Ch. Muhammad Ibrahim Zia, C.J.- The captioned petition for leave to appeal has been filed against the judgment and decree of the High Court dated 26.02.2019, whereby , the appeal filed by the petitioners, herein, has been dismissed.
2. The precise facts of the case are that the petitioners, herein, filed a suit for declaration and cancellation of gift- deed dated 13.01.2003, pertaining to land Khewat No. 24 Khata No. 542 to 544 measuring 57 Kanal 19 Marlas and Khewat No. 179, Khata No. 1398, survey No. 2808, measuring 16 Kanal 13 Marlas, situated at village Khore, Tehsil Khoiratta, District Kotli before the Court of Civil Judge Kotli, wherein, it was averred that the defendant No.2 to 4 by practicing fraud got attested gift-deed dated 13.01.2003 on behalf of one Noor Ahmed, whereas, he is dump, deaf and insane and was unable to do so. The whole proceedings of the said gift-deed were made on the basis of fraud against the rights of the plaintif fs as defendant No. 1 has transferred the suit land to the plaintif fs through oral gift in the year 1982 therefore, the gift-deed dated 13.01.2003 may be cancelled on the basis of non-delivery of possession. It was averred that in the year 1982, defendants by practicing fraud have got attested gift-deed of the suit land which was challenged by defendant No.1 and defendants No. 2 to 4 by presented cognovits before the Court and said gift-deed was cancelled on 03.08.1982. It was further averred that the defendant No.1 in the year 1982 after obtaining cognovits decree transferred his whole land alongwith house and Shamilat land through oral gift to the plaintiffs. It was alleged that from the time, plaintiffs are owners and possessors upon the disputed land. The plaintiffs are uneducated, however, the father of defendant No. 1 to 4 was prudent, therefore, in the revenue record the land in dispute was entered in his name which is against the facts, however, defendant No.1 is totally dumb, deaf and insane who is on bed since 1983, therefore, gift-deed dated 13.01.2003 is without possession and is also against the facts and law hence the same may be cancelled. It was alleged that defendant No.1 was never possessed and all the revenue entries in this regard are also incorrect as well as gift deed dated 13.01.2003, hence, the same is liable to be cancelled. It was stated that the plaintiffs have made huge improvement in shape of houses and boundary walls of Million Rupees over the disputed land. The defendants were asked many time to cancel the said gift-deed but they denied the same, therefore, decree in favour of the plaintif fs may be granted. The suit was contested by the other side by filing written statement, wherein, the claim of the plaintif fs has been refuted in toto. The learned trial Court framed as many as 10 issues and directed the parties to lead evidence in support of their respective claims. At the conclusion of the trial, the learned trial Court dismissed the suit vide judgment and decree dated 06.12.2010. Against the aforesaid judgment and decree, the petitioners, herein, preferred an appeal before the learned District Judge Kotli, which after hearing the learned counsel for the parties also met the same fate vide judgment and decree dated 25.11.2013. The said judgment and decre e was challenged by way of appeal before the High Court. The learned High Court after necessary proceedings has also dismissed the appeal through impugned judgment, hence, this petition for leave to appeal.
3. Ch. Muhammad Ashraf Ayaz, Advocate , the learned counsel for the petitioners argued the case at some length.
He discussed the facts of the case in the light of the pleading of the parties and submitted that the Court below has fell in error of law while passing the impugned judgment which is the result of mis reading and non-reading of evidence. The Courts below have not considered that one of the defendant Noor Ahmed admitted the suit and his statement was also recorded. This important proposition has also not been considered and resolved by the Courts below , therefore, grant of leave is justified.
4. Conversely , Mr. Kamran Taj, Advocate, the learned counsel for the respondents opposed the petition on the ground that all the three Courts have unanimously passed the judgment against the petitioner . There is no mis- reading and non-reading of evidence. So far as the cognovits of Noor Alam is concerned, the petitioner himself stated that he is deaf and dumb and thus, the same is forged and not reliable.
5. I have considered the arguments of the learned counsel for the parties and examined the record made available. The proposition raised, specially, the admission of the suit by one of the defendant Noor Ahmed whose statement has also been recorded, has not been attended by any of the Court and any findings on this point has also not been incorporated in the judgment coupled with other grounds, are valid reasons for grant of leave, therefore, leave is granted. The petitioners shall deposit security of Rs. 1000/- within two weeks' time, otherwise, the lave granting order shall automatically stand rescinded. The office shall proceed further according to rules.