' SYED ZAWWAR HUSSAIN JAFFERY, J.--- The petitioner seeks leave to appeal against the impugned judgment, dated 9-4-2007, passed by High Court of Sindh, Karachi in IInd Appeal No,14 of 2005 whereby trial Court decreed the suit in favour of the petitioner and on appeal, the judgment and decree passed by learned VI Senior Civil Judge, Karachi Central delivered in consolidated Suits Nos.132 of 2003, 134 of 2003 and 115 of 2003 regarding properties of the deceased was affirmed, thereby concurrent findings were set aside and IInd appeal was allowed. The impugned judgment has been assailed by the petitioner through instant petition.
2. Brief facts of the case are that the predecessor-in-interest of the parties late Syed Tazeem Ali Naqvi, was the exclusive owner of immovable property in two independent portion of Plot No,B- 198/J measuring 400 sq. Yds., situated in North Nazimabad, Karachi. The deceased father of the parties herein had three daughters and two sons. The deceased was an Executive Officer in the National Bank of Pakistan. After his retirement, he distributed cash received from the bank including the house-hold articles during his life time in 1978 and orally gifted the two portions of the house to his sons followed by a deed of declaration of gift on 21-2-1980 by completing all the essential requirements including acceptance and delivery of possession and the title documents. Late Syed Tazeem Ali Naqvi died on 28-7-1990. The legal heirs of the deceased, namely, Syed Rafiul Qadre Naqvi and Syed Azeemul Qadre Naqvi continued enjoying exclusive ownership of their respective portions to the exclusion of the other legal heirs, for all interest and purpose and paid all utility bills and other charges. Later on, Syed Azeemul Qadre Naqvi died and his legal heirs, namely, Dr. Zeba Azeem, Miss Saba Azeem and Miss Fatima Azeem in July, 1995, after lapse of 15 years, from declaration of gift and 5 years after the demise of the donor (Syed Tazeem Ali Naqvi), that only two sisters (Syeda Safia Sultana and Syeda Azra Sultana) claimed their right of share in the said immovable property while third sister Syeda Razia Yousaf admitted the gift deed and did not claim any right in the said property and also filed affidavits to this effect in the proceedings. In view of the strained relations, the first suit was filed by petitioner being Suit No,588 of 1994 while the second suit being Suit No,63 of 1995 was filed by late Syed Azeemul Qadre Naqvi. As a counterblast respondents Nos.1 and 2 filed a suit being Suit No,508 of 1995 for partition and mesne profits. The above mentioned suits were consolidated by the learned VI Senior Civil Judge and were proceeded after framing of the issues. After recording the evidence, production of the documents and hearing the arguments on behalf 'of the parties, the learned VI Senior Civil Judge decreed the Suits Nos.134 of 2003 and 115 of 2003, filed by the petitioner and respondent No,4 and dismissed the Suit No,132 of 2003, filed by respondents Nos.1 and 2. The said order was assailed in C.A. No,84 of 2004 but the said appeal was dismissed vide judgment, dated 26-1-2005 maintaining the judgment and decree of the original Court. Respondents Nos.1 and 2 preferred IInd Appeal No,14 of 2005 against the judgment of the two Courts below in the High Court of Sindh, Karachi. After hearing of the parties, the judgments of the two Courts below were set aside with the observation that the act of respondents was deliberate to deprive the other legal heirs having right in property as no mutation of the property was effected in the record of respective departments. The respondents have failed to establish the very execution of gift deed in accordance with principle prescribed for it under Muhammadan Law. Hence this petition for leave to appeal.
3. Mr. I.H. Zaidi, learned Advocate Supreme Court, appearing on behalf of petitioner, has contended that the learned Single Judge while passing the impugned judgment has set aside concurrent findings of the Courts below and the impugned judgment is liable to be set aside. He further submitted that the law of gift and the rights of the donor and donee were misunderstood and misinterpreted by the learned Single Judge who failed to observe that all the essential requirements of a valid gift including transfer of possession were fulfilled and there was no reason or ground to dispute or deny the factum of gift and transfer of ownership in favour of his two sons, which even otherwise was admitted and supported by one of the sisters namely Syeda Razia Yousaf. Further submitted that there was malice on the part of other two sisters. He further submitted that the predecessor-in-interest (donor) distributed the entire cash received by him on his retirement to three sisters only and then gifted the two portions of the house to his sons which fact was not questioned or disputed by the two sisters as they did not deny or object to the gifts as evidenced by the declaration of gift for 15 years from the date of written declaration either during the life time of their father (donor) and for 5 years after his demise. According to him High Court unnecessary placed reliance on the letter of respondent No,2 regarding mutation of the property in question and committed gross infirmity thus, ignoring a valid gift in favour of respondents Nos.1 and 2 while the statement and evidence of Syed Razia Yousaf was not considered at all. He concluded that impugned judgment is contrary to law and fact and is liable to be set aside and the original orders passed by learned VI Senior Civil Judge and Appellate Court may be maintained. In support of his contention, he h`as relied upon Muhammad Feroz and others v.
Muhammad Jamaat Ali 2006 SCM R 1304 and Amjad Sharif Qazi and others v. Salim Ullah Faridi and others PLD 2006 SC 777.
4. Conversely, Mr. Habibur Rehman, learned Advocate Supreme Court for respondents Nos.1 and 2 submitted that predecessor-in-interest died on 27-7-1990 and the suit was filed after 12/13 years whereas petitioner intimated K.D.A. Vide letter dated 26-10-1990 about the names of the legal heirs of late Syed Tazeem Ali Naqvi and intimated the authorities that no transfer/mutation should be effected or allowed without the order of the Court. He further submitted that the suit was time- barred and the same was liable to be dismissed on account of law of limitation. Further that the authenticity of the documents, filed by the petitioner was under dispute as fraudulent and fabricated declaration of gift was produced and relied upon by the petitioner to prove the gift in their favour which remained not proved. In support of his arguments, he had relied upon the following judgments:---
(1) Abdul Jabbar and others v. Muhammad Jabbar and others 2002 SCM R 1173, (2) Muhammad Yaqoob through Legal Heirs v. Feroz Khan and others 2003 SCM R 41, (3) Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153, (4) Muhammad Bakhsh v. Ellahi Bukhsh and others 2003 SCM R 286 and
(5) Khushi Muhammad v. Liaqat Ali PLD 2002 SC 581.
5. We have heard the arguments of learned counsel for the parties and facts in the light of the case-law cited at bar. Now, we have to examine the extent and scope of interference of section 100, C.P.C. Regarding second appeal involving challenge to concurrent findings of fact ''recorded by the Courts below whether the High Court was empowered to interfere to set aside the concurrent findings howsoever erroneous by misreading of evidence on record, by ignoring a material piece of evidence on record or through perverse appreciation of evidence. It will be advantageous to examine the scope of section 100, C.P.C. Regarding second appeal. The following are the grounds for its consideration:---
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
6. From perusal of above grounds mentioned in section 100, C.P.C., second appeal does not lie on the ground of error or question of fact. It only lies on ground of law or error in procedure which may have affected decision of case upon merits. The decision arrived at by two Courts below was not shown to be either based on irrelevant or inadmissible evidence or further that evidence had in any way been misread by them. Although concurrent findings could be reversed in case of non- reading or misreading of evidence but the learned single Judge has not pointed out any flaw in the evidence to set aside the concurrent findings that evidence had any way been misread by them. It is obvious that learned single Judge had wrongly interfered with concurrent findings of fact.
Reliance may be placed on the case of Abdul Rashid v. Mst. Bashiran and another 1996 SCM R 808.
A similar view has been taken in the case of Haji Sultan Ahmad (deceased) through L.Rs, v. Naeem Raza and others 1996 SCM R 1729. As per provisions of section 100, C.P.C. Reversal of concurrent findings of fact as a result of reappraisal of evidence on record is not permissible unless the same is found to be perverse or contrary to the evidence on record. The learned trial Court and Appellate Court had thoroughly discussed the evidence and had decided the suits on merit on appreciation of the evidence on record, both oral and documentary. The two Courts below reflect that the evidence in the case was duly appreciated and discussed and they rightly came to the conclusion that the plaintiffs-petitioners had established their case.
7. Learned counsel for the respondents while emphatically supporting the impugned judgment relied upon certain case-law in support of his contentions which are not found to be of any help to the respondents as the pronouncements made therein have application to the facts of this case, moreso in the presence of the fact that the learned single Judge of High Court formed an erroneous view by misreading and ignoring material piece of evidence on record or through improper appreciation of evidence. We are of the view that the learned single Judge was not justified to reverse the concurrent findings of fact. The scope of section 100, C.P.C. Was not examined in its true perspective while deciding the IInd appeal. Therefore, other grounds urged by the respondents' counsel are not material for further consideration.
8. For the foregoing reasons, facts and circumstances, this petition is converted into appeal and the same is allowed. The impugned judgment, dated 9-4-2007, passed by High Court of Sindh, Karachi, is set aside and the judgments and decrees passed by the Courts below are maintained.
No order as to costs.