2014 C L C 285
[Balochistan]
Before Muhammad Noor Meskanzai, J
ABDULLAH ----Petitioner
Versus
PROVINCIAL GOVERNMENT through Secretary Board of Revenue and 3 others ----
Respondents
Civil Revision No.116 of 2013, decided on 20th September, 2013.
(a) Civil Procedure Code (V of 1908) ---
----S. 115 ---Revisional jurisdiction of High Court ---Scope ---Concurrent findings of Courts
below ---Setting aside of such findings of fact by High Court in revisional jurisdiction ---Validity -
--Both the Courts below after attending each and every aspect of the matter by referring to the
ocular account as well as documentary evidence available on record had discussed and
considered the same keeping in view the established principles of law ---Conclusions drawn by
the C ourts below had been perfectly based on proper appreciation of facts, correct appraisal of
evidence and did not suffer from any infirmity ---Petitioner had not pointed out any piece of
evidence either to have been misread or omitted from consideration ---Concurrent findings of
facts arrived at by both the Courts below had based on proper appraisal of evidence and had not
suffered from any misreading or non -reading of evidence, therefore could not be interfered with
even if on re -appraisal of evidence another view might be possible ---Revision petition was
dismissed.
Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 rel.
(b) Specific Relief Act (I of 1877) ---
----S. 9---Suit for possession of immovable property ---Title of plaintiff was not clear ---Suit in
question was dismissed ---Validity ---Meaningful analysis and purposeful perusal of the entire
case of the petitioner reflected that no title had vested in the plaintiff on account of illegal,
invalid, inadmissible sale ---Plaintiff having no perfect title was not entitled to file the suit in
question ---Suit for declaration, without perfect title was incompetent, therefore liable to be
buried at its very inception ---Revision petition was dismissed.
S.M. Shafi Ahmad Zaidi through Legal Heirs v. Mali k Hassan Ali Khan (Moin) through
Legal Heirs 2002 SCMR 338 rel.
(c) Civil Procedure Code (V of 1908) ---
----O. XIII, Rr . 3 & 4 ---Document not brought on record through witness or duly exhibited ---
Validity ---Such document could not be taken into consideration by Court ---Petitioner had
produced a copy of lease deed/document, which was neither tendered in evidence nor had
exhibited, therefore the same had not been taken into consideration by both the Courts below ---
Suit filed by plaintiff was not based on the lease deed/document nor any reference of the said
lease deed/document had appeared in the pleadings ---Document/lease de ed beyond the pleadings
was entertained.
Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan
and others PLD 2010 SC 604 and Abdul Haque and others v. Shaukat Ali and 2 others 2003
SCMR 74 rel.
Zahid Muqeem Ansari for Petitioner.
Respondents by (sic).
Date of hearing: 27th August, 2013.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. --- The petitioner is aggrieved of the judgment
and decree dated 29th June, 2012 passed by Qazi, Kharan and judgment and decree dated 1 4th
February, 2013 passed by the Majlis -e-Shoora, Kharan whereby the suit and appeal filed by the
petitioner were dismissed respectively.
2. Facts in brief, are that the plaintiff filed a suit for declaration and injunction in the Court
of Qazi Kharan wi th the averment that the petitioner is Chairman of a Private Educational
Institution which is registered with Education Department. The plaintiff did not have landed
property to construct building for the school, so he, purchased a plot with boundaries and
measurement given in the plaint, from one Javed Masih against the price of Rs.50000/ -. The
plaintiff enjoyed a weak and feeble financial position, so, the District Government, District
Kharan, was requested for financial help, which culminated in acceptan ce of grant in aid of Rs.2
million through KPFB program. Initially, the construction of school was carried out by the
Government Contractor namely Salahuddin, but nevertheless on protest and resistance of
political figures the construction was carried out and completed by the B&R Department. After
completion of building, the plaintiff approached the District Administration, but the latter, on one
or the other pretext refused to handover the building to plaintiff, hence the suit in question.
3. The offici al defendants filed their written statement and contested the suit, wherein they
raised substantial questions regarding the locus standi of the plaintiff, maintainability of suit,
validity of so -called sale deed. Similarly by filing a comprehensive written statement each and
every fact narrated by the plaintiff was disputed and denied, the written statement contained a
detailed explanation qua each fact. Moreover, the facts concealed by the plaintiff were also
brought to the notice of the Court. Needless to mention that the suit was amended and respondent
No.4, was impleaded. After filing of the written statement, the trial Court framed issues arising
out of pleadings of the parties. The plaintiff in order to discharge his burden produced three
P.Ws. and got recorded his statement, whereas, no statement of D.W. was recorded, however, the
representative of official defendants entered the witness box. The defendant No.4, neither opted
to record his own statement in support of his written statement nor proposed to produce any
D.W. The trial Court after hearing the parties and evaluating the evidence dismissed/rejected the
suit. Feeling dissatisfied with the judgment and decree passed by the trial Court, the petitioner
filed Civil Appeal No.40/12, before the Majli s-e-Shoora, Kharan which too was dismissed vide
impugned judgment and decree dated 14th February, 2013, hence the present revision petition.
4. Mr. Zahid Muqeem Ansari, learned counsel for the petitioner inter alia contended that the
trial Court did not settle the issues properly and issues already framed do not reflect the real
controversy nor allow/award parties proper opportunity to produce their respective evidence. It
was further contended that issue No.4, was improperly framed and, as per the trial Court, the
existing facts in this behalf were not disputed rather admitted and the facts admitted need not to
be proved. Upon query, as to whether any application to the lower forums regarding correction,
striking, adding or amending the issues was made, t he answer was in negative. It was further
maintained that the trial Court did not appreciate the evidence available on record in its true
perspective. Though there are concurrent findings of facts but the conclusions drawn by the
Courts below are improper and result of misappreciation of evidence, therefore, the same are
liable to be interfered with. It was maintained that in any case there was no justification to
dismiss the suit on the ground of non -payment of court -fee particularly when the valuation of the
suit property was not determined. Both the Courts below have failed to appreciate the fact that
the building in question was constructed for educational purposes, betterment and welfare of
society to meet the needs of the needy and poor students. The p lot was purchased by the
petitioner and, thus, both the Courts below not only misappreciated the facts and misread the
evidence but failed to comply with the mandatory provisions of Order XX, Rule 5, C.P.C. and
Order XLI, Rule 31, C.P.C.
5. I have gone t hrough the available record with his able assistance. I have considered the
contentions but in my candid view, the petitioner has not been able to make out a case for
interference with the impugned judgments and decrees. As far as the first submission with regard
to non -settlement of proper issues is concerned, the submission lacks legal significance for the
reasons firstly, the issues already framed fully cover the controversy. Secondly, no controversial
fact remained unattended in the issues. Thirdly, no application either before the trial Court or the
appellate Court was ever moved nor any grievance was expressed at any stage before the lower
forums. Fourthly, even before this Court the learned counsel for the petitioner could not point out
the impropriet y in the issues nor any issue was suggested. Fifthly, even otherwise, if no issue has
been framed with regard to a particular controversial fact, the parties were alive of the
controversy and the pleadings did reflect their peculiar grievances, the parties may produce
evidence irrespective of the fact that no issue to such effect has been framed. Sixthly, it is not the
case of the petitioner that on account of non -framing of a particular issue the petitioner was not
allowed to produce evidence and, thus he was deprived of the right to produce evidence or any
prejudice was caused to his case. As far as the framing of issue No.4, is concerned, the same has
been resolved in favour of the petitioner, therefore, no prejudice has been caused to the petitioner
by f raming Issue No.4. As far as the grievance of improper appreciation of evidence is
concerned, the grievance appears to be baseless, ill -founded, improper, misconceived and
unwarranted. Both the Courts below by adhering to the provisions of Qanun -e-Shahadat Order
and referring to the principles of 'Sharia' have appreciated the evidence of both the parties in its
true prospective. The documents were properly construed. There is no misreading of the
evidence nor any particular portion/piece of evidence has bee n omitted from consideration.
Similarly, the contention of learned counsel with regard to the wrong conclusions drawn by the
Courts below absolutely appears to be unjustified. As observed earlier, both the Courts below
after attending each and every aspect of the matter by referring to the ocular account as well as
documentary evidence available on record discussed and considered the same keeping in view
the established principles of law. The conclusions so drawn are perfectly based on proper
appreciation o f facts, correct appraisal of evidence, which do not suffer from any infirmity. Even
during the course of arguments, the learned counsel for the petitioner could not point out any
piece of evidence either to have been misread or omitted from consideration. The law stands
settled on the subject that the concurrent findings of facts arrived at by both the Courts below if
based on proper appraisal of evidence and did not suffer from any misreading or non -reading of
evidence cannot be interfered with even if on re-appraisal of evidence another view may be
possible. By holding the view I am fortified by the dictum laid down in the judgment of Hon'ble
Supreme Court in its judgment titled as 'Abdul Hakeem v. Habibullah and 11 others reported in
1997 SCMR page -1139 relevant observations therefrom read as under: ---
"Before considering the contentions of the parties on merit, we would like to mention
here that the scope of interference with concurrent finding of fact by the High Court in exercise
of its revisional j urisdiction under section 115, C.P.C. is very limited. The High Court while
examining the legality of the judgment and decree in exercise of its power under section 115,
C.P.C. cannot upset a finding of fact, however erroenous it may be, on reappraisal of evidence
and taking a different view of the evidence. Such findings of facts can only be interfered with by
the High Court under section 115, C.P.C. if the Courts below have either misread the evidence
on record or while assessing or evaluating the evidenc e have omitted from consideration some
important piece of evidence which has direct bearing on the issues involved in the case. The
findings of facts will also be open to interference by the High Court under section 115, C.P.C. if
the approach of the Court s below to the evidence is perverse meaning thereby that no reasonable
person would reach the conclusions arrived at by the Courts below on the basis of the evidence
on record."
6. As far as the last submission i.e. the dismissal of suit for non -affixation of court -fee is
concerned, the argument lacks force as the trial Court did not dismiss the suit, nevertheless
observed that admittedly the petitioner was out of possession without seeking possession and
affixation of court -fee the suit for mere declaration is incompetent and, thus the suit was rejected.
However, the appellate Court while deciding the appeal and dilating upon the issue No.2,
attended this proposition by holding that since the suit has been filed for declaration and
injunction and the petitioner did not propose to seek consequential relief of possession, therefore,
to such extent the suit was exempted from court -fee. Similarly, as far as the submission with
regard to d efect in the judgments of lower forms on account of non -compliance of the provisions
of Order XX, Rule 5 and Order XLI, Rule 31, C.P.C. is concerned, of course, the compliance of
both the provisions is mandatory in nature and the perusal of impugned judgme nts reflects that
both the Courts below have strictly complied with the aforesaid legal provisions. The trial Court
dilated upon each and every issue by taking into consideration the facts of the case in its true
prospective and appreciated the evidence by keeping in view the principles of Qanun -e-Shahadat
Order, as well as Shariat, and drew proper conclusions. So, there is a complete compliance of
Order XX, Rule 5, C.P.C., by the trial Court. Similarly, the appellate Court after having gone
through the ple adings of the parties by taking into consideration the facts of the case and the
evidence produced by both the parties coupled with documents available on record attended each
and every minute aspect of the case, thus, there is no misappreciation of eviden ce nor there is
any miscalculation on the part of appellate Court. The appellate Court dilated and discussed each
issue separately with reference to evidence by forwarding cogent and plausible reasons in
support of its conclusion and findings. As far as th e submission with regard to the construction of
school for the welfare of masses is concerned, no doubt education is the need of the hour but
nevertheless to achieve the said goal the public property cannot be grabbed. The
petitioner/plaintiff has referred to a registration certificate pertaining to year 2006 but neither
produced annual result of the academic year nor evidence produced by the petitioner including
his statement, disclosed that the process of education is going on in these premises or any whe re
else. Apart from the above discussion, even otherwise, the suit filed by the petitioner does not
appear to be competent because admittedly the property in question belongs to the provincial
government and the petitioner claims to be a purchaser thereof from defendant/respondent No.4.
It is quite important to note that the plaintiff/petitioner in his plaint never claimed that the
property in question has been allotted to Javed Masih nor for that matter the
respondent/defendant No.4 in his written statemen t ever claimed to be an allotee of the property
in question. So, by no stretch of imagination the sale can be treated a valid and legal sale. In the
plaint, the petitioner relied upon a sale -deed which is neither registered nor attested, besides the
admiss ion that boundaries in the sale deed were misstated on account of clerical mistake and
with permission of the Court the same were corrected, particular para of the plaint is hereby
reproduced: ---
7. The correction of the boundaries in the so -called sale deed could never be permitted to be
corrected by the lower Court.
8. Besides, the affidavit of the plaintiff/petitioner to the effect that in case the school ceased
to function the building shall be handed over back to the Government is an additional
circumstance supporting the ownership of the Government. This fact further enfeebles and
weakens the case of petitioner and justifies the dismissal of the suit.
9. A meaningful analysis and purposeful perusal of the entire case of the petitioner reflects
that no title vests in the plaintiff on account of illegal, invalid, inadmissible sale, no perfect title
stood created for the plaintiff entitling him to file the suit in question. The law stands settled that
without perfect title suit for declaration is inc ompetent and such a suit is required to be buried at
its very inception. By holding the view, I am fortified by the dictum laid down in the judgment of
apex Court reported in 2002 SCMR Page -338 titled as S.M. Shafi Ahmad Zaidi through Legal
Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs' (relevant at page 342), wherein it
has been held as under: --
"Provisional transfer order does not, ipso facto, confer absolute title over the property.
Admittedly, this case is not governed by section 9 of the Special Relief Act. Without clear title
the suit for possession could not be filed. The Government gave the land to the Society and the
latter surrendered it back to the former. The predecessor -in-interest of the petitioners had no
independent right. His right, if any, was through the Society, and it ceased to exist before it
became perfect and enforceable in law. It is the requirement of law that incompetent suit shall be
buried at its inception. It is in the interest of the litigating parties and the jud icial institution itself.
The parties are saved with their time and unnecessary expenses and the Courts get more time to
devote it for the genuine causes. The findings of learned Single Judge and of Division Bench are
based upon material available on recor d and no legal infirmity has been pointed out. Under the
circumstances, the plaint was rightly rejected. "
10. Though, at belated stage, the petitioner produced a copy of lease deed, which was neither
tendered in evidence nor exhibited, therefore, legall y the same could not have been taken into
consideration by both the Courts below. By holding the view I am fortified by the dictum laid
down by the Hon'ble apex Court in its judgment titled as 'Federation of Pakistan through
Secretary Ministry of Defence a nd another v. Jaffar Khan and others' reported in PLD 2010 SC
604, wherein it has been held as under: ---
"The document which has not been brought on record through witnesses and has not duly
exhibited, cannot be taken into consideration by the Court."
11. I have no doubt in my mind that this document was not entertainable, as the suit filed by
the plaintiff was not based on this lease deed nor any reference of the said lease deed did appear
in the pleadings of plaintiff and defendant No.4, so this docu ment was beyond the pleadings. The
law stands settled that evidence beyond the pleadings is inadmissible. Reliance is placed on the
judgment of Hon'ble Apex Court titled as 'Abdul Haque and others v. Shaukat Ali and 2 others'
reported in 2003 SCMR page -74 (relevant at pare -80), wherein it has been held as under: ---
"The evidence led by the predecessor -in-interest of respondents beyond the scope of the
pleading was not permissible."
12. Nevertheless, both the Courts below in greater interest of justice entertained the
document and considered the same. As observed earlier, both the documents i.e. Sale deed and
Lease deed were neither exhibited nor tendered in evidence during the trial. Without prejudice to
above legal position, a bare perusal of the said documents reflects that the lease deed does not
contemplate the boundaries given in the plaint, besides the same appears to have been tempered.
In the written statement it has categorically been mentioned that the building in question has
been declared a L evies Line, handed over to the D.G. Levies, by now it has become the property
of Government of Balochistan through Home Secretary and the building in question is used for
more useful purposes.
For the foregoing reasons, no case for interference is made out, therefore, I am not
inclined to admit this petition to regular hearing, thus, the petition is dismissed in limine with no
orders as cost.
JJK/102/Bal. 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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