Javed Iqbal, J.--This appeal is directed against the judgment dated 24.10.2001 whereby the revision petition preferred on behalf of respondents has been accepted.
2. The facts of the case have been mentioned elaborately in the judgment impugned, hence reproduction whereof would be of no use.
3. Mr. Gulzarin Kiani, learned ASC entered appearance on behalf of appellant and contended with vehemence that the relinquishment deed whereby a chunk of land was surrendered is not binding upon the appellant for the simple reason that at the time of execution of relinquishment deed admittedly the appellant was a minor. It is also contended that his brother being defecto guardian could not have executed any relinquishment deed on behalf of the appellant being minor and therefore the terms and conditions enumerated in the relinquishment deed could not be made applicable to the appellant. It is also pointed out that the learned High Court in exercise of revisional jurisdiction is not competent to thrash out the entire evidence as it was not a case of non-reading and misreading of evidence but on the contrary concurrent findings of facts have been recorded by the learned trial and appellate Courts and, more-so if the revisional jurisdiction was to be exercised it was obligatory for the learned single Judge in chambers to have assigned cogent reasoning for reversing the well based conclusion of learned appellate Court but no such reasoning could be given and on this score alone the judgment impugned is liable to be set aside.
It is also contended that the relinquishment deed which was itself ab initio void and illegal could not have been ratified subsequently. On the question of minority and relinquishment deed and its subsequent ratification following authorities have been referred: Ahmed Khan u. Rasul Shah (PLD 1975 SC 311), Izzat v. Allah Ditta (PLD 1981 SC 165), Hanifa Begum v.
Muhammad Afzal Khan (1981 CLC 1156), Ziariat Gul v. Mian Khan (PLD 1950 Peshawar 69), Fateh Din v. Gurmukh Singh (AIR 1929 Lah. 810), Mt. Anto v. Mt. Reoti Kuar (AIR 1936 All. 837), Md.' Zafir v.
Amiruddin (AIR 1963 Pat. 108), Kase Molla, v. Fajel Shek (PLD 1952 Decca 347), Kunji Amma v. D.
Antherjanom (AIR 1954 Tra-co 371).
4. Sheikh Zamir. Hussain, learned ASC for Respondents No, 1-6 and 15 controverted the view point as canvassed at bar by Mr. Gulzarin Kiani, learned ASC for the appellant and contended that learned Courts below have not appreciated the evidence in its true perspective and being a case of misreading and non-reading of evidence the learned High Court was competent while exercising its powers under Section 115 CPC to reappraise the evidence. It is also pointed out that the powers as conferred upon learned High Court under Section 115 CPC are not limited and the concurrent findings could be reversed in case the same are based on non-reading or misreading of evidence.
It is pointed out that a suit was filed by Mst. Anar Bibi, the sister of the appellant (respondent) which was dismissed and appeal filed also met the same fate and by that time the appellant had attained majority but the findings recorded adversely against him in the suit preferred on behalf of Mst. Anar Bibi (respondent) could not be challenged and no objection petition whatsoever was filed pursuant to the provisions as contained in Order 41 CPC. It is also pointed out that on the basis of this relinquishment deed 20 kanals of land was given to Nabi Bukhsh and 1/4 share was obtained by the appellant from it and thus he was benefited from the relinquishment deed and now at this belated stage the settled transaction cannot be reopened. It is also pointed out that the appellant went into a deep slumber for more than a decade and thereafter filed a suit. Sheikh Zamir Hussain, learned ASC has also relied upon the following authorities to substantiate his contentions: Muzaffar Khan v. Sanchi Khan (2007 SCM R 181), Tulley Khan v. Ahmed Hassan Khan (1981 SCM R 1075), Midna Pore Zamindary Co, Ltd. v. Abdul Zalil (AIR 1933 Cal. 627).
5. Mr. Gulzarin Kiani, learned ASC while exercising his right to reply contended that the appellant was not bound to file an objection petition because no adverse judgment was delivered against him but his stance appears to be in violation of the provisions as contained in Section 41 CPC for the simple reason that in case of adverse findings the affectee must file objection petition to get his grievance redressed.
6. We have carefully examined the respective contentions as agitated on behalf of the appellant, scanned the entire evidence with the eminent assistance of learned counsel and perused the judgment of learned trial Court as well as the judgment impugned carefully. We have not been persuaded to agree with Mr. Gulzarin Kiani, learned ASC that the jurisdiction as conferred upon learned High Court under Section 115 CPC is limited for the simple reason that the concurrent findings of facts recorded by the Courts below cannot be treated as sacrosanct and can be interfered with in case of non-reading and misreading of evidence. It is well settled by now that "the High Courts can interfere when finding is based on insufficient evidence, misreading of evidence, non consideration of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view on evidence has been taken."
7. We are also not impressed by the prime contention of Mr. Gulzarin Kiani, learned ASC that while reversing the judgment of appellate Court the learned High Court has not given cogent and concrete reasoning. An in depth scrutiny of the judgment impugned would reveal that appellate Court had examined the entire evidence with diligent application of mind and the conclusion arrived at is strictly in accordance with evidence which has come on record and settled norms of justice. The learned High Court has given solid reasoning for setting aside the judgment of appellate Court.
8. There is no denying the fact that appellant has miserably failed to point out that as to how the ownership of the land in question was devolved upon him. We have taken into consideration Ex.P/1 whereby the land in question was purchased in the year 1945 when the appellant was not more than 8 years. It is worth mentioning here at this juncture that the appellant has admitted that the land in question was purchased by his maternal uncle namely Gehna for two brothers (Abdul Sattar and Saleem) and their mother. The appellant has also admitted that the joint Khavet was in the name of legal heirs of Nabi Baksh. We found substance in the contention of Sheikh Zamir Hussain, learned ASC on behalf of respondents that a suit was filed by Mst. Anar Bibi the sister of appellant (respondent) which was dismissed and the appeal filed also met the same fate and by that time the appellant had attained majority but the findings recorded adversely against him in the suit preferred on behalf of Mst. Anar Bibi (respondent) could not be challenged and no objection petition whatsoever was filed pursuant to the provisions as enumerated in Order 41 CPC.
It must be kept in view that on the basis of relinquishment deed 20 kanals of land was given to Nabi Baksh and 1/4 share was obtained by appellant from it and thus he obtained benefit from the relinquishment deed and now it is too late in the day to challenge such a transaction which cannot be reopened. It further transpired from the scrutiny of the record that the appellant went in a deep slumber and filed a suit after about three decades. It is to be noted that up to some extent the suit filed by Mst. Anar Bibi has adversely affected the appellant and objection petition should have been filed by him after attaining majority. As mentioned hereinabove admittedly on the basis of relinquishment deed 20 kanals of land was given to Nabi Baksh 1/4 and share was obtained by appellant from the same chunk of land and the validity of deed of relinquishment was never challenged. Had this benefit been refused by the appellant the position would have been different.
By taking 1/4 share the appellant has impliedly accepted the relinquishment deed. It is to be noted that in the suit as mentioned herein above their main reliance was on the relinquishment deed which was their main defence and therefore, the prime contention of Mr. Gulzarin Kiani, learned ASC concerning minority of appellant seems to be devoid of merit. The Learned single Judge in chambers has examined all the contentions as agitated before this Court in a comprehensive manner in the judgment impugned, relevant portion whereof is reproduced herein below for ready reference: "5. Ex D.3/1 is the plaint in the suit filed by Petitioner No, 1 and her daughters against Petitioner No, 3 and Respondents No, 1 & She complained that her share in the estate of Nabi Bakhsh comes to 27 kanals 6 marlas. Ex D.3/2 is the statement of Respondent No,
2. In the said case wherein he stated that out of the suit land he and his brother had transferred 1/4 share in favour of Nabi Bakhsh and 1/4 share in favour of Petitioner No, The suit was dismissed by the learned trial Court on 29.3.1977 vide judgment Ex. D.3/6 holding that Nabi Bakhsh was owner to the extent of 1/4 share in the suit land and this was his estate that was to be distributed amongst his heirs. This 1/4 share was obtained from Respondents No, 1 & 2. The appeal was dismissed on 2.3.1981 vide judgment Ex.D.3/7.
Mutation No, 2960 is Ex. D.3/8 whereby on the death of said Nabi Bakhsh the said 1/4 share devolved upon his heirs including Respondent, No,
1. Coming to the impugned judgments and decrees I find no reference at all to the said admitted fact that the Petitioner No, 1 had earlier filed a suit which was dismissed and the appeal was also dismissed and that the suit was filed against, inter alia, Respondent No,
1. The judgment and the copies of the proceedings were adduced in evidence before Respondent No, 1 entered in the witness box. He has not come out with any explanation or even a denial that he was not aware of the contents of the said proceedings. The learned Courts below have also completely ignored the position emerging from the evidence on record that it stood admitted on record that the land was in fact purchased by Nabi Baksh in the name of his sons. Respondent No, 1 did not even make an effort to prove that he had purchased the land. The plea taken by him in response to cross-examination that his maternal uncle Gehna had purchased the land for him was not put to any of the witnesses of the petitioners, so-much so that his brother Respondent No, 2 who, as it is clear on the face of the record, is supporting Respondent No, 1, denied that the land was purchased by Gehna. In the said background it was all means a settlement of the property by the late owner i,e, Nabi Bakhsh admittedly, the father."
9. As mentioned herein above the appellant went into a deep slumber and filed the suit after about three decades which speaks a volume about the conduct of appellant. In view of the chequered history of the case the authorities relied upon by Mr. Gulzarin Kiani, learned ASC hardly render any assistance to the claim of appellant which could not be substantiated. The appeal being devoid of merit is dismissed.