2007 PLP 507 (CLC)

IJAZ-UL-HASSAN KHAN, J.

Shortly narrated the facts, leading to the filing of the present civil revision are, that Siranjam, plaintiff, instituted Suit (No.40/1 of 2003), against Aqal Din and others, defendants, for a declaration to the effect that plaintiff had become owner of suit-land, described in the plaint, by prescription i.e. mortgagee in possession for more than 60 years and no subsisting mortgage exists and the entries in the Revenue Record, contrary to it, were illegal, void and ineffective on the rights of the plaintiff. The defendants appeared in Court, submitted written statement and contested the suit on all grounds, legal as well as factual. They also filed Suit (No.327/1) against petitioner, for possession by redemption of suit-land. Both the suits were consolidated by learned Civil Judge, Karak. In view of divergent pleadings of the parties, following issues were framed:-- (1) Whether plaintiff has no cause of action? (2) Whether the defendants/plaintiff has got cause of action? (3) Whether both the suits are competent in its present form? (4) Whether both the suits are within time? (5) Whether the Court has got jurisdiction to entertain the present suits? (6) Whether plaintiffs Aqal Din etc.; are entitled for the decree of redemption as prayed for? (7) Whether defendants Siranjam is entitled for the decree of prescription as prayed for? (8) Relief.

2. At the end of the trial, on evaluating evidence of the parties and on the analysis of the legal position, learned trial Judge, by his judgment and decree dated 23-9-2003, dismissed suit of the petitioner-plaintiff and decreed suit of Aqal Din and others, respondents, for possession by redemption of suit-land on payment of Rs.1218. An appeal was filed by the petitioner before learned District Judge, Karak, but the same also could not earn any success for the petitioner and was dismissed by judgment, dated 10-2-2005, giving rise to filing of this civil revision.

3. Learned counsel for the petitioner vehemently contended that both the Courts below have not appreciated the controversy in its true perspective and have illegally dismissed suit of the petitioner. The learned counsel maintained that sufficient material was available on the file to substantiate the claim of the petitioner and prove that petitioner-was mortgagee in possession of suit-land for more than 60 years and had become its owner by prescription, which was overlooked and ignored without any justifiable reason. The learned counsel placed reliance on Zarif Khan and others v. Muhammad and others PLD 1983 Pesh. 58, Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others PLD 1991 SC 524, Kata Mir and others v. Mst. Sho Begum and others 2003 SCMR 589 and Ismail and 22 others v. Rehmat Ali and 15 others 1993 SCMR 92.

4. Contrarily, learned counsel for the respondents, refuted the arguments of learned counsel for the petitioner and supported the impugned judgments maintaining that the same are based on correct appraisal of the evidence and there is no infirmity in the impugned judgment, which could justify interference by this Court while exercising revisional jurisdiction. To augment the contentions, he placed reliance on Samar Gul v. Central Government and others PLD 1986 SC 35 and Faqir Gul and others v. Abdur Rehman and others 1999 CLC 346.

5. It is established principle of civil law that the plaintiff has to prove his case from his own evidence and cannot benefit from witnesses in the defendants' case. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Upon the examination of the impugned judgments, I find that the petitioner has not been able to prove from the cogent and independent evidence his claim. The trial Court as well as Appellate Court adverted to every aspect of the case rightly decided the issues agitated and rendered reasoned judgments which are not open to exception. Both the Courts below have given exhaustive judgments after due appraisal of evidence on the file and after discussing all the pros and cons of the case. There appears to be no legal defect in their judgments which are in consonance with the evidence on the file. The conclusion of fact arrived concurrently by both the lower Courts is not open to challenge in civil revision, particularly when no specific misreading or non-reading of evidence has been pointed out. Needless to emphasize that the scope of section 115, C.P.C. is limited and as such, this Court cannot interfere in its revisional jurisdiction with the concurrent findings on a question of fact, rendered by the two Courts below unless it finds misreading and non-reading of evidence therein. In the instant case, it is discernible from the record that suit-land was mortgaged with a non-muslim, namely, Khan Chand, on behalf of predecessor of Faqar Din and others and out of the total mortgaged property, share to the extent of 1/2 and later on 1/6 share was redeemed, vide Mutation No.11846, dated 24-2-1932, Mutation No.11869 dated 26-2-1932 and Mutation No.11984, dated 5-3-1933, whereas the remaining property to the extent of 1/3 share, still stood mortgaged with Khan Chand mortgagee at the time of partition of Sub-Continent. The land in question was subsequently transferred in the name of Central Government and later on sale of mortgagee rights were transferred to Siranjam Khan through auction. Both the Courts have rightly resolved the controversy involved on the basis of the evidence on record and I see no good reason to differ and unsettle the concurrent findings of fact, recorded by the Courts of competent jurisdiction. Resultantly, finding no merit in this civil revision, I dismiss the same, with no order as to costs. H.B.T./15/P Revision dismissed.