2006 PLP 35 (CLC)

IJAZ-UL-HASSAN KHAN, J.

This revision petition under section 115, C.P.C. is directed against concurrent findings of fact recorded by the trial Court in Civil Suit No. 130/1 of 2000 and the Court of appeal in Civil Appeal No.77/13 of 2004, whereby suit for declaration and permanent injunction instituted by petitioners against the respondents was dismissed.

2. The facts, briefly stated are, that Hidayatullah Khan and others, plaintiffs instituted suit on 2-3-2000 in the Court of Senior Civil Judge/Aala Illaqa Qazi, Buder at Daggar, against Ajmal Khan and others, defendants for declaration to the effect that plaintiffs were owners in possession of suit-land (detailed in the plaint), having inherited the same from their forefathers and entries in the Revenue Record were illegal, void and inoperative on the rights of the plaintiffs. The plaintiffs also prayed that defendants be restrained to eject the plaintiffs from suit-land or alienate the same in any manner. By way of alternative relief, possession of suit-land was also sought in case plaintiffs were not found in possession of the same.

3. The suit was resisted by defendants Nos. 1, 2 and 3, on different grounds, like limitation, estoppel and non-availability of cause of action. On the basis of the pleadings of the parties, following issues were framed for trial:--

4. After recording such evidence as the parties wished to adduce, learned trial Judge by his judgment and decree dated 12-6-2002, dismissed the suit, holding that plaintiffs have not been able to prove their ownership and possession over the property in suit. The plaintiffs, feeling aggrieved, filed an appeal before learned District Judge, Buner, which was assigned to learned Additional District Judge for adjudication, who also arrived at the same conclusion, vide judgment and decree, dated 14-10-2004. The aforesaid judgment and decree is under assailance before this Court through the present revision petition.

5. Arguing the case. on behalf of petitioners, Mr. Fida Gul, Advocate, while assailing the impugned judgments and decrees of the Courts below, vehemently submitted that the learned trial Court did not appreciate evidence, both oral and documentary available on file and illegally dismissed suit of the petitioners. The learned Appellate Court also did not peruse the record of the case and dismissed the appeal on the basis of surmises and conjectures. Additionally, he urged that the impugned judgment of the Appellate Court does not substantially comply with the requirements of Order XLI, rule 31, C.P.C. and thus, the impugned judgment is not in accordance with law. In this regard, reliance was placed on Atta Muhammad v. Nasiruddin PLD 1993 Pesh. 127; Province of Punjab through Collector v. Rulia 2000 CLC 15 and Saleem Akhtar v. Nisar Ahmad PLD 2000 Lah. 385.

6. In reply, Mr. Khalil Khan Khalil, Advocate, representing the respondents, in his short submissions argued that the concurrent findings of facts were recorded by both the Courts below which are based on proper appreciation of evidence oral and documentary, produced by the respective parties before the learned trial Court. No case of misreading and non-reading of evidence has been made out, neither any legal infirmity has been pointed out by the learned counsel even during the arguments, nor illegal exercise of jurisdiction nor failure of exercise of jurisdiction by both the Courts below has been attributed. To substantiate the pleas, reliance was placed on Abdul Waheed V. Muhammad Bilal PLD 2005 Pesh. 19; Haji Muhammad Ameen v. Messrs Frontier Ceramics Ltd. Peshawar PLD 2005 Pesh. 69 and Sikandar Ali v. Haji Abdul Karim and others 2005 CLC 1032.

7. The contentions of the learned counsel for the parties have been examined in the light of evidence produced by them. It may be stated at the outset that proof of an oral transaction is on the beneficiary because the negative is not capable of proof. It is well-settled principle of law that the initial burden of proof of a fact is on the party which alleges it. It needs no reiteration that plaintiff cannot be benefited from short-comings of defendant's case. In the instant case, the trial Court has rightly proceeded to hold that plaintiffs have failed to produce sufficient evidence to substantiate their claim. The case of plaintiffs was doubtful and the entire evidence of plaintiffs was self-contradictory and highly discrepant. The Appellate Court had valid reasons to concur with the findings of the trial Court and dismiss the appeal. The mere assertion of the petitioners that they were owner in possession of suit-land by virtue of inheritance and the entries in the Revenue Record, contrary to it, were illegal and void and result of collusion between the respondents and the Revenue officials, without a positive attempt on their part to substantiate the same, is of no consequence. This Court has very limited jurisdiction to reverse the findings of First Appellate Court while exercising powers under section 115, C.P.C. unless and until the same is result of misreading and non-reading of evidence or any violation of the principle laid down by the superior Courts.

8. Adverting to the objection regarding non-compliance of provisions of Order XLI, rule 31, C.P.C., it needs no emphasis that an appellate judgment should state the points arising for determination, its decision thereon and the reasons for its decision. It is necessary for the Appellate Court to record the points for determination, so that it can be determined whether the Court has dealt with all the points. The Appellate Court must state its reasons for the decision. The provisions of Order XLI, rule.31, C.P.C. are mandatory.

9. In the instant case, I find that the Appellate Court has fully attended the controversy involved and stated the points arising for determination and its decision thereon. The impugned judgment is in consonance with the material on record and provisions of Order XLI, C rule 31, C.P.C. are not found to have been violated in this case. The parties were fully alive to the controversy involved and they were given reasonable opportunity to produce evidence in support of their respective contentions.

10. The Courts below have properly appreciated the evidence available on record and I have not been able to find out any misreading/ non-reading of evidence or any material irregularity or any jurisdictional error or defect warranting interference in the concurrent findings of the Court of competent jurisdiction. Abdur Rahim and another v. Mst. Jantay Bibi and others 2000 SCMR 346; Haji Noor Muhammad Y. Abdul Ghani and 2 others 2000 SCMR 329; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC

293. For the aforesaid facts and reasons, no error of law having been pointed out, I find no merit in this revision petition or justification to interfere with the concurrent findings of fact, which do not suffer from any inherent infirmity or legal and jurisdictional error. The revision petition having been found bereft of substance is dismissed, with no order as to costs. H.B.T./545/P?????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.