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Petitioner: SHAHD MENA VS Respondent: GUL SADA KHANHonorable Justice Talaat Qayyum QureshiAmanullah Khan Khattak,M. Qasim Khattak
2007 C L C 143
2007 C L C 143
[Peshawar]
Before Talaat Qayyum Qureshi, J
SHAHD MENA----Petitioner
Versus
GUL SADA KHAN and 2 others----Respondents
Civil Revision No.95 of 2006, decided on 13th October, 2006.
Specific Relief Act (I of 1877)---
----S. 42---Suit for declaration---Plaintiff had sought declaration to the effect that she was owner of suit-land and that mutation of said land attested in favour of defendant was based on fraud; and same being illegal was ineffective upon her rights---Concurrent dismissal of suit---Plaintiff, in revision, had alleged that she was illiterate, ignorant, Pardanasheen lady and defendant had fraudulently transferred her entire share in the property in dispute in his name---Claim of defendant was that sale mutation of property in dispute was attested in his favour and that he had paid sale consideration to plaintiff and that plaintiff was fully aware of sale transaction---Sale transaction had been admitted by plaintiff herself in her statement when she was examined as witness---Plaintiff's own witness had also admitted in his statement that in his presence three ladies including plaintiff had affixed their thumb impressions on the mutation through which land in dispute was transferred in the name of defendant---Said evidence had shown that plaintiff had not only knowledge of sale transaction, but was also fully aware of the fact that defendant had constructed his house on the suit property more than 10 years back from the date of filing of the suit---Courts below had rightly appreciated evidence available on record---In absence of any misreading/non-reading of evidence or illegality or any material irregularity, or any jurisdictional error or defect in impugned concurrent findings recorded by the Courts of competent jurisdiction, same could not be interfered with by High Court in exercise of its revisional jurisdiction.
2005 SCMR 1832; PLD 1959 (W.P.) Lah. 295; KLR 1985 Civil Cases 84 and 2001 CLC 810 rel.
Amanullah Khan Khattak for Petitioner.
M. Qasim Khattak for Respondents.
ORDER
TALAAT QAYYUM QURESHI, J.--- The petitioner-plaintiff filed suit against the respondents/defendants for seeking declaration to the effect that she was owner to the extent of her Shari share in land measuring 57 Kanals, 3 Marlas comprising Khasra Nos.42, 43 and 93, Khata No.195/176 situated at Mauza Jehangiri Tehsil Takht Nasrati District Karak and Mutation No.1095 attested on 5-9-1988 was based on fraud, illegal, hence ineffective upon her rights. The said suit was resisted by respondent/defendant by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties dismissed the suit vide judgment and decree dated 26-1-2005. Feeling aggrieved with the said judgment and decree, the petitioner filed appeal in the Court of learned Additional District Judge, Karak at Takht Nasrati, but the same was also dismissed vide judgment and decree, dated 12-9-2005. Being not contented with the judgments and decrees of the Courts below the petitioner has filed the revision petition in hand.
2. Mr. Amanullah Khattak, Advocate the learned counsel representing the petitioner argued that the petitioner is an illiterate, ignorant, Pardanasheen lady and respondent No.1 had fraudulently transferred her entire share in the property in dispute in his name. Having come to know about the fraud committed by respondent No.1, the petitioner/plaintiff immediately filed the suit, which was in time.
3. It was also argued that although it was burden of respondent No.1 to prove that the sale transaction was proper, fair and in accordance with law and that the suit filed by the petitioner/plaintiff was barred by time, but he failed to discharge the said burden. Reliance in this regard was placed on 2005 SCMR 1832.
4. It was further argued that the Courts below have failed to exercise jurisdiction vested in them and the impugned judgments and decrees were based on misreading and non-reading of evidence.
5. On the other hand Mr. M. Qasim Khattak, Advocate the learned counsel representing the respondent on pre-admission notice argued that sale Mutation 1095 was attested in favour of respondent No.1 on 5-9-1988 and that respondent No.1 had paid the sale consideration to the petitioner/plaintiff and she was fully aware of the sale transaction.
6. It was also argued that burden to prove that the suit filed by the petitioner/plaintiff was within time lies upon the petitioner/plaintiff, but she failed to discharge the same. Reliance in this regard was placed on PLD 1959 (W.P.) Lah. 295; KLR 1985 Civil Cases 84 and 2001 CLC 810.
7. I have heard the learned counsel for the parties and perused the available record.
8. The main question which requires consideration in this case is as to whether the petitioner/plaintiff had the knowledge of the sale transaction in favour of respondent No.1 and that suit filed by her was within time or not?
9. So far as the knowledge of the petitioner/plaintiff with regard to the sale transaction in favour of respondent No.1 is concerned, this fact has been admitted by petitioner/plaintiff when she was examined as P.W.2 in her statement in the following words: -
10. Similarly Ghani Shah P.W.3 admitted in his statement that in his presence three ladies had affixed their thumb-impressions on the mutation through which the land in question was transferred in the name of respondent/defendant No.1. He also stated that he can identify the petitioner/plaintiff.
11. The above quoted evidence produced by the petitioner/plaintiff herself shows that she not only had the knowledge of the sale transaction, but was fully aware of the fact that respondent No.1 had constructed his house on the suit property more than 10 years back from the date of filing of the suit in hand. There is not a single word in the plaint which could explain that how and when did she come to know about the impugned sale mutation. The Courts below have rightly appreciated the evidence available on record.
I have not been able to find out any misreading/non-reading of evidence or illegality or any material irregularity or any jurisdictional - error or defect warranting interference in the impugned concurrent findings recorded by the Courts of competent jurisdiction. Resultantly the revision petition is dismissed in limine.
H.B.T./184/P?????????????????????????????????????????????????????????????????????????? Revision dismissed.