' This second appeal is directed against the judgment and decree dated 19s5s1980 of the learned Additional District Judge, Peshawar whereby he dismissed the first appeal of the plaintiff- appellants against the judgment and decree dated 20-11-1979' passed by the Civil Judge, Peshawar, whereby suit of the plaintiffs appellants for a declaration in respect of House Nos.
801s802/5s802/7, as detailed in the heading of the plaint, and for the grant of a perpetual injunction, was dismissed with costs.
2. The plaintiff-appellants alleged in the plaint that the suit property belonged to defendant No, 2, namely, Gasso, who, through an oral transaction in January, 1974 gifted the same to the plaintiff- appellants and also delivered its possession to them ; that on 26-1-1974 a document was also executed in favour of the plaintiffs by defendant No, 2 who is their father that subsequently this oral transaction was also registered on the basis of the so-called document i,e, `Tamaleek' ; and that as defendant No. 1 is not ready to recognise their rights and wanted to interfere with the suit property, therefore, the plaintiff-appellants were compelled to file the suit against defendant No. 1, as stated above.
3. Defendant No. 1, it may be mentioned here, contested the suit while defendant No, 2 confessed judgment in favour of the plaintiff-appellants. On the pleadings of the parties, the trial Judge framed as many as eleven issues, which are reproduced as under :-
(1) Whether the suit of the plaintiffs is liable to dismissal summarily ?
(2) Whether the plaintiffs have deliberately given the wrong address of defendant No, 2, if so, its effect ?
(3) Whether the Civil Court has got no jurisdiction to entertain this suit ?
(4) Whether the suit is properly valued for the purposes of court-fee and jurisdiction ?
(5) Whether the suit has not been verified properly and as such liable to dismissal ?
(6) Whether the suit has not been framed according to Law Reforms Ordinance, if so, is effect ?
(7) Whether the suit is collusive between the plaintiffs and defendant No, 2, if so, its effect ?
(8) Whether the plaintiffs have got a cause of action ?
(9) Whether the defendant No, 2 has transferred the suit house by means of an oral gift in favour of the plaintiffs and as such the plaintiffs are in possession of the suit house on the basis of the same ?
(10) Whether the decree dated 18-10-1975 in suit No, 42/1 Neem is ineffective and inoperative against the rights of the plaintiffs ?
(11) Whether the plaintiffs are entitled to the decree prayed for ?
(12) Relief ?
4. After recording the evidence of the parties, as they wished to adduce, the learned trial Judge held that the plaintiffs have deliberately given the wrong address of defendant No, 2; that the suit is collusive between defendant No, 2 and the plaintiffs ; that the plaintiffs have got no cause of action ; that defendant No, 2 had not transferred the suit house by way of oral gift to the plaintiffs, who are not in possession of the same on the basis of oral Tamleek' ; that the decree dated 19-10-1975 in suit No, 42/1 Neem is a valid decree passed by a competent Court in favour of defendant No. 1 and is effective against the plaintiffs ; and that the plaintiffs are not entitled to the decree prayed for.
Consequently, he dismissed the suit of the plaintiffs with costs.
5. Dissatisfied with the - above judgment and decree, the plaintiffs filed an appeal in the Court of Additional District Judge, Peshawar, which was also dismissed vide order dated 19-5-190, but the parties were left to bear their own costs, as stated in the earlier paragraph of this judgment.
6. Learned counsel for the parties heard at great length and record perused. Copy of the alleged transfer deed in favour of the plaintiffs-appellants by their father, defendant No, 2, is Exh. P. W. 1/.1, .
And copy of the so-called registered deed executed by defendant No, 2 in favour of the plaintiff- appellants is Exh. P. W. 1/2. It is also on record that defendant No. 1 had brought a suit against defendant No, 2 for the specific performance of the contract in respect of the suit house, which was decreed on 18-10-1975. Against this order, defendant No, 2 had filed an appeal, which was later on withdrawn on 26-3-1976 and the present plaintiffs brought the suit in hand on 12-2-1976. It may be mentioned here that during the appeal proceedings filed by defendant No, 2 against defendant No. 1, plaintiff Np. 1 was acting as attorney defendant No, 2 an attested copy of the said power of attorney in his favour is Exh. D. GJ. 1/9 executed on 4-2-1976. The plaintiffs brought the present suit on 26-3-1976, admittedly after the execution of the said power of attorney, therefore, they are not correct in claiming that they had no knowledge of the it No, 42/1 Neem pending between the defendants 1 and 2. Besides this, plaintiff-appellants have failed to produce defendant No, 2 as a witness, who could have proved the factum of the oral `Tamaleek' in favour of the present plaintiffs.
Thus, it was rightly held by the trial Judge that the "Tamleek" copy Exh. P. W. 1/1 being unregistered document, cannot confer any title upon the plaintiffs. Moreover, the register `Tamleek copy of which is Exh. P. W. 1/2 was admittedly executed during the pendency of suit No, 42/1 Neem between defendant No, 2, and, therefore, under the law the same also does not confer any title upon the plaintiffs to file the present suit. Further more, defendant No, 2 had not disclosed the factum of the so-called oral or registered `Tamleek' by him in favour of the plaintiffs, while he submitted his written-statement, copy Exh. D. W. 1/5, in the suit No, 42/1 Neem, which was later on decreed in favour of defendant No. 1 against defendant No,
2. So, it can be said that the present suit filed by the plaintiffs is a collusive suit between them and defendant No, 2.
7. Vide agreement to sell dated 4-3-1967, copy Exh. D. W. 1/2 defendant No, 2 had bound himself to sell the suit property in favour of defendant No. 1, and this date is much earlier than the alleged transaction of the oral gift, taking place somewhere in January, 1974. Therefore, the collusive nature of the present suit is apparently there.
8. Learned counsel for the respondent in support of his case cited S. Ali. Zahuruddin and others v.
Muhammad Ghyasuddin Ahmed and others wherein it has been held as under :- "It is not a matter of absolute right to get a declaratory decree. It is discretionary with the Court to grant it or not and in every case the Court is to exercise a sound judgment as to whether it is reasonable or not under the circumstances of the case to grant the relief asked for.
' Where the conduct of the plaintiffs indicates that the suit is filed for some other motive and not in good faith, the Court is entitled to refuse to exercise its discretion in favour of the plaintiffs."
' Another authority cited by the learned counsel fOr the respondent is reported in Muhammad Amin etc. v.. Mian Muhammad , wherein it has been observed :- "Sections 42 and 56 of the Specific Relief Act deal respectively with suits for declaration and injunction, both being discretionary and equitable reliefs. The principle laid down in section 56(j) rests on the maxim that he who seeks equity must do equity and should come with clean hands.
Although the relevant provision which embodies this principle apparently appears to have been made only in regard to a suit for injunction, but in a chain of judicial pronouncements the principle has been equally found to be applicable to declaratory suits,"
' On the point that finding of facts cannot be upset in second appeal, the learned counsel for the respondent cited a case reported in Sh. Ilahi Bakhsh and 10 others v. Ghulam Muhammad Khan and 20 others . Another authority on the above point is reported in Akbar All Shah and 3 others v.
Muhammad Shah and 4 others which lays down as under :- "Final Court of fact is first appellate Court-Its finding' cannot be interfered in second appeal- ' Reappraisal of evidence in second appeal-Not permissible."
' The learned counsel also argued that appreciation of evidence on the basis of which lower appellate Court gave a finding of fact, cannot be interfered with, and the same is final and binding.
If any 'authority is needed in this behalf, reference can easily be made to the following two authorities, viz. Hafiz Muhammad Hussain and another v. Abbas Khan and another , where the observation made is as under :- "Second appeal-Appreciation of evidence-Findings of fact recorded by first appellate Court-Final and binding and cannot be interfered with merely on basis of same being based on an incorrect appreciation of evidence."
' Begum Bibi and 9 others v. Abdul Ghani and 4 others reports as such :- "Second appeal-Concurrent findings of trial and first appellate Courts as to presence of consideration and legal necessity in impugned transaction of sale upset by High Court-Held : Concurrent findings of two Lower Courts could not be set aside in absence of any of contingencies prescribed in section 100."
9. I am in respectful agreement with the above-cited judicial pronouncements and hold that as both the lower forums have unanimously held that the plaintiffs bad no cause of action the suit is collusive between the plaintiffs and defendant No, 2 ; that defendant No, 2 had not transferred the suit house by way of oral gift to the plaintiffs ; that the plaintiffs are not in possession of the suit house and that the decree passed on 18-10-1975 in Civil Suit No, 42/1 Neem in favour of defendant No. 1 against defendant No, 2 is effective on the rights of the plaintiffs. As such, the present plaintiff- appellants are not entitled to the decree prayed for.
10. The net result of the discussion gone before is that I concur with the findings of both the lower Courts and finding no force in this second appeal dismiss the same with costs. PLD 1967 Dacca 7611 2 3 4 5 6 1