1994 PLP 1836 (SCMR)

(b) Civil Procedure Code (V of 1908)‑‑‑‑ ‑‑‑‑S.115‑‑‑Revision‑‑‑Concurrent findings of facts by two Courts below‑‑‑High Court, in the exercise of its revisional jurisdiction could legally set at naught the concurrent finding of facts of two Courts below if it was satisfied that the finding was based on misreading or non‑reading of‑evidence. A.R. Shaukat, Senior Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioners. Nemo for Respondents. Date of hearing: 4th May, 1994. WALI MUHAMMAD KHAN, J.‑‑‑Muhammad Bakhsh and others, petitioners herein, call in question the judgment dated 24‑1‑1993 passed by a learned Single Judge of the Lahore High Court, whereby Revision Petition No.349 of 1992 (preciously R.SA. No. 15/91) filed by Muhammad Ashiq and Allah Dewaya, respondents 2 and 3 herein, was accepted and the judgment and decree of the trial Court as well as of the first appellate Court were set aside and decree passed in favour of Muhammad Ashiq and Allah Dewaya respondents 2 and 3, as prayed for in the plaint against the petitioners. The facts of the case, stated in a nutshell are that Muhammad Ashiq and Allah Dewaya, respondents 2 and 3 herein, filed a suit for declaration claiming ownership of 1,440/21,386 shares in the suit land against Muhammad Bakhsh and others defendants/petitioners. It was averred in the plaint that they were co‑purchasers in the suit land alongwith Muhammad Bakhsh defendant/petitioner No. 1 herein, in various purchases effected through Mutations Nos.564; 576, 593, 575 and 601 but as they were not Khewatdaran the entire land was purchased in the name of Muhammad Bakhsh defendant/petitioner‑1, hereinafter to be referred to as defendant No.2, as Benamidar. It was specifically alleged that they paid proportionate share of sale consideration and were also put into possession of their share of purchased property on the spot by defendant No.2 and are continuously in possession of the same. They approached defendant No.2 for correcting the revenue entries in their favour but he put them off on the ground that a civil suit was pending and that after the decision thereof, necessary change in the Revenue Record would be effected and acknowledged their ownership through a written deed but in spite thereof, he transferred the suit land vide Mutations Nos.601 to 603 in favour of his sons, defendants 3 and 4 and his brothers defendants 5 and 6, which necessitated the filing of the suit. The defendants/petitioners contested the suit and in their written statement denied the allegations made in the plaint in toto. Necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned trial Judge, vide his judgment and decree dated 15‑2‑1989, dismissed the suit of the plaintiffs/respondents. They filed appeal before the learned Additional District Judge, Multan which too, was dismissed vide judgment and decree dated 29‑4‑1991, however, their revision petition before the High Court succeeded and hence the instant petition for leave to appeal by the defendants/petitioners. We have heard Mr. A.R. Shaukat, Senior Advocate, for the petitioners, and have perused the record of the case. The learned counsel for the petitioners strenuously argued that the trial Court as well as the first appellate Court had concurrently held that the plaintiffs/respondents 2 and 3 had not established their ownership of the suit land and the alleged Benami purchase in the name of defendant No.2 and there was no material on the record to justify interference by the High Court in the concurrent finding of facts by the two Courts below. He contended that Exh.P‑14 Panchait Nama could not be taken into consideration by the High Court as neither it can be termed a decision by the Panchait nor an agreement by the parties, moreso when defendant No.2 had only admitted the holding of a Panchiat but not a decision by them and that the learned High Court wrongly termed this document as an admission on behalf of defendant No.2. It was added by him that the possession of respondents 2 and 3 over suit land was that of tenants who were lawfully dispossessed from it on 12‑6‑1985. He lastly submitted that even if the plaintiffs/respondents had been proved to be the real purchasers and defendant No.2 a Benamidar still the transfer made by him in favour of the other defendants/petitioners had to be legally protected. We have anxiously considered the arguments advanced by the learned counsel for the petitioner. No doubt, the trial Court as well as the appellate Court had not accepted the version of the plaintiffs/respondents 2 and 3 and dismissed their claim of ownership but the learned High Court in the exercise of its revisional jurisdiction could legally set at naught the concurrent finding of facts of two Courts below if it was satisfied that the finding was based on misreading or non‑reading of evidence. The learned High Court has, through the well‑reasoned impugned judgment, arrived at the conclusion that both the Courts below had ignored important documents. In support of their claim the plaintiffs/respondents 2 and 3 produced Ghulam Muhammad son of Muhammad Bakhsh who is the maternal‑uncle and father‑in‑law of Muhammad Bakhsh defendant No.2 and Ahmed Bakhsh defendant No.5, who deposed that the plaintiffs had purchased the suit land in the year 1956‑57 in the name of Muhammad Bakhsh defendant No.2 and are in possession thereof since its purchase and they paid price of the same. Khurshid Ahmed P.W.2 deposed that a document was written in 1975 witnessed by him and Lai Khan and Atta Muhammad which was signed by Muhammad Bakhsh and Ahmed Bakhsh defendants 2 and 5 as well, agreeing that they will transfer the suit land in favour of the plaintiffs/respondents 2 and 3 after the decision of the declaratory suit pending at that time. To the same effect is the statement of Lal son of Ghulam Muhammad P.W. On the other hand, the defendants produced Muhammad Afzal D.W.1 who deposed that the possession of the plaintiffs over the suit land that of a tenant and they have been dispossessed there from since 1985. Muhammad Bakhsh defendant No.2 appeared as his own witness and denied the claim of the plaintiffs and any compromise entered into with the plaintiffs during the pendency of the suit. However, he admitted that there was Panchiat but they could not deliver any decision. He admitted the possession of the plaintiffs but as tenants. Under cross‑examination he conceded his relationship with the plaintiffs and unequivocally admitted his signature on the Panchaitnama Exh. P‑14 and appointment of Ahmed Khan, Malik, Faiz Bakhsh and Sufi Ramzan as arbitrators but denied any decision by them. He also admitted the signature of his brother Ahmed Bakhsh on the Panchaitnama. The learned trial Court considered the oral evidence not sufficient to establish Benami nature of the transaction, inasmuch as, no consideration was paid in their presence. The documentary evidence in the shape of was ignored because it was a photo copy and no 12 permission for secondary evidence obtained. The Panchaitnama Exh. P‑14 and Salsi Nama Mark `B' were not relied upon because according to the trial Court appointment of the arbitrator was not legal. The learned High Court, on the contrary, was influenced by the admissions made by defendants 2 and 5 whereby they admitted their relationship with the plaintiff, the possession of the plaintiffs over the suit land from 1956 to 1988, the execution of the document described as Panchaitnama P‑14 and their signature thereon as also the appointment of three persons as arbitrators and in the light of these admissions the High Court rightly concluded that the two Courts below had failed to appreciate the documents P‑14 and Mark `B' in their true perspective which amounts to non‑reading and misreading of evidence. We have also perused the aforementioned documents and agree with the finding of the learned High Court that these documents supported the version of the plaintiffs/respondents 2 and 3 and were wrongly kept out of consideration by the trial Court as well as the appellate Court. We do not find any legal flaw in the impugned judgment of the High Court and are not persuaded to grant leave refused. Resultantly, the instant petition is dismissed and leave to appeal refused. M.B.A./M‑2118/S Petition dismissed.