2012 M L D 1627
[Balochistan]
Before Muhammad Noor Meskanzai, J
MUHAMMAD AFZAL alias MAZEL and 4 others ---Petitioners
Versus
Haji HAQ DAD and 8 others ---Respondents
Civil Revision No.302 of 2003, decided on 19th June, 2012.
(a) Civil Procedure Code (V of 1908) ---
-----S.115 ---Spec ific Relief Act (I of 1877), Ss. 42 & 54 ---Suit for declaration and injunction -
--Revisional jurisdiction ---Misreading and non -reading of evidence ---Proof ---Suit filed by
plaintiffs was concurrently decreed in their favour by Trial Court and Lower Appellate Court -
--Validity ---Plaintiffs produced as many as four witnesses besides recording statement of
their attorney and all witnesses supported their claim ---Defendants failed to point out any
illegality in judgments and decrees passed by two courts below nor they could show any
irregularity in the proceedings ---Trial Court after proper appraisal of material available on
record dealt with the issues and gave its findings with reasons ---Defendants were under legal
obligation to point out as to which portion of e vidence had been misread or non -read but
defendants failed to do so, which was sine qua non for acceptance of revision petition ---High
Court declined to interfere in concurrent judgments and decrees passed by two Courts below -
--Revision was dismissed in ci rcumstances.
(b) Civil Procedure Code (V of 1908) ---
----S.115 ---Revisional jurisdiction of High Court ---Concurrent findings of fact by two courts
below ---Principle ---Such findings cannot be disturbed unless it is proved that same are result
of misread ing or non -reading of evidence.
Amir Siab and 2 others v. Government of N. -W.F.P. through Home Secretary at Peshawar
and 4 others 1994 SCMR 1778 rel.
Munir Ahmed Langove for Petitioners.
Zafar Khan Mandokhail for Respondents.
Date of hearing: 4th M ay, 2012.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---The instant revision petition is directed against
the judgments and decrees dated 31st May, 2003 and 22nd July, 2003 respectively passed by
Senior Civil Judge, Pishin and Additional District Judge, Pishi n, whereby the suit filed by
respondents was decreed and appeal filed against the said judgment and decree was
dismissed.
2. Brief facts, relevant for the disposal of this revision petition are that the respondents
instituted a suit for Declaration and P ermanent Injunction against the petitioners. It was
averred in the plaint that one Naik Muhammad sold his one room to plaintiffs but his son and
defendant No.1 are claiming ownership of said room. It was further averred that the property
bearing Khasra No. 141, Khata No. 14/16, Measuring 10 rods 35 poles, which is 'Abadi -Deh'
of Killi Ghundi and the plaintiffs are residing there. Furthermore, certain other pieces of land
which are not covered by walls or houses of plaintiffs, however, the same is in possessi on of
plaintiffs. The respondent No.1 demolished two rooms of his house, a guestroom and a store
for raising construction of a new guestroom.
3. The defendant No.1 in order to disturb the plaintiffs, filed an application before AC,
Pishin, DC, Pishin as well as lodged report on 17th May, 1999 claiming himself to be the
owner of land of 'Abadi -Deh' hence the suit.
4. The defendants/petitioners contested the suit by way of filing written statement,
whereby the claim of plaintiffs was repudiated on legal a s well as factual grounds. The
learned trial Court out of the pleadings of the parties framed allowing issues: --
(a) Whether the suit is competent in view of P/O A, B, C and F of W/S?
(b) Whether the suit is maintainable in view of P/O J of written sta tement?
(c) Whether the plaintiffs are owners, hence occupants of Khasra No.141 Abadi Deh, if
so, to what extent?
(d) Whether the defendants have any right on Abadi Deh, the property in dispute?
(e) Whether the plaintiffs are entitled for the relief claimed?
(f) Relief?
5. Thereafter the parties were directed to adduce evidence in support of their respective
claim. Whereas the respondents/plaintiffs produced four witnesses and got recorded their
statements through respondent/plaintiff No.2 as atto rney. In rebuttal, the petitioners/
defendants produced five witnesses and got recorded statement of petitioner/defendant No.1
as attorney.
6. On conclusion of trial, the learned trial Court vide judgment and decree dated 30th
October, 1999 decreed the s uit of respondents/ plaintiffs. Appeal filed by
petitioners/defendants against the said judgment and decree before the learned appellate
Court was allowed and the matter was remanded to the trial Court.
7. After remand, the learned trial Court again decr eed the suit of the
respondents/plaintiffs vide judgment and decree dated 31st May, 2003. The
petitioners/defendants feeling aggrieved from the said judgment and decree preferred an
appeal before the learned District Judge, Pishin, which was later on trans ferred to the file of
Additional District Judge, Pishin. The learned Additional District Judge, Pishin after hearing
the parties vide judgment and decree dated 22nd July, 2003 dismissed the appeal, hence this
revision petition.
8. The learned counsel for the petitioners argued with great vehemence that both the
judgments impugned herein are result of misreading of evidence, mis -appreciation of facts
and material available on record. Both the Courts below passed the judgments impugned in
violation of Order XX, Rule 5, C.P.C. as well as Order XLI Rule 31, C.P.C. The learned trial
Court has not given findings upon issues in accordance with law. Plaintiffs failed to prove
their case by producing tangible, trustworthy and confidence inspiring evidence but both the
Courts below failed to take note of this important aspect of the case.
On the other hand, learned counsel for respondents strenuously opposed the appeal and
argued that there are concurrent findings of facts arrived at by two Courts below which
norma lly cannot be disturbed unless it is proved that the same are perverse and result of
misreading and non -reading of evidence. Learned counsel stressed that the petitioners failed
to point out any illegality or material irregularity in the judgments/decrees impugned and
merely by raising general grounds the judgments passed by lower forum cannot be set aside.
Learned counsel emphasized that the petitioners were under legal obligation to point out that
which portion of the evidence has been misread or non -read, but the petitioners failed to do
so, as such the revision petition is not maintainable and liable to be dismissed.
9. I have considered the contentions put forth by the parties' learned counsel and gone
through the available record of the case with abl e assistance of learned counsel for the parties.
The perusal of record reveals that the respondents/plaintiffs produced as many as four
witnesses besides recording statement of their attorney, all the witnesses supported the claim
of respondents. The petit ioners failed to point out any illegality in the judgments/decrees
impugned nor any irregularity in the proceedings could be shown. The trial Court after proper
appraisal of material available on record dealt with the issues and gave its findings with
reasons, which are based on evidence. So I am not persuaded with the submission that there is
non-compliance of Order XX, Rule 5 of C.P.C. Similarly, the appellate Court took pain by
analyzing the evidence produced by parties and discussing the point of determ ination with
reasons. Hence there is substantial compliance of Order XLI, Rule 31, C.P.C. As far as
the restriction of relief qua respondent No.1 by the trial Court is concerned, suffice to observe
that it has caused no prejudice to petitioner, the refore, this plea is of no avail to petitioner.
Besides the petitioners were under legal obligation to point out that which portion of the
evidence has been misread or non -read, but the petitioners failed to do so, which is a sine qua
non for the acceptanc e of revision petition. It may be observed that there are concurrent
findings of facts arrived at by two the Courts below which normally cannot be disturbed,
unless, it is proved that the same are result of mis -reading or non -reading of evidence.
Reliance is placed on the judgment reported in 1994 SCMR 1778 (Amir Siab and 2 others v.
Government of N. -W.F.P. through Home Secretary at Peshawar and 4 others relevant at page
1779), wherein it has been held as under: --
"However, looked at from whatever angle t he reality remains that the High Court has
declined to interfere with concurrent findings of fact and that too in its revisional jurisdiction.
There was no compelling reason in the circumstances of this case to set aside the concurrent
findings by two Cour ts below in the said jurisdiction of the High Court. The appreciation of
evidence, it cannot be denied, does not suffer from any infirmity of law or principle. The
insistence of learned counsel that the reappraisal of the material by this Court can lead to a
different conclusion is by itself no ground for interference by this Court. However, on
questioning the learned counsel on this aspect as well, we have not been able to differ with
the High Court. The petition is, therefore, dismissed."
Before partin g with the judgment, it is pertinent to observe that the plaintiffs prayed for a
couple of reliefs in the plaint, however, the learned trial Court applying judicial mind
restricted/confined the decree to the extent of following relief: --
(i) That the pla intiffs being the residents of village Ghundi and occupants of their
respective property/houses which is Abadi Deh falling under Khasra No. 141 khatooni No.
14/16, Mouza Kaza Viala. Tehsil Barshore District Pishin are owners of the same;
(ii) That the pl aintiff No,1 has a right to construct a boundary wall and four rooms on the
land in dispute which was initially covered by old guest room and store and defendants have
no right to interfere in the same; and
(iii) The Defendants are permanently restrained from any interference in the property in
dispute and houses which possession the plaintiffs are enjoying and the property upon which
plaintiff No. 1 has raised construction falling under Khasra No. 141 Khatta No. 14/16 in
village Ghundi Mouza Kaza Viala.
Since rest of the relief could not be granted, therefore, the same were validly refused.
For the foregoing reasons, the petition filed by the petitioner is hereby dismissed with no
order as to costs.
MH/48/Q Revision 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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