1978 PLP 312 (SCMR)

S. Jamil Hussain Rizvi, Senior Advocate with Talib H. Rizvi and S. .Ali Imam Naqvi, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing : 29th March 1978. QAISAR KHAN, J.‑Some land situated in village Rangi of Kalat Division belongs to Abdul Qadir and others. Rahim Khan of village Rangi claims to be in possession of the land as Maurusi Bazgar (permanent tenant). On the other hand Ali Jan resident of village Alamu of Tehsil Quetta claims to be Maurusi Bazgar of the land in possession of it. In 1974 Rahim Khan instituted a suit against Ali Jan for a declaration to the effect that he was the owner of the aforesaid land and for a permanent injunction restraining the defendant from interfering with its possession. The Qazi of Sarawan at Mastung who tried the suit by his judgment dated the 13th of February 1975 held that the plaintiff was the Maurusi Bazgar and that the defendant had no right to interfere with his possession. He therefore decreed the suit. Ali Jan defendant went up in appeal before the Majlis‑e‑Shoora and the learned Judges of the Majlis‑e‑Shoora by their judgment dated the 23rd of September 1975 held that Ali Jan defendant was the Maurusi Bazgar and that the plaintiff' was not at in possession of the land. They therefore accepted the appeal, judgment and decree of the Qazi and dismissed the suit. The sons of Rahim Khan plaintiff who to the meantime had died filed a second appeal in the High Court at Quetta against the judgment and decree of the Majlis‑e‑Shoora and a learned Single Judge of the High Court by his order dated the 15th of November 1977 accepted the appeal, set aside the judgment and decree of the Majlis‑e‑Shoora and restored those of the Qazi. Ali Jan the defendant has thus filed this petition for special leave to appeal against the aforesaid order of the learned Single Judge. After hearing Mr. Jamil Hussain Rizvi, learned Senior Advocate for the petitioner and going through the various' judgments we have come to the conclusion that there is no merit in this petition, The assertion of the learned counsel that the learned Single Judge only relied upon the statement of Abdul nadir D. W. without even looking at the rest of the evidence is not correct. There is no doubt that the learned Judge has not in so many words discussed the whole of the evidence but a perusal of the whole of the judgment clearly shows that he had read the whole evidence and had given due consideration to it but that he placed reliance on the statement of Abdul Qadir who was one of the owners of the land and who had been produced by the defendant. The learned Qazi who had the statement of all the witnesses too had relied on the witnesses the plaintiff and had not relied upon the witnesses of the above it cannot be said that the finding by the learned Judge Though not specifically discussed the evidence of each witness but it appears that he did go into the evidence for weighing it and came to the conclusion that the statement of Abdul Qadir was worth reliance. It, cannot therefore be said that the finding arrived at by him was not based on the appreciation of evidence on file. Learned counsel for the petitioner further contended that the civil Court had no jurisdiction in the matter as the question as to who was the Maurusi tenant lay within the jurisdiction of the Revenue Authorities. Form this he placed reliance on section 172 of the Land Revenue Act but since this ground was neither taken before the Qazi nor before the Majlis‑e‑Shoora nor even in the High Court we do not think it proper to take it into considera tion at this stage. The learned counsel further contended that the Majlis‑e -Shoora had dismissed the suit on the ground that it was incompetent as the plaintiff was not in possession and that the learned Judge in the High Court has not at all dealt with this aspect of the case. There is no force in this contention as well for the learned Single Judge has definitely held that the plaintiff was in possession of the land and under the circumstances the suit could not be incompetent on the ground that possession had not been claimed. Finding no substance in the petition we therefore dismiss it. Petition dismissed.