115, Code of Civil Procedure 1908
ORDER
' CH. MUHAMMAD ARIF, J.---Leave to appeal is sought against judgment dated 1-7-1998 passed by a learned Judge in Chambers of the Lahore High Court, in R.S.A. No.83 of 1978 whereby the judgment of the 1st Appellate Court accepting the appeal against the judgment and decree of the trial Court dated 16-1-1971 was reversed and the suit of the plaintiffGehna remained dismissed.
2. A brief resume of the facts is that one Gehna filed a suit for declaration and consequential relief claiming title to land measuring 98 Kanals, 15 Marlas situated in village Kohluwala, Tehsil and District Gujrat. He, in fact, made a challenge to the Power of Attorney Exh. D/1 dated 20-10-1966 favouring respondent-Muhammad Din as also to a Registered Sale Deed dated 25-10-1966 Exh. D/2 based upon Exh.D/1. His case in the plaint was that he was tricked into the execution of the Power of Attorney on the pretext that only 11 Kanals of his mortgaged land will be got redeemed through the said Exh.D/1.
3. The suit was contested by the vendees and the general attorney and after trial the same was decreed by the trial Court vide judgment and decree dated 16-1-1971 on the basis of the finding that the general power of attorney Exh.D/1 was the outcome of fraud. Contention of the learned counsel that Muhammad Din was a stranger or that there was no need for him to sell the land is also belied by the record. According to P.W.4 the general attorney was a cousin of Gehna. It was an admitted position that during the pendency of the appeal before the learned First Appellate Court, Gehna gifted the said land to the present appellant.
' That judgments cited by the learned counsel proceed on their own facts. Cases of Haji Faqir Muhammad and Yar Baz Khan supra involved alienations in favour of close relatives by the attorney. Ma Than Than's case supra related to Burmeses adopted and the observation made was that whole demeanour of the witnesses in the witness-box was required to be seen. In the case of Mst. Mantura supra, the observation made was that circumstantial evidence may be sufficient but conjectures and suspicion could not be sufficient. In case of Raja Birendra Singh it was held that no direct evidence of fraud was needed. Sufficient evidence to infer fraud was required. Umrao Begum's case supra was a case of Pardanashin lady. Initially the case was contested but later her learned counsel confessed judgment.
' The direct evidence of execution cannot, on facts proved, be undone by the circumstances pointed out by the learned counsel. Findings of fact, in the absence of misreading or non-reading of evidence is binding in second appeal and even if another view of evidence was possible, could not be upset. Reference may be made to Sirbaland v. Allah Loke and others (1996 SCM R 575) and Hakim Ali v. Sakhi Muhammad and 16 others (1996 SCM R 354) in support of the above proposition.
The learned counsel was not able to point out any miscreading and non-rending of evidence warranting interference."
8. The learned counsel for the petitioner was not in a position to overcome the obvious hurdle in his way that the finding of fact recorded against his client by the Ist Appellate Court and upheld by the learned Judge in Chambers in the exercise of his jurisdiction under section 115, C.P.C. Does not appears to be deficient in any measure whatsoever. The learned counsel was at his lowest in contending that the judgment and decree of the trial Court favouring Gehna should not have been reversed as the same had correctly resolved the issue on 16-1-1971. We are afraid the learned Judge in Chambers was quite right in observing that the Ist Appellate Court correctly resolved the issue on 16-1-1971. Similar is the case with regard to the observations by the learned Judge in Chambers that the Ist Appellate Court correctly reappraised the entire evidence on the record and, after taking into consideration all the circumstances relied upon by learned counsel for the appellants there, reached the correct conclusion that "general power of attorney (Exh.D/l) was proved by examining D.W.1, Tehsildar/SubRegistrar, D.W.2 the scribe, D.W.3 the Stamp vendor, D.W.4 and D.W.5 the marginal witnesses..." (Underlining is for emphasis).
9. Moreover, it is not the case of the petitioner that the 1st Appellate Court was not possessed of the requisite jurisdiction under section 96, C.P.0 to reach the conclusions that it, did. Same is the position with regard to the impugned judgment dated 1-7-1998 passed by the learned Judge in Chambers. In the exercise of his jurisdiction under section 115, C.P.C.
10. No other point was urged.
11. For all that has gone before, the instant petition is dismissed and leave refused.