Find a Lawyer

Civil Petition No. 1551 of 1980, decided on 4th September,1985.

(Against the judgment and order, dated 22‑10‑1980 of the Lahore High Court, Lahore, in Civil Revision No. 273 of 1973).

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 115‑‑Concurrent finding of fact‑‑Unsettled in revision proceedings‑‑Plea raised that even "clumsy blunders" committed in recording finding of fact were immune from such interference‑‑Legal presumption raised from revenue record and admission of parties not having been given due effect by two Courts in recording judgment and decree, High Court in Civil revision, held, was competent to unsettle such a finding of fact.

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 115‑‑Leave to appeal, grant of‑‑Concurrent finding of fact unsettled in revision proceedings challenged‑‑Case, held, was not fit for grant of leave to appeal, for substantial justice had been done.

Aftab Iqbal Chaudhry, Advocate Supreme Court instructed by Hakim Muhammad Sardar Khan, Advocate‑on‑Record (absent) for Petitioner.

Fazal Hussain Chauhan, Advocate Supreme Court (absent) for Respondent.

Date of hearing: 4th September, 1985.

‑The petitioner, an unsuccessful defendant, seeks leave to appeal against the judgment of the Lahore High Court dated 22‑10‑1980 whereby a revision petition filed by the respondent, was allowed against a concurrent finding of fact recorded by the two Courts below and the decree in terms claimed by the respondent was granted to him.

On the death of Ahmad Ali, the husband of the petitioner, his entire landed property was mutated in the name of the petitioner on the assumption that he had no other heir who could possible inherit. The efforts of the respondent to have the matter re‑opened in the revenue hierarchy failed. He thereupon instituted a civil suit claiming himself to be a distant kindred of Ahmad Ali and as such entitled to 3/4 share out of his estate. The petitioner denied any such relationship. The exact relationship claimed by the respondent was that his father Ilam Din was the real brother of Gohra, the maternal grandfather of Ahmad Ali. His claim was that Allah Dad was the father of Ahmad Ali and Mst. Budhi was his mother. The trial Court held the relationship as not proved because the death certificate of Mst. Budhi was found not to relate to her. The appellate Court also found this relationship as not proved from the documentary evidence though it was found proved on record that Gohra was the grandfather of Ahmad Ali and Gohra and Ilam Din were brothers and Ilam Din was the father of Barkat. The area of doubt was that the petitioner claimed Mst. Hussaina to be the mother of Ahmad Ali while the plaintiff claimed Mst. Budhi to be his mother. The High Court took stock of the entire evidence on the record and found good material on the record in the form of pedigree table, coupled with the admission of the parties and the oral evidence establishing the relationship and, therefore, allowed the revision petition.

The grievance of the learned counsel for the petitioner is that a concurrent finding of fact should not have been unsettled in revision proceedings because even "clumsy blunders" committed in recording the finding of fact are immune from such interference. It is also contended that even on facts, the relationship alleged by the respondent was not proved.

We have examined the evidence on record and find that the presumption raised from the revenue record, namely, the pedigree table and the admissions of the parties was not given legal effect by the two Courts. Once it is established that Ilam Din was the father of Barkat and he was brother of Gohra and that Gohra and no other was the grandfather of Ahmad Ali, the relationship claimed by the respondent stood established. The legal presumptions arising from such a situation had to be given due effect in recording the judgment and the decree. That having not been done by the two Courts, the High Court in civil revision was competent to unsettle such a finding of fact. In any case, we find that it is not a fit case for grant of leave to appeal for substantial justice has been done. Leave to appeal is, therefore, refused.

M . I . Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.