2009 SCMR 54

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Ch. Ejaz Yousaf, JJ

ALAMGIR KHAN through L.Rs. and others—-Petitioners

Versus

Haji ABDUL SITTAR KHAN and others—-Respondents

Civil Petition for Leave to Appeal No.2686 of 2005, decided on 18th July, 2008.

(On appeal from the judgment, dated 5-9-2005 in Civil Revision No.227 of 2003 passed by the Peshawar High Court, Abbottabad Bench).

(a) Civil Procedure Code (V of 1908)—

—-S. 115—Specific Relief Act (I of 1877), Ss.42 & 54—Revision—Maintainability—Concurrent finding of facts arrived at by the courts below did not suffer from misreading or non-reading of evidence nor there was any jurisdictional error in the judgments of courts below—High Court, however after, assessing the material on record, had ultimately come to the conclusion that there was no substance in the claim of the petitioner—Revision was not maintainable in circumstances.

(b) Constitution of Pakistan (1973)—

—-Art. 185(3)—Petition for leave to appeal—Civil matter—Concurrent findings by courts below—Effect—Supreme Court, would not normally go beyond concurrent findings of facts recorded by courts below unless it is shown that the findings are perverse, patently against evidence, or so improbable that acceptance thereof would tantamount to perpetuating a grave miscarriage of justice.

—-Art. 185(3)—Petition for leave to appeal—Civil matter—Findings of facts by courts below—Interference by Supreme Court—Principles—Supreme Court does not meddle with findings of facts reached by primary courts or High Court when it is established that findings of courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence.

Amir Abdullah Khan v. Kafaitullah Khan 2008 SCMR 756; Sheikh Fateh Muhammad v. Muhammad Adil PLD 2007 SC 460; Shaukat Ali v. Allied Bank of Pakistan Ltd. 2007 SCMR 198; Shafi Muhammad v. Khanzada Gull 2007 SCMR 368; Muhammad Zubair v. The State 2007 SCMR 437; Province of Punjab v. Muhammad Yaqoob Khan 2007 SCMR 554; Muhammad Sharif v. Muhammad Anwar 2007 SCMR 687; Mst. Muhammadi v. Ghulam Nabi 2007 SCMR 1047; Syed Ansar Raza Zaidi v. Chief Settlement Commissioner 2007 SCMR 910; Bashir Ahmed v. Muhammad Ali 2007 SCMR 1047; Punjab Industrial Development Board v. United Sugar Mills Limited 2007 SCMR 1394; Musarat Shaukat v. Safia Khatoon 1994 SCMR 2198; Naeem-ur-Rehman v. Abdul Aziz 1986 SCMR 61 and Abdul Hameed v. Ali Ahmed 1979 503 ref.

(d) Constitution of Pakistan (1973)—

—-Art. 185(3)—Petition for leave to appeal—Civil matter—Concurrent findings by courts below—Burden of proof—Burden lies heavily on the petitioner to show that concurrent findings of facts recorded by the courts below are not sustainable.

(e) Constitution of Pakistan (1973)—

—-Art. 185(3)—Petition for leave to appeal—No illegality or material irregularity in the findings of the courts below—Supreme Courts declined to interfere with such findings.

Abdul Karim Khan Kundi, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioners.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Respondent No.1.

Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.2.

Nemo for Respondents Nos.3 to 6.

Date of hearing: 18th July, 2008.

JUDGMENT

CH. EJAZ YOUSAF, J.—This petition for leave to appeal is directed against the judgment, dated 5-9-2005 passed by a learned Single Bench of the Peshawar High Court, Abbottabad Bench, whereby the revision filed by the petitioner was dismissed.

2. Briefly stated the facts of the case are as that respondent No.1 Haji Abdul Sattar alias Toti filed a suit for declaration that the Forest called Razika was originally owned by Seo, who sold the standing trees in Compartment No.5 to 11 to respondent No.2 Haji Qadoor vide agreements, dated 13-3-1986 and 25-6-1986. Later on respondent No.2 sold his rights in the suit forest to him i.e. the respondent No.1 vide registered sale-deed dated 22-3-1994 and received a sum of Rs.20,00,000 on account thereof. However, for the payment of remaining amount provisions were made in the said agreement. The following relief was sought in the plaint:–

(i) that the respondent No.1 being owner in possession was entitled to exploit the forest and respondent No.2 had no right to further sell the same to third party on better price;

(ii) that the claim of ownership of 37.5% share in the suit forest was illegal and further the agreement between petitioner and respondent No.2 regarding the suit forest was ineffective against the rights of respondent No.1.

In addition, the respondent No.1 also prayed for grant of perpetual injunction against the petitioner and the respondent No.2. Record reveals that the petitioner and respondent No.2 were summoned by the Court and since respondent No..2 admitted claim of the respondent No.1, therefore, the file was consigned to record vide order, dated 28-3-1995. The petitioner filed revision against the said order which was dismissed by the District Judge, however, the suit was decreed in favour of the respondent No.1 as against respondent No.2 on the basis of admission (Iqbal-e-Dawa) vide judgment dated 6-1-1997. The said order was assailed through writ petition which was accepted by the High Court and resultantly original suit was restored with direction to the trial Court to proceed with the matter in accordance with law, vide judgment, dated 15-5-1998.

3. The petitioner, after remand, relied on the written statement already filed. The respondent No.2 also filed written statement and admitted the execution of agreement, dated 22-3-1992, partnership with petitioner and its dissolution after settlement of account, but pleaded that the agreement, for want of certain contractual obligations at the part of the respondent No.1, was liable to be terminated. The trial Court, on the pleadings of the parties, framed 15 issues, and after recording evidence for and against the plaintiff, and after hearing arguments of the learned counsel for the parties, decreed the suit. The petitioner, being aggrieved, filed appeal which was dismissed by the District Judge. The petitioner then approached the Peshawar High Court by way of civil revision No.227 of 2003 which was dismissed vide the impugned judgment, hence this petition.

4. Mr. Abdul Karim Khan Kundi, learned counsel for the petitioner has contended that Courts below have erred in not placing reliance on the agreement dated 25-11-1986 between the petitioner and respondent No.2, the agreement for arbitration, dated 13-5-1992 and the arbitration award dated 10-1-1993, all of which related to the suit forest. It is further his grievance that the said agreement, which was not taken into consideration by the courts below, for the reason that the same was not registered document ought to have been taken into consideration as it did not require compulsory registration under the Registration Act. It is further his contention that the real owners of Seo village were illegally divested of their proprietary rights through the ex parte decree, hence, he pleaded that the Courts below have failed to note that the ex parte decree dated 17-3-1992 in Civil Suit No.200/1 of 1991 when the entire village proprietary was sued in representative capacity through some seventeen (17) defendants was not a valid decree in the eyes of law, hence no reliance could have been placed thereon.

5. Mr. Zulfiqar Khalid Maluqa, learned counsel for the respondent No.1, on the other hand, while controverting the contentions raised by the learned counsel for the petitioners, has submitted that no doubt that the forest in question originally belonged to the inhabitants of village Seo, from whom it was purchased by respondent No.2 who in turn sold the same to respondent No.1 vide registered sale-deed dated 22-3-1994, hence claim of the petitioner that on 25-11-1986, respondent No.2 had also entered into an agreement with him for exploitation of three forests, one of which was the suit forest, had no substance. He pleaded that earlier a suit for declaration and consequential relief with regard to the suit forest and on the basis of agreement of arbitration award as well as agreement, dated 10-1-1993 was also filed by the petitioner against the respondents but after receiving of a sum of Rs.10,00,000 (ten lac) he gave up his claim and the said suit therefore, was dismissed having not been pressed. He stated that Exhs.D.W.2/3 as well as P.W./B available at pages 126-133 and 134-135, respectively, of the paper book, are explicit in this regard. He pleaded that since there were concurrent finding of facts against the petitioner, therefore, the revision filed by him was rightly dismissed by the High Court.

6. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have gone through the record of the case, minutely, with their assistance.

7. It is claim of the petitioner that on 25-11-19086 the respondent No.2 had entered into an agreement with him for exploitation of three forests, one of which was the suit forest, the other two being Ghat Kandao/Zail Khad and Gabbner Nala. It is further his claim that a sum of Rs.10,00,000 (ten lac) was paid by him as advance for the sale consideration of agreement, dated 25-11-1986 relating to the suit forest and a sum of Rs.5,00,000 (five lac) was also paid relating to Ghat Kandao. He has pleaded that since a dispute arose between the parties, hence, the petitioner instituted a suit relating only to Ghat Kandao Forest, however, later on it was agreed between the parties on 13-5-1992, to refer the “whole dispute” relating to Ghat Kandao and that of suit forest to an Arbitrator who gave separate awards relating to the forests on 10-1-1993. It is his grievance that in flagrant disregard of previous agreements and the arbitration award, the respondent No.2 entered into an agreement on 22-3-1994 whereby he sold the suit forest called “Razikah” to respondent No.1 for a sale consideration of Rs.20,00,000 and in the backdrop of the above agreement the suit was instituted by respondent No.1 in the Court of Senior Civil Judge, Kohistan for declaration and permanent injunction claiming that he was entitled to exploit the suit forest since he had purchased the same from the respondent No.2 vide agreement dated 22-3-1994. It is also the grievance of the petitioner that though he had filed a written statement in the suit thereby objecting its maintainability on the ground that he i.e. the petitioner was owner of the suit forest to the extent of 37.5% share on the basis of the agreement, dated 25-11-1986 executed between him i.e. the petitioner and respondent No.2 and that the agreement executed between respondents Nos.1 and 2 to the extent of 37% share in the forest, was illegal and void, yet his claim was not entertained by the trial Court and suit of the respondent No.1 was decreed on 31-7-2002 against the petitioner and respondents Nos.2 to 5 against which the appeal and revision filed too, remained unsuccessful.

8. Admittedly there is concurrent finding of facts against the petitioner by both the Courts below i.e. the trial as well as the First Appellate Court. The learned Judge in the High Court having found that respondent No.2 in the year 1986 had purchased the rights to exploit the suit forest from its original owner i.e. Seo which transaction subsequently, was confirmed by a court decree, dated 13-3-1992 (Exh.D.W.1/D-1) and transfer of rights by the respondent No.2 in favour of respondent No.1 vide registered agreement dated 22-3-1994 (Exh.P.W.1/1), the suit filed by the respondent No.2 was rightly decreed by the trial Court in his favour. It was categorically observed by the learned Judge in the High Court that since the petitioner had failed to substantiate his claim regarding 37.5% share in the suit forest, therefore, he had no legal claim against respondent No.2. Learned Judge in the High Court had also, on the basis of record, repelled the contention of learned counsel for the petitioner that the petitioner was owner of the suit forest to the extent of 37.5% share and the agreement i.e. Exh.P.W.1/1 to that extent was void in view of agreement/memorandum of understanding, dated 25-11-1986 because as per the said memorandum of understanding, which was written on a plain personal letterhead pad of the petitioner, and suffering from cuttings in writing at various places with no initials thereon to verify the same, had never resulted into a formal agreement as required by clause 8 of the said MOU which envisages execution of an agreement, hence, no right could have been claimed on the basis thereof. It would be advantageous to have a glance at the relevant discussion which reads as follows:–

“The contention of the learned counsel that the petitioner is owner to the extent of 37.5% share in the suit forest and the agreement (Exh.P.W.1/1) to that extent is void in view of agreement/memorandum of understanding dated 25-11-986 (Exh.D.2/1), agreement for arbitration dated 13-5-1992 (Exh.D.W.1/3) and arbitration award (Exh.D.W.7/1), is without any substance. The record reveals that the agreement/MOU (Exh.D.W.2/1) was executed between Haji Qadoor (respondent No.2), Haji Amber on the one part and Alamgir (petitioner) on the second part in respect, of forest called “Rajankai”. Haji Amber was shown share-holder in the above forest to the extent of five Annas. The agreement/MOU had also referred to the payment of Rs.10,00,000 to respondent No.2 and so is found mentioned in the written statement of the petitioner that respondent No.2 had received Rs.10,00,000 on 20-11-1986 from him. The petitioner appeared in Court as D.W.2 and deposed that he had made the payment to respondent No.2 in March, 1986 but his witnesses in Court had categorically denied making of said payment before them. The agreement/MOU was written on the personal letterhead pad of petitioner. There were cuttings in the writing at various places with no initial thereon to verify the same. The clause 8 of the agreement/MOU envisaged execution of a formal agreement on stamp paper, which was never executed. The petitioner (D.W.2) confirmed this fact in Court that he is in possession of the blank stamp paper and has been holding the same for the last sixteen years but no formal agreement was executed between them. The agreement/MOU was scribed by petitioner having two marginal witnesses namely, Sher Bahadar and Saeed Ullah. The petitioner, in order to prove its execution, could produce only one marginal witness (D.W.3) and, besides second marginal witness, Haji Amber shown as partner/share-holder in the suit forest was not produced. The petitioner did not confront respondent No.2, when appeared in Court, with the agreement/MOU or his signature thereon and no question whatever was asked regarding its execution. This document (agreement/MOU) was executed between three persons but the third share-holder, Haji Amber is not visible anywhere in the suit record. The agreement/MOU relates to Rajankai forest and not to Razika and it was not an agreement but the expression of intention of parties to enter into formal agreement, which intention was never materialized. Since the agreement/MOU was an informal one with above referred weaknesses, therefore, a very heavy burden, more heavier than what was required by Article 79 of Qanun-e-Shahadat Order, 1984, was on the petitioner’s shoulders to prove, of course on the balance of probabilities, that an agreement was executed, rights and obligations thereunder were created and parties had acted thereunder but he could not discharge his burden.”

The learned Judge in the High Court, after assessing the material on record including the arbitration award Exh.D.W.7/1 Mark “A”, ultimately came to the conclusion that there was no substance in the claim of the petitioner and therefore, concurrent finding of facts arrived at by the Courts below did not suffer from misreading or non-reading of evidence nor there was any jurisdictional error in the judgments of the Courts below and thus, the revision was not maintainable. It is well-settled principle of law that this Court does not normally go beyond concurrent findings of facts recorded by the Courts below unless it is shown that the findings are perverse, patently against evidence, or so improbable that acceptance thereof would tantamount to perpetuating a grave miscarriage of justice. It is also well-settled that this Court does not meddle with findings of facts reached by primary Courts or High Court when it is established that findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence. In this view, we are fortified by the following reported judgments:—

(i) Amir Abdullah Khan v. Kafaitullah Khan 2008 SCMR 756, (ii) Sheikh Fateh Muhammad v. Muhammad Adil PLD 2007 SC 460, (iii) Shaukat Ali v. Allied Bank of Pakistan Ltd. 2007 SCMR 198, (iv) Shafi Muhammad v. Khanzada Gull 2007 SCMR 368, (v) Muhammad Zubair v. The State 2007 SCMR 437, (vi) Province of Punjab v. Muhammad Yaqoob Khan 2007 SCMR 554, (vii) Muhammad Sharif v. Muhammad Anwar 2007 SCMR 687, (viii) Syed Ansar Raza Zaidi v. Chief Settlement Commissioner 2007 SCMR 910 (ix) Mst. Muhammadi v. Ghulam Nabi 2007 SCMR 1047 (x) Bashir Ahmed v. Muhammad Ali 2007 SCMR 1047, (xi) Punjab Industrial Development Board v. United Sugar Mills Limited 2007 SCMR 1394, (xii) Musarat Shaukat v. Safia Khatoon 1994 SCMR 2198, (xiii) Naeem-ur-Rehman v. Abdul Aziz 1986 SCMR 61 and (xiv) Abdul Hameed v. Ali Ahmed 1979 SCMR 503.

This being practice and rule of this Court in civil petitions for leave to appeal, the burden lies heavily on the petitioner to show that the concurrent findings of facts recorded by the Courts below are not sustainable.

9. We have ourselves scanned the entire material on record. We are unable to find any illegality or material irregularity in the findings of all the Courts below, hence we are not inclined to interfere with the same in exercise of our constitutional jurisdiction.

10. Upshot of the above discussion is that this petition being misconceived is hereby dismissed and leave is refused.

M.B.A./A-28/SC Petition dismissed.