2004 PLP 100 (YLR)

2. Precisely narrated the facts are that Mst. Bibi Ainul Qamar, wife of Shamsher, plaintiff, belonging to royal family of 'Koro Ayoon', District Chitral, filed suit on 12‑9‑1994 against Faqir son of Noor Abad Khan, defendant in the Court of Senior Civil Judge, Chitral, claiming a declaration to the effect that she was exclusive owner of suit‑house detailed in the plaint; that defendant had no concern with it and that defendant be restrained to interfere in her ownership rights. It was averred in the plaint that suit‑house fell to the share of the plaintiff as a result of family partition through 'Mizan‑e‑Sharia', Chitral dated 2‑10‑1983; that defendant remained in occupation of suit‑house till 1997 in lieu of services rendered to the plaintiff and that thereafter the defendant denied the title of the plaintiff and asserted his own, which obliged the plaintiff to file suit for declaration and possession.

3. The defendant in his written statement denied claim of the plaintiff and pleaded that suit was filed on behalf of the plaintiff with collusion of Baba Khan, brother of the defendant. The learned trial Court formulated as many as 11 issues. After recording evidence of the parties in support of their respective contentions, the learned trial Judge by his judgment and decree dated 7‑7‑1999 decreed the suit holding that plaintiff is owner of suit‑house, having inherited the same from her father Habibur Rehman and defendant was inducted in it in recognition of his services rendered to the plaintiff and that defendant has not succeeded to prove his ownership in respect of it. An appeal was preferred thereagainst which was dismissed vide judgment and decree dated 21‑9‑2000.

4. Mr. Fida Gul Khan, Advocate the petitioner strenuously contended that the impugned judgment passed by learned District and Sessions Judge, Chitral, besides being outside the scope of pleadings of the parties is a result of non‑reading, misreading and non‑application of judicial mind and the same cannot be construed to be a judgment in the eye of law. He maintained that the learned Appellate Court has acted in a mechanical manner and evidence on record has not been appraised in right direction. The learned counsel reiterated that the learned trial Judge proceeded on wrong premises to place implicit reliance on the agreement/partition deed dated 2‑10‑1983 and make the same basis of his judgment and decree and that the learned Appellate Court had no justification to affirm. conclusion drawn therein. The learned counsel also submitted that affidavit sworn by Baba Khan, brother of the petitioner, in favour of the respondent, was the result of collusion and same deserved no credence. The plea of limitation was also raised. by the learned counsel in the last limb of his arguments.

5. As against this, Mr. Waris Khan, Advocate learned counsel for the 'respondent, supported the impugned judgment and decree, and asserted that learned counsel for the petitioner has not been able to point out any specific non -reading or misreading of evidence or misapplication of law or procedure which might render the judgment of the Appellate Court as unlawful or infirm. He maintained that there is no substance in this revision petition which merits dismissal. The learned counsel also contended that the concurrent findings of fact arrived at by the two Courts below are result of a correct appreciation of evidence recorded and hardly require interference of this Court. He placed reliance on Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139.

6. Having heard the arguments of learned counsel for the parties with reference to the material on file, I find that sufficient evidence was brought on the record to substantiate the plaintiff's claim in respect of suit house and there was, nothing in rebuttal. It stands established from the evidence that the plaintiff- respondent acquired the suit‑house through inheritance on the basis of partition deed dated 2‑10‑1983 and defendant‑petitioner had no interest in it. It is not denied that the oral evidence cannot be given preference over documentary evidence. If a party controverts it then a very strong and exceptional: evidence is required to rebut it which lacking in this case. Learned counsel for the petitioner has not been able to show that important and vital aspects of the case have been disregarded and the material evidence having bearing thereon has been .put at shelf and consequently, the Courts below have fallen into error of glaring non‑reading of evidence resulting ire miscarriage 'of justice. The concurrent 'findings of fact arrived At‑by the two Courts below are based on' proper appreciation of evidence and no error of law has teen 'committed.' In arriving to this conclusion, I am fortified 'by the following by the judgment:-- (1) Muhammad Bakhsh and 4 others v. Province of Punjab 1994 SCMR 1836; (2) Fida Muhammad v. Pir Muhammad Khan PLD 1985, SC 341; (3) Malik Raiaz Ahmad and others v. Mian Inayatultah and others 1992 SCMR 1498; (4) Mst. Akhtar Begum v. Mian Aziz and others 1985 SCMR 1617;. (5) Muhammad Luqman v. Bashir Ahmad PLD 1994 Karachi 492:

7. It may be recalled here that plea of limitation has been raised in memo. of appeal but has not been pressed during the course of arguments.

8. In the result and for the foregoing reasons, finding no substance in this revision petition I dismiss the same with no order as to costs. M.B.A./920/P Petition dismissed.