2004 PLP 57 (MLD)

(c) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑S.115‑‑‑Revision‑‑‑Concurrent finding of facts by Courts below‑‑ Interference by High Court in revision, when justified‑‑‑Concurrent findings of facts by the competent Courts below were supported by actual evidence on record‑‑‑Examination of evidence for upsetting a concurrent finding of facts in exercise of powers under S.115, C.P.C. was neither permissible nor warranted by law‑‑‑Interference with a finding of fact by the Courts below by the High Court in exercise of its revisional jurisdiction, would only be justified if such finding was found to be suffering from misreading of evidence or non‑consideration of important and material evidence or the finding was the result of perverse appreciation of evidence on record‑‑‑Fact that another view of evidence was possible could not be a ground for interference with concurrent finding of facts by the High Court in , exercise of its revisional jurisdiction. Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 fol. Atlas Khan Dagai for Petitioner. Abdus Sattar Khan for Respondents. Date of hearing: 9th May, 2003. Shortly narrated the facts are that Taza Khan, Zar Kameen, Taj Muhammad and Zabta Khan sons of late Muhammad Ali residents of Ramyal, Tehsil Adenzai, District Dir, respondents herein, instituted suit under PATA Regulation for declaration and possession in respect of suit -land (detailed in the plaint) by virtue of inheritance of their father. The suit was resisted and the respondents' claim was denied. Necessary issues were formulated out of the pleadings of the parties 'the parties produced evidence in support of their respective contentions. Learned Civil Judge/Illaqa Qazi, Dargai Camp Court Chakdarra seized of the matter, proceeded to hold that respondents have succeeded to prove their claim in respect of suit‑land. He decreed the suit through his judgment and decree dated 13‑3‑1997. An appeal was preferred before learned District Judge/Zilla Qazi Dir at Timargara. The appeal was accepted, impugned judgment and decree was set aside and matter was remanded vide judgment dated 25‑1‑1999 with, the direction that daughters of Muhammad Ali deceased be made parties to the suit and thereafter, the legacy of the deceased he distributed among his legal heirs according to their 'Shari' shares. The respondents filed amended plaint by impleading all the legal heirs of the deceased. At the conclusion of trial, learned trial Judge maintained his previous judgment and decree dated 13‑3‑1997 and allowed the suit on 13‑10‑1999.

2. Rozi Khan petitioner, a real brother of the respondents, feeling aggrieved, has filed instant civil revision, challenging the impugned judgments and decrees of the Courts below, principally on the ground that material on record has not been properly scanned which has resulted in miscarriage of justice.

3. Mr. Atlas Khan Dagai, learned counsel for the petitioner, vehemently contended that the judgments and decrees passed by the Courts below are illegal, contrary to law and facts and evidence on record and cannot be allowed to remain intact. He reiterated that learned District Judge has not applied his mind to the legal aspect of the case and has recorded the judgment in a mechanical manner which is not sustainable under the law. The learned counsel also submitted that the case was remanded but the learned trial Judge maintained his previous judgment and decree without application of mind and in total disregard to the remand order made by the Appellate Court.

4. Mr. Abdus Sattar Khan, learned counsel for the respondents on the contrary, supported the impugned judgment and decrees of the Courts below and contended that the concurrent finding of facts recorded by the Court of first instance and maintained by the Appellate Court after proper appreciation and evaluation of the evidence on record, are not open to exception and no case for exercise of jurisdiction under section 115, C.P.C. has been made out.

5. There is no denial of the fact that petitioner and respondents are real brothers. They are sons of late Muhammad Ali, original owner or suit‑land. The dispute is essentially in respect of the share of the sons of the deceased. A perusal of the record would reveal that daughters of late Muhammad Ali were not impleaded as parties which necessitated the remand of the suit. After the‑remand, legal heirs of the daughters of the deceased waived their rights in favour of the petitioner and respondents and as such learned trial Judge maintained his earlier judgment and decree dated 13‑3‑1997 and decreed the suit by means of his judgment and decree dated 13‑10‑1999. The learned District Judge concurred with the trial Judge and upheld the judgments and decrees passed by him.

6. The arguments of learned counsel for the petitioner that the impugned judgment and decrees of the Courts below suffer from acute misreading and non‑reading of evidence, is not tenable. Both the Courts below have given a concurrent verdict/finding of fact regarding entitlement of the parties in the legacy of late Muhammad Ali, which cannot be disturbed by this Court in its revisional jurisdiction, unless Courts below while recording finding of facts are shown to have either misread the evidence or ignored any material piece of evidence on record or the same is perverse. The following observations were made in Abdul Hakeem v. Habibullah and 11 others (1997 SCMR 1139) by august Supreme Court of Pakistan:‑‑ "The scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under' section 115, C.P.C. is very limited. The High Court while examining the legality of the judgment and decree in exercise or its power under section 115, C.P.C. cannot upset a finding of fact, however erroneous it may be on reappraisal of evidence and taking a different view of the evidence. Such finding 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 evidence 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 Courts 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. Having stated the above board principles which would justify interference by a High Court with a concurrent finding of facts recorded by the Courts below, under section 115, C.P.C."

7. In view of what has gone above, it follows that concurrent finding of facts given by two Courts of competent jurisdiction are supported by actual evidence on file and examination of evidence for upsetting a concurrent findings of facts in exercise of powers under section 115, C.P.C. is neither permissible nor warranted by law. Interference with a finding of fact by the Courts below by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. would only be justified if such finding is found to be suffering from misreading of, evidence or non‑consideration of important and material evidence or the finding, is the result or perverse appreciation of evidence on record. The fact that another view of evidence is possible cannot be a ground for interference with concurrent finding of facts by the High Court in exercise of its revisional jurisdiction. The civil revision fails which is hereby dismissed with no order as to costs. M.B.A./918/P Petition dismissed.