' CH. IJAZ AHMED, J.-- Necessary facts out of which the present petition arises are that respondent No,1/plaintiff Mst. Sharaf Elahi wife of Doost Muhammad filed a suit for declaration in the Court of Civil Judge, Depalpur, District Okara against Muhammad Afzal, Muhammad Aslam, Noor Ahmed respondents Nos.2 to 4/defendants and Muhammad Saeed petitioner/defendant. Respondent No,1/plaintiff sought a decree for declaration with permanent injunction to the effect that she is the owner in possession of land measuring 23 kanals, 13 marlas and Mutations Nos.632 to 634 i,e, on the basis of exchange and hibba be declared as in-effective on the rights of the respondent No,1/plaintiff and result of fraud. The contents of the plaint further reveal that the respondent No,1/plaintiff is an old, aged and illiterate lady and respondent Nos.2 to 4 were his close relatives.
The contents of plaint further reveal that suit property was mortgaged with the Agricultural Development Bank and for redemption of the property and repayment of the amount to the Bank, she requested respondent Nos.2 to 4 to accompany her, so she could make good the payment but they committed fraud with her in connivance with the officials of the revenue department. The suit was contested by petitioner/defendant No,3 only whereas respondents Nos.2 and 3/defendants Nos.1 and 2 were proceeded against ex parte whereas respondent No,4/defendant was only a pro forma defendant. Petitioner/defendant No,3 filed written statement, controverter the allegations leveled in the plaint. Out of the pleadings of the parties, trial Court framed six issues and thereafter recording the evidence and hearing the learned counsel for the parties, decreed the suit vide judgment and decree dated 18-5-2005. Petitioner being aggrieved filed appeal in the Court of Additional District Judge, Depalpur which was dismissed vide judgment dated 30-8-2007.
Petitioner being aggrieved filed Civil Revision No,1696 of 2007 in the Lahore High Court which was also dismissed vide impugned judgment dated 13-9-2007. Hence, this petition.
2. Learned counsel for the petitioner submits that all the three learned Courts below have not considered material evidence produced by the petitioner/defendant, that it was specifically pleaded in the written statement that Mutations Nos.632 to 634 dated 17-12-1996 were bona fide transactions and were duly attested by the concerned revenue officers i,e, Niaz Ahmed Dogar Naib Tehsildar who appeared as D.W.3 and Manzoor Ahmed Ex-Patwari who appeared as D.W.5 and that the learned Courts below without even considering these material pieces of evidence decreed the suit. He further urges that all the Courts below had mis-read the evidence of Muhammad Afzal (D.W.7), Haji Khalid (D.W.8) and Ghulam Dastgir (D.W.9).
3. The learned counsel for the respondents has supported the impugned judgment.
4. We have given our anxious consideration of learned counsel for the parties and perused the record. The material issues are issues Nos.1 and 4 which are reproduced hereunder:--
(1) Whether the exchange Mutation No,632 dated 17-12-1996 and subsequent mutation on the basis of above said mutation i,e, Mutation No,633 dated 17-12-1996 and Mutation No,634 dated 17-12-1996 are product of fraud and forgery, collusive, ineffective qua the rights of plaintiff and liable to be cancellation? OPP
(4) Whether defendant No,3 is bona fide purchaser of suit land? OPD
5. The first appellate Court had decided both the issues jointly as evident from paras 6 and 7 of the judgment. The first Appellate Court had re-examined the evidence on record in depth keeping in view all the principles of analyzing the evidence on record. The findings recorded in paras 6 and 7 depict that the first appellate Court had re-examined the evidence on record minutely and thereafter upheld the findings recorded by the trial Court on the said issues. It is an admitted fact that respondent/plaintiff is an aged, old and illiterate lady. It is also admitted fact on record that on the time and day of attestation of mutations i,e, on A 17-12-1996, she was alone with the respondents Nos.2 to 3 and petitioner/defendant. It is also an admitted fact that when respondent/plaintiff went to the Agricultural Bank, she was alone with the defendant Nos.2 to 3 and petitioner. The respondent No,1/plaintiff did not have any advice from any male member as depicted from the evidence or record. The petitioner is beneficiary of the transactions in question, therefore, it is the duty and obligations of the petitioner/ defendant to prove beyond any shadow of doubt that the transactions were executed in accordance with law. The petitioner/defendant had failed to prove that consideration was passed on to the plaintiff. The petitioner/defendant has failed to prove the case in terms of dictum laid down with regard to the illiterate ladies in Ghulam Ali's case PLD 1990 SC 1. Similarly, petitioner/defendant has failed to prove on record that consideration was paid to the respondent/plaintiff in terms of law laid down by this Court in Muhammad Shafi's case PLD 1986 SC 519.
6. We are perfectly conscious that as ultimate Court in the land, the Supreme Court, as a rule, should give due weight and consideration to the opinion of the Courts below and in particular to the opinion of the Court of first instance which had the advantage of hearing the parties, witnesses and watching their demeanour. Generally, this Court does not interfere with the findings of fact recorded by the primary Courts or a High Court when it is satisfied that the findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning the appreciation of evidence. This would be notwithstanding that a different view might also be possible meaning thereby this Court would not normally go behind the concurrent findings of fact recorded by the Courts below, unless it can be shown that the finding is on the face of it against the evidence or so patently improbable, perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any misapplication of a principle relating to appreciation of evidence, or, finally, if the finding could be demonstrated to be physically impossible. This being the practice and the rule of the Court in civil appeals, the burden lies rather heavily on the petitioner to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by us.
7. In the case in hand, we have also re-examined the evidence on record with the assistance of the learned counsel for the parties. We could not find any infirmity or illegality while rendering finding of fact by the first Appellate Court after re-appraisal of evidence in paras 6 and 7 of the judgment which was approved by the learned High Court in the impugned judgment. It is a settled law that constitutional jurisdiction is not maintainable against the concurrent findings of fact recorded by the Courts below while exercising power under Article 185(3) of the Constitution. It is also a settled law that constitutional jurisdiction is always discretionary in character. He who seeks equity must come with clean hands. Keeping in view the conduct of the petitioner as highlighted by all the Courts below while rendering finding of fact against the petitioner that petitioner wanted to deprive poor illiterate and an old lady from her valuable land, therefore, we are not inclined to exercise our discretion in favour of the petitioner.
8. The upshot of the whole discussion in that we find no merit in this petition which is dismissed.
Leave refused.
' CMA No,250-L/2009:--As the main petition has been dismissed, therefore, this application has become in fructuous.