IN THE HIGH COURT OF SINDH
CIRCUIT COURT AT LARKANA
Civil Revision Application No.S-89 of 2021
DATE ORDER WITH SIGNATURE OF JUDGE
1. For orders on office objections.
2. For orders on C.M.A.No.649/2021 (E/A).
3. For hearing of main case.
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07.02.2022
Mr. Abdul Rahman A. Bhutto, Advocate for the Applicant.
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1. Over-ruled.
2. Granted; subject to all just exceptions.
3. The applicant has challenged a gift deed, admittedly executed, on the ground of same having been executed under duress, however, vide Judgment dated 12.02.2020, the learned 2nd Senior Civil Judge, Larkana was pleased to dismiss his suit. The pertinent findings are recorded hereinbelow:
“Moreover during the cross examination, plaintiff stated that gift deed was executed. He admitted his signature on gift deed. He stated that he gave statement in Hilal Pakistan newspaper dated 22.02.2015 that he voluntarily gifted the property with consent of family member. Defendant No.1 is in possession of property thus, all conditions fulfilled. The signature of plaintiff is very much similar on gift deed with his admitted signatures available on plaint and his evidence. Even otherwise, plaintiff did not produce alleged agreement to sale in Court to prove such assertion.
Sub-Registrar Larkana was examined at Ex.143 by the plaintiff. He also negates the plaintiff’s case. He has stated that as per gift deed, Muhammad Iqbal Rajpur is donor and Meeran Khan Durrani defendant No.1 is donee. He has stated that two photographs are attached with the gift deed of parties. He has admitted that gift deed showing the signature of donor on every and each page. He has stated that as per gift deed plaintiff was in possession of property and free from all charges and donee is his friend and being satisfied with his services gifted the property in his favour. Gift deed is absolute and complete in favour of donee and donor has no concerned with the property. Donee has accepted the gift and same is irrevocable. The story of plaintiff is that his son was kidnapped. He signed an agreement to sale instead of gift deed. He signed an agreement to sale for sake of his son. Aforesaid story has no force such as, plaintiff voluntarily admitted in cross examination availability of his signature on gift deed. Not only this but plaintiff also gave statement in newspaper that he gifted out the property. Agreement to sale not produced. Story does not appeal to prudent mind. Case laws submitted by the counsel for plaintiff are distinguishable from acts and circumstances of case.
In view of foregoing reasons this issue decided in negative.
Issue No.3
In view of discussion a issue No.2 plaintiff failed to prove that disputed gift is false and bogus therefore, plaintiff is not entitled for recovery of possession of suit property.
Issue No.4 & 5
Keeping in view my discussion on the issues No.1 to 3, the plaintiff is not entitled for relief as prayed, hence, the suit of plaintiff is hereby dismissed with no order as to costs. Let the decree be prepared accordingly.”
4. The appeal of the applicant was also dismissed vide Judgment dated 18.06.2021 and the operative findings are reproduced hereinbelow:
“Point No.1
Perusal of record shows that appellant filed suit for Declaration, Cancellation, Perpetual and Permanent Injunction pleading therein that he own agricultural land bearing Survey No.47(7-13) acres, survey No.49(5-11) acres, Survey No.50(2-26) acres, survey No.61 (00-13) ghunta at deh Dodai, Tapo Dodai, Taluka Larkana. In December 2009 plaintiff handed over above mentioned property to defendant No.1 verbally for its looking after as he is police officer and he was looking after the property in his absence. It is further averred that on 31.01.2010, appellant’s/plaintiff’s son went to the Mazar of Shaheed Benazir Bhutto at Garhi Khuda Bux Bhutto but his son did not come and went missing, he started search but remain failed. Appellant/plaintiff approached respondent/defendant No.1 and narrated above story and he advised him not register the F.I.R, he will return his son soon. On next day, appellant / plaintiff was present with respondent/defendant No.1 while such culprits who kidnapped his son of Zafar Iqbal talked with appellant/plaintiff. His son requested appellant/plaintiff to save his life and to do that whatever asked by respondent/defendant No.1. Meanwhile, respondent No.1/defendant No.1 said to plaintiff that culprits considering him a rich person and demanded huge ransom amount. Respondent No.1/Defendant No.1 asked the appellant/plaintiff to execute agreement to sale in respect of property only in order to show the culprits appellant / plaintiff has no landed property. Appellant/plaintiff did not agree but thereafter for the sake of his son, he executed agreement to sale in favour of respondent No.1/ defendant No.1 and his son was released. Appellant / plaintiff tried to register the FIR against the kidnappers but respondent/defendant No.1 stopped him from doing so otherwise he will be booked in false cases. Appellant/Plaintiff has pleaded that infact, landed property was given to respondent/defendant No.1 for looking after purpose and never transferred in favour of him but respondent/defendant No.1 playing fraud transferred the said property in his favour with malafide intention with ulterior motive to usurp the property of plaintiff through registered gift deed. Lastly plaintiff prayed that the act of respondent/defendant No.1 of fraudulent mutation entry and gift deed dated 15.2.2010 in respect of suit property may be declared null and void so also entry may be cancelled in the interest of justice. To prove his version, plaintiff examined himself at Ex.145 wherein he tried to substantiate his claim but during the cross examination, he negates his own case by stating that sale certificate was issued for entire survey number attached with the gift deed. He has admitted that fard certificate showing his name and same was issued in his favour. He has admitted that fard certificate showing entry No.256 in form VII-B. He has admitted that he got issued notice in daily Halal Pakistan dated 22.2.2015. It is relevant mentioned that in the said notice, he in clear terms stated that he gifted away the property in favour of respondent/defendant No.1 through registered gift deed. He has admitted that gift deed was executed on 15.10.2010. He has admitted that he has filed present suit on 25.2.2015. He has stated that the contents of plaint was not read over to him by his counsel. He has admitted that he handed over the possession to respondent No.1/defendant No.1. He ha admitted that gift deed showing his name CNIC number. He has admitted that his signature on gift deed and CNIC are same. He has admitted that he put his signature and thumb impression on gift deed due to his son but appellant/plaintiff pleaded in plaint that he signed an agreement. He has admitted that respondent No.1/defendant No.1 is in possession of the suit property now. He has admitted that he has not produced agreement to sale. He has admitted that he submitted news cutting of Halal Pakistan published on 22.2.2015 with his plaint in which he clearly stated that he voluntarily gifted away the property in favour of respondent No.1 / defendant No.1 with the consent of family members. Appellant/plaintiff had failed to bring own record evidence supporting her version regarding fraud etc as alleged in the plaint. Particular of fraud had also not been given nor prove on the record, hence, learned trial Court has assigned cogent and plausible reasons in impugned Judgment dated 12.02.2020.
From the material available on record, the impugned judgment dated 12.2.2020 and decree dated 14.02.2020 passed by learned trial Court are well speaking and well discussed and same do not suffer from any material illegality or irregularity, and do not require any interference by this Court.
In view of above discussion, the point No.1 is replied in negative.
Point No.2
In view of above discussions, impugned judgment dated 12.02.2020 and decree dated 14.02.2020 passed by learned Trial Court of II-Senior Judge, Larkana are maintained. The civil appeal in hand stands dismissed, with no order as to costs. Let the decree be prepared accordingly. The copy of this judgment and decree be sent to the learned Trial Court of IInd Senior Civil Judge, Larkana for information and compliance."
4. Learned counsel for the applicant has impugned the concurrent findings on the premise that the applicant’s contention of the transfer of property having taken place under duress has not been appreciated properly by the Courts below. Such contention however, could not be demonstrated from the record.The transfer of the property was duly borne from the record and even the respective registrar corroborated the factum. However, the allegation of duress could not be proven during trial and / or in appeal. Devoid of judicial recognition, the allegation of duress remains bald and unsubstantiated and no cause for interference therewith was made out in the revisional jurisdiction.
5. It is settled law that in the presence of concurrent findings, coupled with preponderance of claim supported by evidence, a revisional court ought not to interfere even if another view was possible. Reappraisal of evidence was even otherwise undesirable in revisional proceedings[1].
6. This Court has considered the contentions of the applicant and has noted the inability to cite a single ground based upon which the jurisdiction of this Court could be exercised under section 115 of Code of Civil Procedure. There is no suggestion that the impugned judgments are either an exercise without jurisdiction or a failure to exercise jurisdiction or an act in exercise of jurisdiction illegally or with any material irregularity.It is trite law[2] that where the fora of subordinate jurisdiction had exercised its discretion in one way and that discretion had been judicially exercised on sound principles the supervisory forum would not interfere with that discretion, unless same was contrary to law or usage having the force of law.
7. It is the considered view of this court that the applicants have remained unable to demonstrate any infirmity with the respective judgments, meriting interference in revision under Section 115 C.P.C, therefore, this revision is hereby dismissedin limine.