2010 C L C 1250
[Quetta]
Before Ghulam Mustafa Mengal, J
Mst. SHAHNAZ PARVEEN and 4 other ---Petitioners
Versus
ABDUL AZIZ and another ---Respondents
Civil Revision No. 136 of 2002, decided on 8th March, 2010.
Specific Relief Act (I of 1877) ---
----Ss. 42, 39, & 9 ---Suit for declaration, cancellation of agreement and possession ---
Trial Court decreed the suit and appeal filed by the defendants against judgment and
decree passed by the Trial Court had been dismissed by the Appellate Court ---Validity --
-Documentary evidence produced by the plaintiffs, which was an agreement showed
that predecessor -in-interest of the defendants was enjoying the possession of house in
dispute as licensee ---Evidence on record had also proved that house in dispute was
purcha sed by grandfather of the plaintiffs in . the year 1939; and that two rooms were
given to predecessor -in-interest of the defendants on rent ---Objection of defendants
with regard to limitation was also baseless ---Findings on question of fact and law
recorde d by the court of competent jurisdiction could not be interfered with in
revisional jurisdiction, unless those findings suffered from jurisdictional defect,
illegality or material irregularities --- Petition was dismissed by High Court.
Miss Sarwat Hina for Petitioners.
Manzar Siddique for Respondents.
Date of hearing: 1st February, 2010.
JUDGMENT
GHULAM MUSTAFA MENGAL, J. ---This Civil Revision Petition under section 115,
C.P.C. is directed against the Judgment and decree dated 31 -05-2001 pas sed by learned Civil
Judge -V, Quetta and Judgment and Decree dated 30 -4-2002 passed by learned Additional
District Judge -II, Quetta, whereby suit as well as appeal filed by petitioner were dismissed.
The precise facts of the case are that the respondents filed a suit for declaration, cancellation
of agreement dated 31 -7-1982 attested on 1 -8-1982 and possession of house bearing No.8 -
27/34, situated in Baluchi Street, Quetta against the predecessor -in-interest of the petitioners
namely late Rahim Bakhsh Bar fi in the Court of Civil Judge, Quetta. In. the suit following
reliefs were claimed.
"(a) Declaring that since the defendant No.1 have violated the terms of the agreement
dated 31 -7-1982 attested on 1 -8-1982 on the basis which he had been allowed to
reside in the disputed house, therefore same is liable to be cancelled and possession is
liable to be restored to the plaintiffs.
(b) That a decree for possession of house bearing No,8 -20/34 situated in Balochi
Street, Quetta entering into Khasra No.6368 be passed directing the defendants to
hand over vacant possession of the same to the plaintiffs.
(c) Any other relief which this honourable Court deems fit and proper in the
circumstances of the case may also be awarded in favour of the plaintiffs.
(d) Cost of the suit may also be allowed."
The petitioners /defendants contested the suit and repudiated the claim of the respondents by
means of their joint written statement dated 4 -9-1997.
Out of the pleadings of the parties the learned Civil Judge -V, Que tta framed the following
issues: --
1. Whether suit of plaintiff is hopelessly time barred?
2. Whether proper court fee has not been affixed on the plaint?
3. Whether suit is liable to be dismissed in view of legal objection 'A' and 'C'?
4. Whether agreement dated 31 -7-1982 is creation of fraud?
5. Whether suit is not competent in view of legal objection `E'?
6. Whether plaintiff is entitled for possession of disputed house bearing No.8 -20/34
situated in Balochi Street, Quetta bearing Khasra Nos. 63-68?
7. Whether plaintiff is entitled for relief claimed?
8. Relief?
The respondents/plaintiffs in support of their claim produced five witnesses namely Haji
Fazal Mohammad (P.W.1), Amir Bakhsh (P.W.2), Javaid Hussain (P.W.3), Mushtaq Ahmad
(P.W.4) , Mehmood Ahmad (P.W.5) and thereafter respondent No.1 got recorded his own
statement for himself and as attorney for respondent No.2.
The petitioner/ defendants produced seven witnesses namely Mohammad Yaseen (D.W.1),
Aftab Alain (D.W.2), Mohammad Mehdi (D.W.3), Shoukat Hussain (D.W.4), Faiz
Mohammad (D.W.5), Mirza Mohammad Akbar (D.W.6) and Ghulam Mohammad (D.W.7)
and thereafter petitioners Nos.1 and 2 got recorded their own statements.
The learned Civil Judge -V, Quetta decreed the suit vide judgment dated 31 -5-2001. An
appeal was preferred by the petitioners before the District Judge, Quetta. The same was
transferred on the file of Additional District Judge -II, Quetta. The learned appellate Court
vide judgment and decree impugned herein dismissed the appeal of petitioners. The
petitioners/defendants have assailed both the impugned judgments by filing the instant Civil
Revision Petition.
Miss Sarwat Hina, Advocate learned counsel for the petitioners contended that the suit filed
by respondents was bar red by time, but the Courts below have failed to apply its judicial
mind. She further argued that the document dated 31 -7-1982 was fraudulently prepared by
the respondents and the same has not been proved according to law, but the Courts below
have failed to decide issue No.4 and apparently the agreement dated 31 -7-1982 was creation
of fraud.
On the other hand Mr. Manzar Siddique, Advocate learned counsel for the respondents,
argued that Courts below have rightly analyzed the evidence on record and their concurrent
findings need no interference. He further argued that on 21 -7-2003 the petitioner No.1 filed
an application and prayed that she does not press the instant petition.
I have heard the learned counsel for the parties at length and perused the ava ilable record. I
have considered the submissions of the learned counsel for the petitioners and do not find any
merit therein. On the file of the lower Court, there is documentary evidence produced by the
plaintiff/respondents Exh.P/1, which is an agreemen t which shows that late Rahim Bakhsh
Barfi was enjoying the possession of house in dispute as licensee, and Exh.P/2, the registered
Sale deed dated. 19 -7-1939, which shows that the property in dispute was purchased by the
grandfather of the respondents nam ely Dur Mohammad from Jamadar Ghulam Rasool in the
year 1939 and after constructing three rooms and boundary wall, two rooms were given to
late Rahim Bakhsh Barfi for residence.
As to the objection to limitation, the same is also baseless. The need for s eeking declaration
arose because of the act of late Rahim Bakhsh Barfi, who after withdrawal of the suit, when
the petition filed before this Court was withdrawn on 9 -9-1993 and thereafter with the
collusion of revenue staff reversed the revenue entries in his favour by the late Rahim
Bakhsh. Thus the suit having been filed on 13 -6-1997 cannot by any stretch of imagination be
said to be barred by time.
It is settled principle of law that the findings on question of fact and law recorded by the
Court of co mpetent jurisdiction can not be interfered in revisional jurisdiction unless those
findings suffer from jurisdictional defect, illegality or material irregularities.
After hearing both the parties and perusal of record the concurrent findings recorded by the
Courts below, I am not inclined to interfere in the present controversy in exercise of
revisional powers under section 115 of the C.P.C., which otherwise are very limited.
Accordingly this Civil Revision Petition is dismissed.
H.B.T./38/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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