2006 PLP 1324 (CLC)

IJAZ-UL-HASSAN KHAN, J.

This civil revision under section 115, C.P.C., is directed against the judgment and decree, dated 17-5-2004, passed by learned District Judge/Zilla Qazi, Dir Bala, vide which appeal of the petitioners was dismissed and the judgment and decree dated 28-10-2002, of learned trial Court was upheld.

2. Briefly stated the facts of the case are, that respondents instituted a suit for permanent injunction on 14-4-2000, which was later on amended to include prayer of mandatory injunction against the petitioners. It was averred in the plaint that the plaintiffs are owners of land measuring 90 "Moti Daftar" in village Salam Kot; that these lands are irrigated through a "Nala". That the water for one "Moti" land was twelve hours in 45 days; that defendants are residents of village Salam Kot and due to shortage of water, they have settled in village Kiran and that defendants, to irrigate the "Lalmi" lands of village Karin, used the water of village Salam Kot for the lands of village Karin, due to which the lands of village Salam Kot had become barren. The plaintiffs prayed for permanent injunction by restraining defendants to use water of village .Salam Kot for village Karin and close "Dand" made for village Karin.

3. The suit was contested on All grounds legal as well as factual and claim of the petitioners was denied. Necessary issues were framed twice, one before the filing of amended plaint and the other after the amended plaint. After recording such evidence as the parties wished to adduce in support of their respective contentions, learned Senior Civil Judge/Aala Illaqa Qazi, Dir, accepted the claim of he plaintiff-respondents and decreed suit by judgment and decree, dated 28-10-2002. An appeal was preferred there against before learned District Judge/Zilla Qazi, Dir, which did not succeed. The same was dismissed by judgment dated 17-5-2004, giving rise to the filing of instant civil revision.

4. I have heard at length Mr. Fazal Amin, Advocate, for the petitioner and Qazi Zakiuddin, Advocate for the respondents in the light of the material on the file.

5. Though the impugned judgments and decrees of the Courts below have been challenged on a number of grounds in the memo. of civil revision, but during the course of arguments learned counsel for the petitioners mainly contended that the evidence and material on record has been misread and non-read by the both the Courts below, which has resulted in complete failure of justice. It was also argued that the averments made in the plaint pertain to a dispute which exclusively falls within the ambit of Canal and Drainage Act, 1873 and as such, Civil Court had no jurisdiction to entertain and adjudicate upon the dispute. The learned counsel also submitted that judgment of the appellate Court is not in consonance with the requirement of Order XLI, rule 31, C.P.C. and thus, cannot be allowed to remain intact. In support of the last submission, he placed reliance on Juma Khan v. Mst. Shamim and 3 others 1992 CLC 1022 and Wazir Khan v. Aziz Burney and 2 others 1992 MLD 1758.

6. Learned counsel for the respondents, on the other hand, controverted the arguments of learned counsel for the petitioners, maintaining that impugned judgments and decrees of Courts below are based on correct assessment of evidence on record and warrant no interference by this Court in its revisional jurisdiction.

7. Although this Court is not called upon to reappraise the evidence on record in exercise of its revisional jurisdiction, yet, in the interest of justice, I have gone through the evidence and find that the reasons recorded by the Courts below are in consonance with the material on record and no prejudice seems to have been caused to the petitioners. The trial Court as well as the appellate Court have elaborately discussed every aspect of the case and have dealt with the same in detail, leaving no room for further consideration. Material evidence on the record has been duly considered and appreciated by the Courts below and no significant error in this behalf has been shown to me.

8. It is well-settled law that a concurrent finding of facts by two Courts below cannot be disturbed by this Court in exercise of the revisional jurisdiction under section 115, C.P.C. unless the two Courts below while recording the finding of fact have either misread the evidence or ignored any material piece of evidence on record or the finding of fact recorded by the two Courts below is perverse to the evidence on record. It is well-settled that it only lies on the ground of error or law of error in procedure which may have affected the decisions of the case upon merits. In this view of the matter, I am fortified by the. observations made in Muhammad Anwar v. Muhammad Siddique Hashim PLD 1992 SC 838 and Sughra Bibi v. Aziz Begum and 4 others 1996 SCMR 137.

9. The objection of learned counsel for the petitioners regarding jurisdiction of Civil Court to adjudicate upon the matter, is equally without force. In view of the peculiar facts and circumstances of the case, Civil Court had exclusive jurisdiction to intervene and decide the matter.

10. So far as the objection regarding non-compliance of provision of Order XLI, rule 31, C.P.C. is concerned, it is true that an appellate judgment should set the points arising for determination, its decision thereon and the reasons for its decision. It is necessary for the appellate Court to record the point for determination, so that it can be determined whether the Court has dealt with all the points. The appellate Court must state its reasons for the decision. The provisions of Order XLI, rule 31, C.P.C. are mandatory.

11. In the instant case I find that the appellate Court has fully attended the controversy involved and stated the points arising for determination and its decision thereon. The impugned judgment is in conformity with the material on record and provisions of Order XLI, rule 31, C.P.C. are not found to have been violated in this case. The parties were fully alive to the issue involved and they were given reasonable opportunity to produce evidence in support of their respective contentions. Ibadullah and others v. Sher Afzal 2006 CLC 637 and Maqsood Ahmad v. Ali Naqi Shah 2002 CLC 1225.

12. No other point has been raised before me and rightly so. In the result and for the foregoing reasons, finding no substance in this civil revision, I dismiss the same, with no order as to costs. H.B.T./102/P?????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.