' KARAM ELAHEE CHAUHAN, J.-This order will dispose of three civil petitions for Special Leave to Appeal bearing Nos. 115/80, 116/80 and 117/80.
2. These petitions have arisen from three suits being Suit No, 303/66 filed by Imam Bakhsh, Suit No, 302/66 filed by Haji Ahmad and Suit No, 301/66 filed by Kaura against the petitioners concerned as shown in the respective petitions. The plaintiffs averred that the defendants/petitioners claimed to be owners of the respective lots of land-(shown in detail in each suit)--on the basis of some alleged sale purported to have been made by them in favour of the father of the defendants. It was pleaded - that the plaintiffs never made any sale, and the corresponding mutation was all fictitious and bogus which was brought about by Muhammad Aslam (Inspector, Post Offices) (petitioner in C. P. 115/80) to whom the plaintiffs were obliged, as he had helped them earlier in getting this land from the Government under the West Pakistan Land Reforms Regulation No, 64/59 in year 1962 vide Mutation No, 75 dated 27-12-1962. It was pleaded that the aforesaid Inspector was an influential person in the Ilaqa, who asked the plaintiffs to give this land on lease to his father but fraudulently made it a transaction of sale which never took place and for which they had received no consideration at all. In order to prove the coercion of the Inspector, the plaintiffs stated, that they were brought in the Police Station and pressure was put on them etc. And their thumb impressions were obtained on blank papers. These allegations were controverted by the defendants and parties led evidence in support of their respective pleas. The learned Civil Judge by his judgment dated 11-7-1969 decreed the suits authorizing the defendants/petitioners to remove their tube-well from the land.
3. The defendants filed appeals but without any success as the same were dismissed by the learned District Judge on 31-3-1971.
4. The defendants then filed second appeals being R. S. A. Nos. 658/71, 723/71 and 724/71, which also failed and were dismissed by the High Court on 18-12-1979. The defendants have now come up to this Court for obtaining leave to appeal in these cases.
5. Apparently this case is concluded by concurrent findings of fact, viz. That the plaintiffs never sold the land; that they did not receive any consideration for the alleged scales; and that the receipts Exh. D/1 and mutation proceedings Exh. P./1 were all fictitious in that respect. The learned trial Court further held that receipts Exh. D/1 or certain alleged previous statements of plaintiffs Exh. D/3 were not even put to the plaintiffs. Facing this difficulty learned counsel for the petitioners firstly argued that the three suits in this case were not tried in accordance with any correct legal procedure. He submitted that evidence was recorded only in one suit, and copies of the statements of the witnesses were then placed in the other two suits after initials of the learned civil Judge. He submitted that each suit should have been separately tried; the evidence in each suit should have been independently recorded; the witnesses in each case should have been separately examined three times, and the consolidation of evidence in one file in the manner above explained was all illegal. The contention raised has no merit. The trial continued for a period of about three years, and during all that long period no objection of the present kind was raised before the learned civil Judge. This implies that the procedure aforesaid was adopted with the consent of the parties who were duly represented by their respective counsel. The point was not raised either in the memorandum of appeal or at the time of arguments before the learned Additional District Judge and in these circumstances the High Court refused to attach any importance to the same. We agree with the High Court that on the facts in the peculiar circumstances of this case, it was too late to raise this plea before the High Court and we should say now before this Court, when in the relevant Courts below the mode of recording evidence and maintaining the record was not objected to at any stage. The defendants cross-examined the witnesses of the plaintiffs; they produced their own witnesses in rebuttal and also led documentary evidence in support of their case and at no stage expressed any grievance of the technical kind which is now being pressed before us. The contention raised in the circumstances cannot be accepted.
6. Coming to the merits of the case, learned counsel submitted that his clients had produced receipts Exh. D/I in each case showing receipt of Rs, 6,000 by each plaintiff; D/2 application of the plaintiffs dated 19-2-1963, seeking permission to sell the land on which they were told that there was no law or provision requiring permission for private sales; Exh. D/3 the statements of the plaintiffs before the Tehsildar and Exh. D/4 the mutation sanctioned by him. He submitted that the Courts below acted with material illegality in rejecting this documentary evidence.
7. Taking up the receipt Exh. D/1 its marginal witness Ghulam Muhammad (P. W. 4) did not support.
It inasmuch as he deposed that no Money was paid in his presence. On the other hand the defendants produced Nurul Hassan (D. W. 2) who supported the payment of consideration. The Courts below preferred the statement of Ghulam Muhammad (P. W. 4) and also observed that the apparent tenor of the receipt and the distance in-between its lines and thumb impressions, showed that its contents were filled up later. This is essentially a finding of fact based o proper appreciation of evidence and cannot be taken exception to.
8. As regards the mutation proceedings and the alleged statements of the plaintiffs before the Tehsildar, he i.e, the Tehsildar deposed that the plaintiffs were identified before him by Khurshid Ali, Lambardar of a different village. However, the said Lambardar appeared as (D. W. 7) (produced by the defendants themselves)-and denied to have identified the plaintiffs. The Tehsildar himself did not know the vendors and the matter thus depended upon the identification of Khurshid All who did not support the case of the defendants. This demolished the genuineness of the sale by and other proceedings of the mutation. The Courts below further noticed, that before the Tehsildar, plaintiff Imam Bakish is alleged to have signed whereas on receipt Exh. D/1 he is said to have put his thumb-impression. Learned counsel while accepting these features of the case submitted that these were not enough to hold that no sale bad at all taken place because the proceedings before the Tehsildar were all genuine proceedings and there was no justification to discard the same or the attending receipts. The matter is purely of appreciation of evidence and so long as there existed a material on the record on the basis whereof the view consequently taken by the Courts below could be taken their findings cannot be taken exception to before us especially when they suffer from no misreading of the record, and the mere contention that another view could also probably be taken is no ground to upset these findings.
9. Learned counsel then argued that the petitioners had installed a tube-well on the suit land and had obtained and retained its possession for about three years, which factor went a long way to show that this change of possession could not have taken place except for a transaction of sale as alleged by his clients and the plea to the contrary by the plaintiffs was not correct. He 'further submitted that in view of the above-mentioned fact the plaintiffs respondents were estopped to challenge the title of the petitioners. The High Court held that the plea of estoppel was not argued before the Courts below and being a plea of fact the same could not be taken note of by it in the second appeal. We feel nothing wrong with the view 6r the High Court on the subject aforesaid.
10. The result is that these are not fit cases for grant of leave to appeal. The petitions have no merit and are dismissed.