CH. IJAZ AHMED, Appellants/petitioners sought leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 18-7-2001 passed in Civil Revision No,292 of 1984 wherein the learned High Court had reversed the concurrent findings of the Courts below through C.P. No,2714 of 2001. Leave was granted by this Court vide order, dated 14-11-2001 in the following term:-- ' "We have heard Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court for'the petitioners and have perused the material available on record . The learned counsel for the petitioners vehemently argued that the learned Judge in Chambers of the Lahore High Court was not competent to set aside the findings of facts recorded by the learned trial Court and upheld by the learned Appellate Court while exercising the revisional jurisdiction under section 115, C.P.C. That the impugned judgment is violative of law laid down by this Court that the power of High Court to interfere under section 115, C.P.C. Is limited to correct some legal errors and not to substitute its own findings, even if the findings of learned lower Courts are erroneous or a different view is possible. In this regard the learned counsel referred to Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139; Muhammad Bux v. Muhammad Ali 1984 SCMR 504 and Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others 2000 SCMR 346.
' The learned counsel for the petitioners further argued that the learned lower Courts were right in holding that ingredients of gift were not fulfilled as delivery of possession was never made to the donee and as such the gift was void under Muhammadan Law and that the impugned judgment is the result of misreading and non-reading of material evidence.
' Leave to appeal is granted to consider the contentions raised by the learned counsel for the petitioners.
' No ground for interim relief has been made out. C.M.A. No,3062 of 2001 is dismissed."
2. Necessary facts were noted by this Court vide order, dated 14-11-2001 at the time of granting leave to appeal. The same are reproduced hereunder:-- "Brief facts are that one Moulia son of Fazal was owner in .Possession of land forming subject- matter of litigation and he allegedly transferred land measuring 49 Kanals, 6 Marlas by way of gift in favor of respondent No,
1. This was done through oral gifts and was affirmed by Mutation No,2118 attested on 23-4-1971 and Mutation No,2318 attested on 31-8-1974. Said Moulia had two daughters namely Karam Noor and Bhag Bhari and was having no male issue, therefore, even residuaries were entitled to inherit from him. Admittedly those residuaries were Khuda Bakhsh, Aurangzeb, Gul Baig and Ghulam Muhammad sons of Talib Hussain. This is admitted position that these residuaries were related to Moulia in equal degree and were entitled to the residue in equal share but for gift deed and accordingly two of those residuaries namely Aurangzeb and Khuda Bakhsh and one daughter namely Karam Noor filed the instant suit for possession of land on or about 20-1- 1976 against respondent No,1, the alleged donee and Mst. Bhag Bhari daughter of Moulia and the remaining petitioners. The suit was only contested by respondents Nos.1 and 2. Gul Baig and Ghulam Muhammad did not contest the suit and submitted their consenting written statement on 26-6-1978 stating therein that they have no objection if the decree is passed in favor of the petitioners/plaintiffs as prayed for. On the basis of these pleadings, the learned trial Court framed as many as 10 issues and parties led their evidence on these issues and after, going through the evidence and hearing the parties. The learned Civil Judge, vide judgment and decree, dated 14-7- 1980, decided Issues Nos.1, 2, 3, 6 and 9 in favor of the plaintiffs, while Issues Nos.4, 5 and 7 were decided against them. On Issue No,8 it was held that the plaintiffs were entitled to the decree of 2/3 share in the suit property on the basis of findings on these issues.
' Feeling aggrieved, only respondent No,1 Muhammad Jaffar filed appeal before the learned District Judge, Jhelum wherein the plaintiffs and other defendants were impleaded as respondents. The appeal was dismissed vide judgment dated 17-5-1984 and the judgment and decree of the trial Court was upheld.
' Respondent No,1 filed Civil Revision No,292 of 1984 before the Lahore High Court, which was accepted and the case was remanded to the learned trial Court for decision afresh, vide judgment, dated 18-5-1998. The petitioners filed Civil Petition for Leave to Appeal No,873 of 1998 before this Court, which was converted into Civil. Appeal No,1829 of 1998, and vide judgment, dated 29-9-2000, by allowing the same the judgment of the High Court dated 18-5-1998 was set aside and the case was remanded to the High Court for decision afresh on merits in accordance with law.
3. The learned counsel for the appellants submits that learned High Court erred in law to set aside the concurrent conclusions arrived at by the Courts below while exercising power under section 115, C.P.C. He further maintains that learned High Court had also erred in law to reverse the findings of the Courts below while substituting its own finding in place of the findings of the Courts below while exercising power under section 115, C.P.C. He further maintains that the trial Court and the first Appellate Court had decided the case after proper appreciation of evidence in its true perspective whereas the learned High Court had reversed the same in spite of the fact that the judgments of the Courts below are not based on perversity or in violation of any law laid down by this Court or any provision of law or by misreading and non-reading of the record
4. The learned counsel for the respondents submits that matter was decided in the earlier round of litigation by this Court and the appellants had given certificate on 24-9-2001 to the effect that aforesaid petition was the first petition on the subject-matter before this Honourable Court and this fact bring the case in the area that the appellants had not approached this Court with clean hands. The appeal is liable to be dismissed on this short ground. He further maintains that appellants had not attached all the documents with the petition as well as with the present appeal as the appellants did not mala fidely attack the judgment of the learned High Court dated 18-5- 1998 passed in earlier round of litigation and also not mala fidely attached the order of this Court dated 20th September, 2000 passed in Civil Appeal No,1829 of 1998 wherein the appeal of the appellants was accepted and the case was remanded to the High Court to decide the case on merits and the remand order of the High Court was set aside. He further urges that in the earlier round of litigation finding on merits in the judgment of the High Court dated 18-5-1998 was not set aside and in fact appeal of the appellants was accepted wherein the learned High Court had remanded the case to the trial Court to decide the case afresh. He further maintains that learned High Court had reversed the findings of the Courts below with cogent reasons after reappraisal of evidence in the interest of justice and fairplay. The learned High Court has discharged its statutory duty to reverse the finding as the learned High Court has supervisory jurisdiction to correct the error committed by the Courts below. In support of his contention, he relied upon Muhammad Yousif's case 1992 SCMR 2334. He further submits that learned High Court had ample power to set aside the concurrent findings of fact recorded by the Courts below while exercising power under section 115 of C.P.C. Wherein the Courts below had misread or non-read the record or rendered judgment based on perversity or material irregularity. In support of his contention, he relied upon Sarfraz Khan's case 1986 SCMR 1950. The learned High Court has reversed the findings of the Courts below after judicial application of mind and found that gift was executed by Mouli who was owner in possession of the land in question measuring 49 Kanals, 6 Marlas by way of gift in favor of respondent No,1 who was his son-in-law through Mutation No,2118 dated 22-6-1971 and Mutation No,2318 dated 31-8-1974. The mutations were sanctioned in public assembly, therefore, learned High Court was justified to give due weight to the documentary evidence over the oral evidence in view of the mandatory provisions of Qanun-e-Shahadat Order, 1984. The original owner was well within his right to make gift of share of his undivided property but this fact was not considered by the Courts below which was duly rectified by the learned High Court. In support of his contention, he relied upon Shahab Dad's case 1972 SCMR 295 and Sanaullah Khan's case 1968 SCMR 311(2). He further urges that suit was filed by the appellants after six years, eight and half months from the Mutation No,218, dated 22-6-1971 and similarly suit was filed after three years and five months, four days from the second Mutation No,2318 dated 31-8-1974 as the suit was filed by the appellants on 5-2-1978 which was liable to be dismissed as time-barred. He further urges that mutations were recorded in the Revenue Record; therefore, such entries carried the statutory presumption of truth.
In support of his contention, he relied upon the following judgments:--
(i) Hakim Khan's case 1979 SCMR 625; (ii) Haji Ghulam Rasool Khokhar's case 1990 SCMR 725; (iii)
Ghulam Hussain's case PLD 1984 Pesh. 278; (iv) Sibtullah Khan's case PLD 1993 Pesh. 94 and (v)
Bhagwan Das's case AIR 1929 Lah. 93.
5. The learned High Court had reversed the finding of the Courts below to give due weight to the documentary evidence over the oral evidence. The judgment of the learned High Court is in accordance with the dictum laid down by this Court. In support of his contention, he relied upon Islamuddin's case 1988 SCMR 1989. He further submits that both the Courts below i,e, the trial Court and the First Appellate Court erred in law to give findings against the respondents that the donor had not given possession of the property in question to the donee. Possession in such type of cases is not necessary ingredient. In support of his contention, he relied upon Munawar Hussain Shah's case PLD 1978 SC (AJ&K)
37. He further submits that appellants had filed simiplicitor suit for possession without seeking declaration, therefore, suit of the respondents was not competent and this fact was not considered by any of the Courts below. In support of his contention, he relied upon Muhammad Aslam's cage PLD 2001 SC 213. Respondent is well within his right to raise this plea before this Court. In support of his contention, he relied upon Mst. Bibi Jan's case PLD 1975 SC 295.
He further maintains that appellants had failed to cross-examine the witnesses of the respondents; therefore, learned High Court was justified to rely said portion as admitted by the appellants. In support of his contention, he relied upon Syed Iqbal Hussain's case PLD 1967 Lah.
1138. He further maintains that appellants had basically challenged the aforesaid mutations in a suit for possession and their suit was not maintainable in view of alternative remedy available to the appellants under the provisions of Punjab Land Revenue Act, 1967. In support of his contention, he relied upon Muhammad Faraz's case 1984 SCMR 724. Mutations of gift were sanctioned in a public assembly, therefore, such type of mutations and entries in the contents of mutations having great evidentiary value and this fact was not considered by the Courts below i,e, trial Court and the first Appellate Court which was duly considered by the learned High Court and decided the revision petition in accordance with the dictum laid down by this Court in various pronouncements. In support of his contention, he relied upon Abdul Ahad's case PLD 1979 SC 890. The learned High Court has rightly exercised jurisdiction under section 115 of C.P.C. Which is in consonance with the law laid down by this Court to disturb the concurrent findings of the Courts below. In support of his contention, he relied upon Muhammad Bakhsh's case 1984 SCMR 504, Muhammad Siddique's case 2000 SCMR 533 and Muhammad Akhtar's case 2001 SCMR 1700.
6. We have considered the contentions of learned counsel for the parties and have perused the record. It is an admitted fact that respondents had not taken a preliminary objection qua the non- maintainability of the suit for possession of the appellants without claiming any declaratory relief in the written statement and also did not take these objections in the memorandum of appeal before the first appellate Court and before the High Court in the memorandum of revision petition. It is a settled law that parties are bound by their pleadings as the law laid down by this Court in Mst.
Murad Begum's case PLD 1974 SC 32. Similarly, the objection of the maintainability ofl the suit in presence of alternative remedy under the provisions of Punjab Land Revenue Act, 1967 was not raised before any of the Courts below. It is pertinent to mention here that all the objections and the grounds raised by the learned counsel for the respondents were not raised before the Courts below as is evident from the impugned judgment of the Lahore High Court and the judgments of the Courts below. It is a settled D law that the pleas or grounds which were not pressed during the arguments before the High Court, or not mentioned in the pleadings of the parties, this Court normally declines to interfere at the stage of arguments in the appeal as law laid down by this Court in Bashir Ahmad's case 1988 SCMR 1232. Reference can be made to the following judgments:- -
(i) John E. Brown Lee's case AIR 1940 PC 219 and (ii) Ashfaqur-Rehman's case PLD 1971 SC 766.
7. It is a settled law that document must be read as a whole as law laid down by this Court in Mian Nawaz Sharif's case PLD 1993 SC 473. In case the contents of plaint be read as a whole, then the objection raised by the learned counsel for the respondents has no force. It is also a settled law that presumption of correctness is attached to the entries in the Revenue Record unless the same are rebutted and proved to have been erroneously made without any legal and solid foundation.
The trial Court and the First Appellate Court have given concurrent findings of the fact against the petitioners after proper appreciation of evidence on record and came to the conclusion that donor had not gifted the land in question in the name of done and all the three ingredients of complete gift (offer, acceptance and possession) were not fulfilled coupled with the fact that the statement of respondent's witnesses were not in line with each other and contradicting themselves or each other on material points and could not prove that gift was executed by the donor in favor of the done. It is pertinent to mention here that done did not appear before the trial Court. The learned.
High Court had reversed the concurrent conclusions arrived at by the Courts below merely on the ground that according to the High Court, the conclusions arrived at by the Courts below were not correct and substituted its own conclusion. The Privy Council while interpreting section 115 of C.P.C.
Has laid down principle to interfere in the concurrent conclusions arrived at by the Courts below by the High Court under section 115 of C.P.C. In N.S. Venkatagiri Ayyanger's case PLD 1949 PC 26. The relevant observation is as follows:-- "This section empowers the High Court to satisfy itself upon three matters; (i) that the order of the subordinate Court is within its jurisdiction; (ii) that the case is one in which the Court ought to exercise jurisdiction; and (iii) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of Procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
8. The learned High Court had exercised jurisdiction under section 115 of C.P.C. In violation of law laid down by this Court in the following judgments:--
(i) Abdul Mateen's case 2006 SCMR 50; (ii) Muhammad Feroze's case 2006 SCMR 1304 and (iii)
Atiq-ur-Rehman's case PLD 2006 SC 309.
9. It is a settled law that entries in the Revenue Record not having the foundation of title but only evidence thereof, interpretation of entries made therein remains a question of fact not liable to be reopened in revision petition as a concurrent findings of fact reached by the two Courts below on the basis of the evidence led in the suit are sancrosanct for the purposes of revision petition before the learned High Court on the ground that there is no jurisdictional error of the Courts pointed out as having been committed in reaching those findings. It is a settled law qua the transaction of sale or gift, that it is the duty of the beneficiary and a heavy onus lay on the beneficiary to prove by convincing evidence satisfying the judicial conscience of the Court that the transaction shown to be a gift was executed by the donor in favor of the done. As mentioned above, both the Courts below have given concurrent conclusions against the respondents which were reversed by the learned High Court without any cogent reasons. The learned High Court was not justified to interfere in such cases as the law laid down by this Court in Haji Elahi Bakhsh's case PLD 1985 SC 41.
The learned High Court was not justified to give due weight to the mutations in question in view of the evidence produced by the parties before the trial Court and the two Courts below i,e, the trial Court and the first Appellate Court had given concurrent conclusions against the respondent with regard to the mutations which were in consonance with the law laid down by this Court in Haji Ghulam Rasool's case PLD 1971 SC 376. The aforesaid proposition of law is also supported by the law laid down by the Privy Council in Nagashar Bakhs Singh's case AIR 1920 PC 46. It is a settled proposition of law that mere mutation does not confer any right as observed by this Court in Mst.
Noor Fatima's case 1990 SCMR 629. It is a settled law that the learned High Court while sitting in provisional jurisdiction is not supposed to interfere in the concurrent findings of the Courts below unless it is established that the judgments of the Courts below were without jurisdiction or the two Courts below committed illegality or with material irregularity resulting into miscarriage of justice as law laid down by this Court in Mst. Kalsoom Bibi's case 2005 SCMR 135.
10. In view of what has been discussed above, the appeal is accepted and the judgment of the learned High Court is set aside whereas judgments of the two Courts below are restored with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.