2012 C L C 1002
[Balochistan]
Before Abdul Qadir Mengal, J
YAQOOB and 3 others ----Petitioners
versus
SAWALI and another ----Respondents
Civil Revision No.218 of 2005, decided on 30th December, 2011.
Specific Relief Act (I of 1877) ---
----Ss. 31, 42 & 54 ---Suit for declaration, permanent injunction and correction of
Revenue Record ---Both the Trial Court as well as Appellate Court had failed to consider
the evidence, which had come on record from the side of the plaintiff ---Both courts on
account of wrong assumption had discussed extraneous legal and factual positions
contrary to the evidence, or statements which had come on record from the side of
plaintiff ---Such was one of the clear -cut cases where orders of both the courts were not
based on any evidence and decrees were passed arbitrarily, and injustice had creped out
as a result of the said judgments and decrees ---No doubt, concurrent findings, normally
could not be disturbed in a revisional jurisdiction, but, when any court acted illegally, or
with mat erial irregularity and its judgment was based on no evidence or on inadmissible
evidence, and resulted injustice, then justice demanded that such judgment be corrected ---
Both courts having failed to read the evidence, and decisions/findings were based on n o
evidence, such findings were not immune from interference ---Judgments and decrees by
Qazi/Trial Court and by Majlis -e-Shoora/Appellate Court were set aside and suit of
plaintiff was decreed as the same was established and proved.
Abdul Sattar v. Mrs. Sardar Begum, 2003 CLC 1294; Muhammad Hassan v.
Liaqat Ali Khan 2001 CLC 1743; Abdul Rahim v. Muhammad Ilayat 2004 SCMR 1723
and Habibullah v. Abdul Hakim 1997 SCMR 1139 ref.
1989 SCMR 34 and Muhammad Nawaz v. Jiand Rai, 1981 CLC 867 rel.
Muhammad Was say Tareen for Petitioners.
Ali Ahmed Kurd for Respondents.
Date of hearing: 9th December, 2011.
JUDGMENT
ABDUL QADIR MENGAL, J. --- This civil revision petition under section 115,
C.P.C. has been filed against the judgment and decree dated 31 -3-2005 pas sed by Majlis -
e-Shoora at Uthal, whereby the judgment and decree dated 29 -6-2002 passed by Qazi
Lasbela at Uthal, was set aside and suit of the plaintiffs was dismissed.
2. Brief facts of the revision petition are that the petitioners/ plaintiffs on 2 -12-2001
filed a suit for declaration, permanent injunction and correction of Revenue Record in
respect of entries of Khasra No.70, measuring 29 acres, 3 rods 25 poles, situated at
Mouza Kandala Gharbi is bounded as bellow: ---
East: General thoroughfare and l and of Waloo.
West: Land of Hashim.
North: Property of respondents/defendants.
South: Property of petitioners/plaintiffs.
3. The petitioners/plaintiffs stated that property in dispute is of their ancestral
property and the same is in their possession fr om the time of their forefathers and they
also have raised Bandats over the same, however, the petitioners/plaintiffs residing at
Tehsil Lakra, therefore, the property was managed and developed through their tenants.
The petitioners/plaintiffs further stat ed that in the year 2001 the property in question
wrongly was entered on the name of respondents/defendants. When new settlement was
started in their area, the settlement staff came over the land in dispute he was asked that
their land was recorded to the names of respondents/defendants, as such, the
petitioners/plaintiffs after coming to know the position approached the
respondents/defendants and asked them to make the record correct. Initially they agreed
to rectify the record, later on, they went back fr om their commitment, therefore, the
petitioners/plaintiffs have come with the present suit.
4. The respondents/defendants contested the suit by filing their written statement
stating that the property in question had been recorded to their names about 35 y ears back
and further the boundaries of the property have not been correctly mentioned. The
respondents/defendants again mentioned that the petitioners/plaintiffs have nothing to do
with the property in question as the same belongs to them and they are in possession of
the same.
5. After filing of written statement, the trial court framed the following issues on 28 -
1-2002 for disposal of the matter.
6. The both parties were directed to produce their witnesses. In this regard the
petitioners/plaintiffs produ ced four (4) witnesses (P.W.1) Saleh son of Hashim, (P.W.2)
Sadiq son of Lakho, (P.W.3) Waloo son of Ibrahim, (P.W.4) Duroo son of Mulla Tajo and
then the attorney recorded his own statement in support of the claim or suit.
7. The respondents/defendants pr oduced seven (7) witnesses in support of their
version. They were, the (DW -1) Eassa son of Muhammad Umar, (DW -2) Muhammad
Hassan son of Muhammad Umar, (DW -3) Sozo son of Ayub, (DW -4) Raza Muhammad
son of Guloo (DW -5) Abdul Khan son of Haji Abdul Ghani, (DW -6) Mulla Bakhsh son of
Jango, (D.W. -7) Muhammad Sadiq son of Murad Ali and then the attorney Muhammad
Qasim son of Muhammad Sadiq recorded his own statement in support of his version.
8. The learned Qazi after recording the statements of the witnesses of both parties
dismissed the suit on the ground that the petitioners/plaintiffs have failed to prove their
case and the witnesses of the petitioners/plaintiffs have deposed contradictory to each
other and further they had failed to describe the boundaries of the disputed property and
learned Qazi further held that as according to Sharia for a witness it is compulsory that he
should properly give the boundaries of the suited land and if any witnesses gave wrong
description of any side of the property, then acc ording to Sharia his statement or evidence
is not acceptable. Learned Qazi further has held in his judgment dated 29 -6-2002
that he himself visited the site and made inspection report of the disputed property,
however, he found that Bandats have b een raised just to show their possession over
the property, so being, it means that the P.Ws. have gave a false statement as such
their evidence is treated not acceptable, thus, the suit of the petitioners/plaintiffs was
dismissed.
9. The petiti oners/plaintiffs then challenged the impugned judgment of the Qazi
before Majlis -e-Shoora. The Majlis -e-Shoora vide his judgment and decree dated 30 -12-
2002 upheld the judgment of Qazi, whereafter the petitioners/plaintiffs approached this
court through a revision, whereupon this court vide order dated 7 -12-2004 remanded the
matter back to Majlis -e-Shoora for disposal with the following observations: ---
"(5) It is to note that the learned Majlis -e-Shoora has failed to attend the controversy
between the part ies and has not decided the same in accordance with the
provisions contained in Order XLI, Rule 31, C.P.C.. It was incumbent to have
passed a detailed speaking judgment on the issues after taking into consideration
the entire documentary as well as oral ev idence.
(6) The above position was confronted to the learned counsel for the respondents Mr.
Shams -ud-Din Achakzai, Advocate who very frankly conceded that it is a case of
remand and the learned Majlis -e-Shoora has to decide the same on the basis of
mater ial available on record.
(7) With the consent of learned counsel for the parties the matter is remanded to the
learned Majlis -e-Shoora Lasbella with the directions to decide the same
expeditiously on the touchstone of Order XLI, Rule 31, C.P.C. within a p eriod of
30 days."
10. Mr. Muhammad Wasay Tareen, learned counsel for the petitioners/plaintiffs
contended that the Qazi and Majlis -e-Shoora both failed to consider the evidence of the
petitioners/plaintiffs and they had not touched the evidence of the pet itioners/plaintiffs
and both courts on the basis of wrong assumptions and discussions passed the impugned
judgments and decrees which have no any relevancy with the record or evidence of the
case and by this way they had committed injustice with the petiti oners/plaintiffs. Learned
counsel further argued that actually the evidence of the case shows that witnesses of the
petitioners/plaintiffs fully proved the case and the respondents/defendants have almost
failed to contradict or rebut their evidence. In pre sence of the valid and lawful evidence,
the Qazi on his own, contrary to the facts has passed his decision on the basis of his
inspection report and rejected the evidence of the witnesses of the petitioners/plaintiffs.
He further argued that the respondent s/defendants have accepted the evidence of the
witnesses of the petitioners/plaintiffs and not crossed them, which impliedly show that
testimony of the witnesses stood admitted. In this respect learned counsel relied on the
case of Abdul Sattar v. Mrs. Sar dar Begum, 2003 CLC 1294 Lahore, which reads as
under: --
"Art. 132 --- Examination -in-chief --- Cross -examination --Witnesses not cross -
examined at all, implies that his testimony stood admitted."
In this respect learned counsel also relied upon the case o f Muhammad Hassan v.
Liaqat Ali Khan 2001 CLC 1743 Lahore, which reads as under: --
"Arts. 132 & 133 ---Cross -examination ---Where a portion of statement of a witness
was not challenged in cross - examination then it would be presumed that the party
against whom the evidence was being given had accepted the same."
11. Learned counsel further argued that as from the evidence of the witnesses and the
judgment of Majlis -e-Shoora it appears that there was another piece of land of the
petitioners/plaintiffs situat ed adjacent to the land in question and same also has not been
recorded on the name of petitioners/plaintiffs. Meaning thereby, the past Settlement
operation has been conducted in the absence of the petitioners/plaintiffs, as such they had
no knowledge abo ut the same that the entries gone to the wrong persons.
12. Learned counsel again argued that the mutation entries including the Jamabandi
not confer proprietary rights except raising rebuttal presumption in their favour. In case
there was no rebuttal of s uch entries but the same were on the other hand supported by the
other evidence then the persons could relief upon them. Here in the present matter the
respondents/defendants have fully failed to establish or support the mutation entries, as
such no any re liance could be made upon the same. In this respect learned counsel relied
upon the case of Abdul Rahim v. Muhammad Hayat 2004 SCMR 1723.
13. Mr. Ali Ahmed Kurd, learned counsel for the respondents/ defendants vehemently
opposed the contention of learned c ounsel of the petitioners/plaintiffs. Learned counsel
argued that the concurrent findings of both courts cannot be interfered in a revision
petition, despite of any error, it is trial court who decide it on one way or the other.
Learned counsel in this reg ard relied upon the case of Habibullah v. Abdul Hakim 1997
SCMR 1139 which reads as follow: --
"----S. 115 ----Revisional jurisdiction of High Court ---Scope ---Limitation ---
Essential ---Principles for exercise of revisional power ---Scope of interference with
concurrent finding of fact by High Court in exercise of its revisional jurisdiction is
very limited ---High Court while examining legality of judgment and decree in
exercise of its power under S.115, C.P.C. cannot upset finding of fact, however,
erroneous s uch finding is, on re -appraisal of evidence and taking different view of
evidence ---Such findings of fact can only be interfered with by High Court under
S.115, C.P.C, if Courts below had either misread evidence on record or while
assessing or evaluating e vidence had omitted from consideration some important
piece of evidence which had direct bearing on issues involved in the case ---
Findings of fact would also be open to interference under S.115, C.P.C, where
approach of Courts below to evidence was pervers e---Where High Court re -
assessed entire evidence on record and then discarded conclusions of Courts below
on account of being inconsistent with its own assessment of evidence such process
of examination for upsetting concurrent findings of fact in exercise of revisional
jurisdiction was not permissible by law ---Wrong or erroneous conclusion on
question of fact by Courts below was not open to disagreeing with conclusion of
Courts below did not take into consideration reasons given by First Appellate
Court fo r concurring with conclusions of Trial Court to determine whether any
misreading was committed by Courts below in assessment of evidence on record --
-High Court, itself undertook re -assessment and re -appraisal of evidence and
conclusions drawn by it were ma de basis for discarding finding of fact recorded by
two Courts below ---Fact that view taken by High Court of evidence was more
persuasive, reasonable or convincing could not be valid ground for interference
with concurrent finding of fact recorded by Court s below ---Possibility of another
view of evidence would not be a ground for interfering with concurrent finding of
fact by High Court in exercise of its revisional jurisdiction."
14. Learned counsel further argued that this matter has only been remanded fo r
rewriting of the judgment, as this court already has upheld the judgment of the trial
court, therefore, there is no need to interfere in the impugned judgments, which
are valid and based on sound reasoning.
15. After hearing both sid es, I have perused the record of the case, at the very outset I
may mention that both the trial and as well as appellate courts have failed to consider the
evidence which has come on record from the side of petitioners/plaintiffs. The trial and
the appella te courts on account of wrong assumptions have discussed extraneous legal
and factual positions contrary to the evidence or statements which have come on record
from the side of petitioners/plaintiffs. So this is one of the clear cut cases in which the
order of both courts not based on any evidence due to that both judgments and decrees
seems are passed arbitrarily due to that injustice has creped out in result of these
judgments and decrees. No doubt, that concurrent findings normally cannot be disturbed
in a revisional jurisdiction, however, it is settled principle of law that when any court
acted illegally or with material irregularity and his judgment based on no evidence or
based on inadmissible evidence, which resulted injustice, then justice demands t hat such
judgment to be corrected. Here both trial court i.e. Qazi and Majlis -e-Shoora have failed
to read the evidence, as such, when any decision/findings based on no evidence then such
finding not to be immune from interference, in this respect I have f ortified my view from
1989 SCMR 34 which areas as under: --
"(b) Civil Procedure Code (V of 1908).
---S. 115 ---Revisional jurisdiction ---Finding of fact when not to be immune from
interference ---Where decision on facts was based on no evidence or inadmiss ible
evidence or was so perverse that grave injustice would result therefrom, such
finding would not be immune from interference in revisional jurisdiction."
16. Thus, in the light of the above legal position, now I am adverting to the judgments
of the tri al court in the light of the evidence to show that learned Qazi has not taken into
consideration the evidence of witnesses which are fully proved the case of the
petitioners/plaintiffs and learned Qazi legally on the basis of his own inspection report
cann ot reject the evidence of the witnesses. In this connection I have benefited my view
from the case of Muhammad Nawaz v. Jiand Rai 1981 CLC 867, which reads as under: ---
"(c) Civil Procedure Code (V of 1908).
O. XVIII, R. 18 read with Evidence Act (I of 1872), S.3 ---Site inspection
note-Evidentiary value of ---Held, statement recorded by Judge during course of
inspection ---Of no evidentiary value unless person whose statement recorded
subject to cross --examination or opposite -party given opportun ity to do so."
17. As learned Qazi has pointed out Issue No.1 court -fee and then Issue No.3 in
respect of limitation and decided both the issues in favour of the
petitioners/plaintiffs, thus, the only Issue No. 2 whether suited property is ances tral
property of petitioners/plaintiffs and they are in possession of the same and cultivating
the same through tenant at Will, this issue has been decided against the
petitioners/plaintiffs. Anyhow, adverting to the evidence of the petitioners/plaintiffs to
consider the same whether Issue No.2 has been proved from the evidence or otherwise, it
would be appropriate for the sake of present case to give their evidence in toto and then to
see as to whether the petitioners/plaintiffs had succeeded to proved the Issue No.2 or
otherwise
18. Except the evidence of P.W.2 Sadiq son of Lakho who had only given the northern
direction of the suited property wrong description, while the rest of the all witnesses
properly and correctly have described the boundaries of the disputed land and had also
successfully established this fact that petitioners/plaintiffs are in possession over the
suited property from the time of their predecessor -in-interest. There is no any cross to
give any dent to the evidence of these witnesses and learned counsel for the
petitioners/plaintiffs rightly has mentioned that due to non -cross of the statement of P.Ws.
same is amounting to accept their evidence. Again it may pointed out that at best we can
say that the evidence of P.W.2 Sadiq son of La kho is not admissible according to Sharia
and he is not properly described the suited property, whereas the rest of the P.Ws. have
properly pointed out or correctly mentioned the boundaries of the suited property and
they subsequently have mentioned that t he ownership and possession of the same belongs
to the petitioners/plaintiffs and this version has not been denied or controverted by the
respondents/defendants.
19. Amazingly, the P.W.4 Duroo son of Mulla Tajo brother of the
respondents/defendants has als o stated that actually the said property is not ancestral
property of respondents/defendants as his brother only claiming over the disputed
property, because same has wrongly been recorded on his name in the Revenue Record
and this statement also has not b een denied or rebutted by the respondents/defendants and
admitted as correct.
20. Anyhow, the judgment of the learned Qazi shows that he has altogether excluded
the evidence and decided the issue on his own observations or inspection report. Learned
Qazi h as decided the rest of the two issue i.e. Issue Nos.4 and 5 with the following
findings: ---
21. Admittedly, the learned Qazi has decided Issue No.4 in favour of the
petitioners/plaintiffs, whereas, while deciding Issue No.5 Qazi has not discussed the
evide nce of respondents/defendants. However, the seven witnesses whose evidence has
not been mentioned hereinabove, were produced by the respondents/defendants, but on
my examination the evidence of all seven witnesses including the evidence of attorney are
inadmissible according to Sharia as none of them has properly described the boundaries
of the suited land nor any such material has come to support the contention of the
respondents/defendants.
22. The finding of learned Qazi over the Issue No.5 shows that he has only decided
the matter against the petitioners/plaintiffs that entries are recorded to the name of
respondents/defendants, so being, version of learned Qazi is absolutely wrong and he has
failed to exercise his powers properly and failed to read the evidence of
petitioners/plaintiffs which fully proves their case. No doubt in civil matters it is the
responsibility of petitioners/plaintiffs to prove their case and no any benefit could be
taken from the weaknesses of the respondents/defendants, therefor e, in view of the above,
I have not discussed the evidence of the witnesses of respondents/defendants. Suffice to
say that their evidence is in admissible according to Sharia and law and they have also
failed to prove the version of the respondents/defenda nts. While on contrary the
petitioners/plaintiffs have proved their case beyond any reasonable doubt. In this regard
the learned Majlis -e-Shoora has also failed to give any proper finding and the Majlis -e-
Shoora unnecessary has confined him on the point of court -fee and so wrongly has
mentioned that the witnesses of the petitioners/plaintiffs have not properly described the
boundaries of the suited land which is contrary to the facts of the case. So as, Majlis -e-
Shoora also has failed to properly evaluate t his fact that the petitioners/plaintiffs also
having land adjacent to the disputed property which is also not recorded in the Settlement,
though same was also belonged to them. On this point, the Majlis -e-Shoora has wrongly
expressed his view as petitioner s/plaintiffs have not entered or recorded their adjacent
lands in Settlement. So being, their version in respect of the present disputed land cannot
be accepted, as how he/they remained silent about his/their own properties. Learned
Majlis -e-Shoora also wi thout considering the evidence wrongly has held that the P.Ws.
have wrongly described the boundaries of the plaint or there is a contradiction in the
evidence on the point of boundaries.
23. Anyhow, the statement of P.W.1 Saleh son of Hashim shows correct description of
property and he without any defect has mentioned the boundaries which are in
consonance with the boundaries given into the plaint. So as evidence of P.W.3 Waloo son
of Ibrahim also on this point is consonance with the boundaries/description given in the
plaint. The DW -4 Duroo son of Mulla Tajo brother of the respondents/ defendants has
also correctly mentioned the boundaries, which are consonance with the boundaries of the
plaint. The attorney Ghulam Qadir also has properly mentioned the dire ctions of the
suited property. However, it is not understood that the Qazi and Majlis -e-Shoora how
took this view that there are contradictions in the statement of P.Ws. on the point of
boundaries.
24. Anyhow, the last objections of the learned counsel for the respondents/defendants
that as this court has remanded the matter only to the Majlis -e-Shoora to rewrite the
judgment as such this court has no power to revisit his own judgment and then evaluate or
discuss the evidence which is on record. On this po int I am not in agreement with the
view of the learned counsel, as the judgment of this court fully shows that Majlis -e-
Shoora was directed to take into consideration documentary as well as oral evidence and
also discuss the same on the basis of available record and then decide the matter,
therefore, this objection of learned counsel for respondents/defendants also having no any
substance, as such, same is repelled. In result this revision petition is allowed and the
both judgments and decrees dated 29 -6-2002 passed by Qazi Lasbela and the judgment
and decree dated 31 -3-2005 passed by Majlis -e-Shoora Lasbela at Uthal are set aside and
the suit of the petitioners/plaintiffs is decreed as same is established and proved, as such,
entries of Khasra No.79 measuri ng 29 acres, 3 rods 25 polts situated at Mouza Kandala
Gharbi be mutated and transferred from the name of respondents/ defendants to the names
of the petitioners/plaintiffs.
H.B.T./13/Q Petition allowed.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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