1997 SCMR 1139 (PLP)

"Learned counsel for the petitioner contended that the learned High Court set aside the concurrent findings of fact recorded by two Courts below in exercise of its revisional jurisdiction without correctly evaluating the evidence on the record. It was further contended that the High Court, in fact, has misread evidence and overlooked material documents produced by the petitioner with the result that gross miscarriage of justice has taken place in the decision of this case. The contentions raised by the learned counsel for the petitioner require consideration. Leave to appeal is therefore, granted."

2. The appellant instituted a suit for declaration in the Court at Qazi, Sarawan, alleging that 4 pieces of land hearing Khasra Nos. 125 to 128, situated in Mauza Lavinda, Tehsil Mastung, District Kalat, measuring about 7 acres, 2 Rods and 32 Pales (hereinafter to be called as the suit land) was in his possession as his ancestral property. That the entries made in the revenue record in favour of respondents at the time of preparation of settlement record in respect of suit land had no effect on the title of the appellant. That the respondents on or about 30‑7‑1984 filed proceedings against the appellant under section 145, Cr.P.C. before the Assistant Commissioner, Mastung, claiming that the suit land was entered in the revenue record in their favour as owner and that the appellant was trying to take over forcible possession of the suit land. That from the proceedings under section 145, Cr.P.C., the appellant for the first time came to know about the existence of entries in the revenue record in respect of the suit land in favour of respondents and accordingly, after obtaining the copy of extract from the revenue record filed the suit claiming the reliefs of declaration and correction of revenue record. The suit was resisted by the respondents and on the basis of the pleadings of the parties, the trial Court framed the following issues:‑‑

3. The trial Court after recording evidence of the parties, decreed the suit on 13‑2‑1988. However: the judgment and decree of trial Court was set aside in appeal by Majlis‑e‑Shoora on 12‑6‑1988 and the case was remanded to the trial Court for a fresh decision in accordance with the law. After remand of the case by Majlis‑e‑Shoora to the Court of Qazi, Sarawan, the appellant/plaintiff amended his plaint to which amended written statement was filed by respondents and thereafter fresh issues were settled in the suit by the Qazi which were as follows:‑‑

4. After recording further evidence and hearing the parties, Qazi Sarawan again decreed the suit by judgment dated 4‑6‑1990 which was upheld by Majlis e‑Shoora. Kalat, by judgment and decree dated 10‑9‑1990. The respondents challenged the judgment and decree of Majlis‑e‑Shoora dated 10‑9‑1990 before the High Court of Balochistan, at Quetta, which was partly allowed and the case was remanded to Majlis‑e‑Shoora, Kalat, for a fresh decision of appeal on merits. The learned Majlis‑e‑Shoora, Kalat, after remand of the case reheard the appeal and by judgment dated 12‑5‑1991 dismissed the same. Once again the matter was brought before the High Court of Balochistan, at Quetta, in Civil Revision Application No. 128 of 1991, by the respondents/defendants. The learned Chief Justice by judgment dated 28‑12‑1991 accepted the above revision application and after setting aside the judgments and decrees of Qazi Sarawan dated 4‑6‑1990 and that of Majlis‑e‑Shoora Kalat, dated 12‑5‑1991, dismissed the suit instituted by appellant. The appellant preferred Civil Appeal No. 18‑Q of 1993 before this Court against the judgment and decree of High Court dated 28‑12‑1991, which was allowed on 7‑9‑1993 and the case was remanded to the High Court for a fresh decision of Civil Revision Application No. 128 of 1991 in accordance with the law, After remand of the case by this Court, the learned Chief Justice once again re‑affirmed his earlier decision and accepted the Civil Revision Application filed by respondents giving rise to the present appeal.

5. The main thrust of the argument of learned counsel for the appellant is that the learned Chief Justice could not interfere with the two concurrent judgments and decrees of the Courts below on a question of fact after reappraisal of the evidence in the case as there was no misreading or non‑reading of evidence by the two Courts below. The learned counsel for the appellant contended that the oral and documentary evidence in the case fully supported the claim of appellant to the suit and in the absence of any perversity in the appreciation of evidence, the findings of facts could not be interfered with by the High Court in exercise of its power under section 115, C.P.C. The learned counsel for the respondents on the other hand supported the judgment and decree passed by the learned Chief Justice.

6. 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 jurisdiction 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 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 broad principles which would just by interference by a High Court with a concurrent finding of facts recorded by the Courts below, under section 115, C.P.C, we now proceed to examine whether in the present case the learned Chief Justice while upsetting the two concurrent judgments of the Courts below acted within the scope of the above‑stated principles. The learned Majlis‑e‑Shoora (1st Appellate Court) in its judgment dated 12‑5‑1991 after referring to the evidence on record in the case while agreeing with the analysis of the evidence by Qazi Sarawan, observed as follows:‑

7. The learned Chief Justice in the impugned judgment while disagreeing with the conclusions of the Courts below held as under:‑‑ "I have carefully considered the evidence brought on record in the light of above arguments. It may be seen that witnesses examined by plaintiffs/respondents have mentioned about their cultivation possession over suit‑land. Some of said witnesses deposed about temporary cultivation of suit land on behalf of plaintiff/respondent. They have tried to express that suit ‑land was ancestoral property of plaintiff/respondent. To supplement the claim certain receipts of land revenue and Ushr; pertaining to land of Lavinda have also been produced. It may be mentioned that none of the receipts contain area of land or Khasra number for which revenue etc, was deposited. Therefore, unless land for which such payments were made is duly identified through concerned Revenue Authorities said receipts cannot be co‑related with suit‑land. This fact is not disputed that plaintiffs are recorded owners pertaining to certain pieces of land in Mouza Lavinda. Authenticity of revenue receipts of reconnecting with suit‑land becomes more necessary. It may however, be noticed that version of all witnesses regarding ownership of plaintiff, respondent is considerably vague being of general nature and based on hearsay information s. Testimony of witnesses adduced by plaintiff does not specify tangible source or basis showing their ownership. They merely base their impression or assessment gathered from circumstances which obviously cannot be deemed sufficient for rebutting presumption which normally flows in favour of recorded owner. Synopsis of witnesses clearly disclose that plaintiff/respondent mainly produced evidence for, establishing cultivation of suit‑land at different occasions. The witnesses who worked as Bazgar for plaintiff/respondent were unable to give definite area of land, quantity of yearly produce, commodity of cultivation or other description of like nature. It would be pertinent to mention here that plaintiff and few witnesses have admitted that Awal Khan and Abdur Rehman have also cultivated potatoes over suit land. Said Awal Khan and Abdur Rehman were examined by the petitioner. They categorically maintained that suit‑land belonged to petitioner and was cultivated by them on his behalf. It has come in evidence that majority of land in Lavinda belonged to Dehwar tribe. However, certain portions have now been purchased by members of Brahvi tribe. Entries were recorded about 26 years back and petitioner is not made any protest against the same. Absolutely no explanation has been furnished by plaintiffs concerning their failure to challenge the entries which existed in favour of petitioner during all this period. Certified copies of Mutation No.6 showing‑entries of certain pieces of land in Mouza Lavinda in favour of plaintiff/respondent and their family members have been brought on record. The scrutiny of this document suggests that wherever plaintiffs or their family members and ownership entries were got recorded. Besides presence of plaintiffs near Mouza. Lavinda during last twenty‑six years is amply proved. It may further be seen that Sanad relied upon by plaintiff does not implicitly support their claim as regards suit‑land. Thus proper scrutiny and comparison of oral and documentary evidence, apparently does not substantiate claim of plaintiff/respondents regarding ownership of suit‑land. At best evidence brought on record shows cultivatory possession which by itself would not be sufficient for treating their legal entitlement or ownership." The above reasoning of the learned Chief Justice does not show that the reasons given by the Courts below in support of their conclusions were taken not of by the High Court and were found suffering from misreading of material evidence or record. The learned Chief Justice, in fact, re‑assessed the entire evidence on record and then discarded the conclusions of the Courts below as they were found inconsistent with his own assessment of evidence. This process of examination of evidence for upsetting a concurrent finding of fact in exercise of powers under section 115, C.P.C. in our view, is neither permissible nor warranted by law. As earlier pointed out by us, 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. could 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 of perverse appreciation of evidence on record. A wrong or erroneous conclusion on a question of fact by the Courts below is not open to interference by the High Court in exercise of its jurisdiction under section 115, C.P.C. We may also mention here that the High Court while examining a concurrent finding of fact recorded by the Courts below in exercise of its jurisdiction under section 115, C.P.C. has to attend to the reasons given by the Courts below in support of such finding and misreading, non‑reading or perverse appreciation of evidence has to be discovered in the reasonings of the Courts below to justify interference in exercise of its revisional jurisdiction. We have already reproduced the reasons given by the 1st Appellate Court while concurring with the conclusions of the trial Court. The learned Chief Justice while disagreeing with the conclusions‑ of the Courts below did not take into consideration the reasons given by the 1st Appellate Court for agreeing with the findings of trial Court to determine whether any misreading was committed by the Courts below in assessment of evidence on record On the contrary, the learned Chief Justice himself undertook re‑assessment and re‑appraisal of the evidence in the case and the conclusions drawn by him on the basis of such reappraisal of evidence were made the basis for discarding the finding of fact recorded by the two Courts below. The fact that the view taken by the learned Chief Justice of the evidence in the case is more persuasive, reasonable or convincing could not be a valid ground for interference with the concurrent finding of fact recorded by the Courts below. We have ourselves examined the reasoning of the two Courts below in support of their conclusion and were unable to find any misreading, non‑reading or perverse appreciation of evidence by them. The fact that another view of evidence is possible cannot be a ground for interfering with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction.

8. The learned Chief Justice rejected the revenue receipts produced by the appellant, which were taken into consideration by the two Courts below on the ground that these receipts do not contain the area or Khasra number of the land. It was also observed by the learned Chief Justice in this behalf that plaintiff did not dispute that he is the recorded owner of some other piece of land in Mouza Lavinda and therefore, it was necessary to connect the revenue receipts with the suit land. The above conclusion of the learned Chief Justice is based on misreading of evidence of appellant. The appellant in his examination‑in‑chief before the Qazi stated that the revenue receipts pertained to the suit land. In cross‑examination in reply to the question of respondents' counsel, he stated as follows‑‑ It is, therefore, quite clear that the appellant did not admit that he was the owner of any other piece of land in Mouza Lavinda. On the contrary he categorically denied the suggestion. In the circumstances, the inference drawn by the two Courts below that these revenue receipts related to suit land was neither perverse nor based on any misreading of evidence.

9. The learned Chief Justice further observed that appellant and some of his witnesses admitted that potatoes were cultivated on the suit land by Awal Khan and Abdur Rehman, who were examined in the case by the respondents and they supported the claim of ownership put forward by the respondents. Once again the learned Chief Justice misread the evidence on record in arriving at the above conclusion. The appellant in his cross‑examination was no doubt suggested that potatoes were cultivated on the, suit land by Awal Khan and Abdur Rehman but his reply was as follows: ‑

10. The above statement of appellant was wrongly described as an admission of appellant by the learned Chief Justice. Similarly, Abdul Nabi and Muhammad Qasim, who were Bazgars of appellant on the suit land, denied the suggestion of respondents that potatoes were cultivated on the land, which was read as their admission by the learned Chief Justice. The learned Chief Justice also held that the witnesses of appellant were not able to give the exact area and the yearly produce of the suit land, therefore, their statement could not be relied upon. With utmost respect to the learned Chief Justice, this process of reasoning amounted to reappraisal of evidence which was not permissible in the proceeding before him. The learned Chief Justice in determining the validity of the findings of Courts below could only examine whether the reasons given by the Courts below for accepting the evidence of the witnesses were perverse or based on misreading or non‑reading of evidence on record. The reasons given by the Courts below in accepting the evidence of appellant's witnesses did not suffer from any infirmity of the kind which justified interference by the High Court in its revisional jurisdiction

11. The learned counsel for the parties also relied before us on the copies of ' Sanads' produced by them before the trial Court in support of their respective contentions. The original of these ' Sanads' were not on record. We, therefore, direct the parties to file the original ' Sanads' . In compliance of our direction both appellant and respondents have filed the original ' Sanads' . The two documents produced by appellant before us are different from the one produced by him before the trial Court. Since these documents (Sanads) were not produced before the Courts below at any stage of the proceedings, we are not inclined to consider the same at this stage. The evidentiary value of 'Sanad' produced by respondents was considered by Majlis‑e‑Shoora in its judgment dated 10‑9‑1990 as follows:‑‑ The learned Chief Justice in the impugned judgment made no reference to the 'Sanads' produced by respondents in the case. However, the 'Sanad' produced by appellant was considered but it was found of no assistance to the case of appellant. Therefore, all the Courts below found the 'Sanads' produced by the parties in support of their respective claim of no evidentiary value. The tease of the parties, therefore, was decided on the basis of other evidence in the case. The preponderance of evidence in the case fully supported the claim of plaintiff/appellant. The Courts below therefore, while decreeing the suit of appellant on the basis of evidence on record, neither committed any misreading of evidence nor they omitted from consideration any material piece of evidence on record nor the appreciation of evidence by them could be described as `perverse so as to warrant interference by the High Court under section 115, C. P. C.

12. As a result of above discussion, the appeal is allowed, the impugned judgment and decree of High Court is set aside and that of trial Court is restored. The parties will bear their respective costs.

13. The original 'Sanads' produced by the parties before this Court will be returned to them by the office. A. A./A‑1449/S Appeal accepted.