1994 PLP 2037 (CLC)

CHAUDHRY MUHAMMAD TAJ, J.‑‑‑This appeal by leave of this Court is filed to assail the judgment of the High Court dated 9‑6‑1993, whereby the second appeal preferred against the judgment of the District Judge, Mirpur was dismissed and the decree passed by Sub‑Judge, Mirpur was maintained. The facts briefly stated are that Fazal Begum, respondent herein, filed a suit in the Court of Sub‑Judge, Mirpur, seeking declaration and perpetual injunction against the appellants‑defendants regarding the suit land on the ground that the same was donated in favour of respondent and her husband Tasawar Hussain (the pro forma‑respondent in the plaint who had died during the pendency of the suit and is survived by the respondents) on their wedding by Janaid Shah, Safdar Shah and Farzand Shah the ancestors of appellants defendants through a document executed on Maghar 2, 2001 Bk. The suit land is also claimed to be in possession of respondents in their own rights from the time it was gifted in their favour. The suit was resisted by the appellants‑defendants except Ghazanfar Ali who admitted the claim of the plaintiff. The learned Sub‑Judge passed a decree in favour of the respondents. An appeal filed before District Judge, the first appellate Court, was dismissed on January 13, 1993. The appellants, herein, filed the second appeal before the High Court which was also rejected on 9‑6‑1993. Hence this appeal. During the pendency of appeal before this Court the appellants, Ashiq Hussain Shah and Ghamkhar Shah sons of Safdar Hussain Shah admitted the rights of the respondents through the statements got recorded by Ashiq Hussain in person and as attorney of his brother Ghamkhar Shah before the Deputy Registrar of this Court. Ch. Muhammad Bashir, the learned counsel appearing for the appellants has invited the attention of the Court towards the document Exh.PA, the agreement brought on record by the plaintiff which according to him is fictitious and inadmissible in evidence. He has also pointed out certain discrepancies in the statements of witnesses with regard to location of the suit land. On the other hand the respondents, counsel supported the impugned judgment and maintained that none from the appellants‑defendants appeared in the witness‑box to repudiate the claim of the plaintiff and further maintained that out of two witnesses produced by the defendants Sardar Khan has also supported the case of the plaintiff. We have heard the learned counsel for the parties and also gone through the record with care. Plaintiff‑respondent has produced four witnesses namely, Muhammad Iqbal, Zaildar, Zaman Ali Khan and Raja Gul Nawaz in support of her claim while discharging the burden of proof including plaintiff herself. The witnesses prove the execution of agreement, Exh. PA and also state the continuous possession of the respondent‑plaintiff on the suit land whereas the appellants‑defendants have produced Muhammad Bashir and Sardar Khan as their witnesses out of them Sardar Khan has supported the case of the plaintiff instead of defendants. One of the defendants, Ghaianfer Shah. admitted the claim of plaintiff before the trial Court and the other two appellants, Ashiq Hussain and Safdar Hussain have also admitted the case of plaintiff before this Court. They have also filed `Dastbardari' from the prosecution of appeal filed before this Court. It may be seen that all the Courts below gave concurrent findings on all the issues in favour of plaintiff and, thus, decreed the suit. It admits of no exception that when evidence had received due and full consideration by the subordinate Courts on a fact, the finding cannot be disturbed or interfered with even by the High Court that the inference drawn by the Courts did not fairly arise out of the evidence or some other view point, on the evidence produced could also be taken‑The view finds support from `Shah Alam and others v. Hav. Muhammad Nawaz and 5 others' (PLD 1981 SC (AJ&K) 124) wherein the following observation was made:‑‑ "It would thus appear that unless some procedural defect, such as non reading of evidence, misreading of evidence or travesty of the finding is not established, a finding of fact cannot be allowed to be discharged by the High Court. In the instant case no such defect could be noticed." It is also observed in `Saleh Muhammad Khan v. Hassan Muhammad Khan' (1981 CLC 353) as under:‑ "A finding of fact, it is now settled law, cannot be disturbed in second appeal unless it can be shown that the evidence was misread or the finding is based on surmises and conjectures. Erroneous finding of fact, however inexcusable it may be, cannot be disturbed in second appeal unless there is some `defect in the procedure' causing error in the decision of the case on the merits. Mr. Justice Munir with whom we concur on the point in Nadir Shah v. Lal Shah (PLD 1954 Lah. 447) after referring to the leading authorities of the Privy Council on `' this subject came to the conclusion that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross and inexcusable the error may seem to be unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits." In the instant case both the subordinate Courts, Sub‑Judge and first appellate Court, have concurrently decided a question of fact. The learned Judge in the High Court has also appreciated the evidence and has critically examined the evidence in accordance with the settled principles of law although High Court refrains from reappraising the evidence. We have also gone through the record and have not been able to notice any error in the procedure provided by law. No misreading or non reading of evidence has been pointed out. It is not open to the appellants to canvass that finding in absence of any special circumstance. The normal rule is that with such a concurrent finding this Court would not interfere even an other view of evidence is possible, particularly when the evidence has been. correctly appreciated by subordinate Courts. In view of the above state of facts and law, the appeal fails with no order as to costs. AA./37/SA.C. Appeal dismissed.