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Civil Revision No. 498-D of 1981 decided on 14th February; 1984.

---S. 115---Specific Relief Act (I of 1877), S.42--Revision--Suit for declaration--Petitioner contending that respondent made a gift of land in his favour and that respondent's Special attorney also consented to that--Documents on record neither establishing that gift of land in question was in fact made by respondent in favour of petitioner nor these documents creating estoppel against respondent nor establishing that respondent would have constituted alleged person as his attorney--Documents on other hand showing that respondent was neither having cordial relations with his near relatives nor there existed ties of love and affection that he would make a gift of his property to petitioner who was respondent's insane brother--Statement made by respondent in examination-in-chief clearly bearing out said inference--Appellate Court below comparing disputed signatures and coming to conclusion that disputed signatures were forged-- Finding;3 arrived at by Appellate Court below on basis of oral and documentary evidence more than sufficient to decide issue in favour of respondent- Appellate Court giving reasons in his judgment for not relying on evidence produced by petitioner--No misreading of evidence or exclusion from consideration material piece of evidence alleged against appellate Court below--Contention of petitioner that respondent made gift of land in question in his favour repelled in circumstances and his revision against judgment and decree of appellate Court below dismissed.

-----S. 115--Revisional jurisdiction--Finding of fact--Finding of fact based on evidence on record and flowing from facts proved on record, held, could not be interfered within revisional jurisdiction.

----S. 45--Civil Procedure Code (V of 1908) S. 115 and 0. XLI, r.7 --Expert opinion--Opinion of handwriting expert--One of modes of proving disputed handwriting or signatures Parties having chosen other mode of proving disputed signatures-could not seek indulgence of Court at very end of trial for allowing to produce handwriting expert in additional evidence.

------S. 115 and 0. XLI, r. 7--Additional evidence--Application seeking permission to produce additional evidence made when suit was ready for arguments--No justifiable exception, held, could be raised to refusal made by Court in this regard.

M. Pervaiz Akhtar and Muhammad Mahmood for Petitioner.

Ch. Risyast Ali for Respondent.

Dates of hearing: 28th, 29th January and 1st February, 1984.

This Civil Revision under section 115, C.P.C. is directed against the judgment and decree, dated 13-4-1981 of the learned District Judge, Sargodha whereby accepting the appeal filed by the respondent decree, dated 19-11-1979 of the trial Court was set aside and the suit of the respondent-plaintiff was decreed. '

2. Muhammad Janan Khan respondent filed the suit for declaration that the decree, dated 27-2-1975 was obtained by practising fraud and through impersonation and as such was ineffective against his ownership rights in the land in question and that the mutation No.86 sanctioned in respect of the land on the basis of the said decree was equally illegal and ineffective. A perpetual injunction restraining the petitioner from interfering with the possession was also prayed for. The petitioner in the written statement controverted the assertions of the respondent contained in the plaint and submitted that the gift was valid and effective as against the respondent having been made by him voluntarily and that the decree impugned in the suit was in fact passed on .the basis of the statement made before the Court by the Special Attorney and real brother, namely, Muhammad Ahsan Khan, of the respondent. The case (if the petitioner was that the suit for declaration and consequential relief' to which the impugned decree was passed was originally filed 24-1-1975 in the Court of Senior Civil Judge, Lahore where Muhammad Janan Khan respondent not only appeared in person but also filed written statement admitting the gift set up in the plaint through an Advocate whose power-of-Attorney is also available on the record. It was further asserted that the plaint was returned by Mr. Faiz Talib, Civil Judge, Lahore: for presentation before the Court of competent jurisdiction and that the plaint so returned was then filed on 11-2-1975 in the Court of Senior Civil Judge, Sargodha where Muhammad Ehsan Khan real brother and Special Attorney of the respondent as well as his counsel also appeared. It was averred that statement of the Special attorney was recorded and in the said statement the said Attorney again admitted the factum of gift and in terms of the admission the consent decree was passed by the Senior Civil Judge, Sargodha vide judgment and decree, dated 27-2-1975. The petitioner with these assertions sought dismissal of the suit filed by Janan Khan respondent. The learned trial Court framed necessary issues arising out of the pleadings including issue No.4 which reads as under:-

Whether there is no valid gift of disputed land and the plaintiff continue in possession of the disputed land as owner

The suit after evidence of the parties was, however dismissed. The plaintiff-respondent thereafter filed an appeal and the same was accepted by the learned District Judge vide judgment and decree dated 13-4-1981.

3. Learned counsel for the petitioner/defendant in support of the revision petition argued that the learned first appellate Court has erred in law in reversing the findings of the learned trial Court on issue No.3 by ignoring material evidence and by not giving proper weigh, to the judicial proceedings held at Lahore and at Sargodha and also by not giving proper importance to the presumption of truth attaching to the judicial proceedings. It was further submitted that the inferences legitimately drawn against the respondent from documents Exh. D.3 summons, Exh.D.3, written statement, Exh D.2 reply to application, Exh.D.4 Vakalatnama and Exh.P.l Power-of-Attorney were completely ignored. It was further argued that the conduct of the respondent proved through Exhs.D.7 to D.9 was also not considered. According to the learned counsel these documents manifested that the respondent had been backing out and denying the transactions entered into by him, previously too. Finally, it was argued that the application for permission to produce Handwriting Expert in additional evidence was wrongly refused by the learned trial Court and in case the findings recorded by the learned trial Court were to be reversed. The petitioner the permission to produce the Handwriting learned counsel for parties through the ocular as well as the documentary assistance. The learned Appellate Court in its given reasons for not relying on the documentary evidence produced by the petitioner. Neither evidence has been pointed out nor learned refer to any material piece of evidence which from consideration by the learned Appellate learned counsel that proper weight has not been given of truth attaching under judicial me Special Attorney of respondent. This special power-of-attorney was commented upon by learned appellate Court in detail in paras. 9, 10, 11 and 12 of the judgment. The reasons given to discard this power-of-attorney arc weighty and well founded on record. Moreover, the finding of fact recorded by the learned Appellate Court is that the comparison of the signatures appearing on the disputed documents with the signatures on the admitted documents clearly shows that the disputed signatures were forged. The oral evidence produced by the respondent was also dealt with in detail and the criticism offered is again well-reasoned and well based., I have also gone through the documents Exhs.D.7, D.8 and D.9 and I am of the considered view that these documents neither establish that the gift of land in question was in fact made by the respondent in favour of the petitioner nor these documents create estoppel nor go to establish that the respondent would have constituted Muhammad Ehsan Khan as his attorney. These documents on the other hand show that the respondent was neither having cordial relationship with his near relatives nor there existed ties of love and affection that he would care to give his property in gift to his insane brother. The Settlement made by the respondent in examination-in-chief as well as in cross-examination clearly bear out the above noted inference. Be that as it may, the findings of fact which are based on evidence on record and flow from the facts proved on record cannot be interfered within revisional jurisdiction. Reference may be made to Kanwal Nain and 3 others v. Fateh Khan and others P L D 1983 S C 53. The plea that the Handwriting Expert should have been allowed to be produced in additional evidence has also no merit as firstly the application ,seeking permission to produce additional evidence was made when the suit was ready for arguments. Moreover, opinion of Handwriting Expert is one of the modes of proving disputed handwriting or signatures. The parties, having chosen the other mode of proving the disputed signatures cannot seek the indulgence of the Court at the very end of the trial. Thus, no justifiable exception can be raised to the refusal made by the learned Courts below in this regard. In any case the learned appellate Court has itself compared the disputed signatures and came to the conclusions that the disputed signatures were forged. This finding coupled with the other findings arrived at on the basis of the oral and documentary evidence are more than sufficient to decide the issue in favour of the respondent. In view of above discussion, I have no hesitation in repelling the contentions of the learned counsel for the petitioner. Before parting with this judgment, mention may be made of another plea advanced by the learned counsel for the petitioner. It was contended that in the suit filed by Janan Khan respondent at best the decree dated 27-2-1975 could be declared illegal and inoperative and that the suit itself in which the said decree was passed could not be dismissed. This argument was, however, not pressed when the learned counsel realised after reading the operative part of the judgment dated 13-4-1981 of the learned District Judge, Sargodha that nothing had been mentioned therein about the said suit.

5. For the reasons given above, this petition fails and the same is dismissed with costs.

M. Y. H.

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