2012 PLP 1627 (MLD)

MUHAMMAD NOOR MESKANZAI, J.

The instant revision petition is directed against the judgments and decrees dated 31st May, 2003 and 22nd July, 2003 respectively passed by Senior Civil Judge, Pishin and Additional District Judge, Pishin, whereby the suit filed by respondents was decreed and appeal filed against the said judgment and decree was dismissed. 2.???????? Brief facts, relevant for the disposal of this revision petition are that the respondents instituted a suit for Declaration and Permanent Injunction against the petitioners. It was averred in the plaint that one Naik Muhammad sold his one room to plaintiffs but his son and defendant No.1 are claiming ownership of said room. It was further averred that the property bearing Khasra No.141, Khata No. 14/16, Measuring 10 rods 35 poles, which is 'Abadi-Deh' of Killi Ghundi and the plaintiffs are residing there. Furthermore, certain other pieces of land which are not covered by walls or houses of plaintiffs, however, the same is in possession of plaintiffs. The respondent No.1 demolished two rooms of his house, a guestroom and a store for raising construction of a new guestroom. 3.???????? The defendant No.1 in order to disturb the plaintiffs, filed an application before AC, Pishin, DC, Pishin as well as lodged report on 17th May, 1999 claiming himself to be the owner of land of 'Abadi-Deh' hence the suit. 4.???????? The defendants/petitioners contested the suit by way of filing written statement, whereby the claim of plaintiffs was repudiated on legal as well as factual grounds. The learned trial Court out of the pleadings of the parties framed allowing issues:-- (a)??????? Whether the suit is competent in view of P/O A, B, C and F of W/S? (b)??????? Whether the suit is maintainable in view of P/O J of written statement? (c)??????? Whether the plaintiffs are owners, hence occupants of Khasra No.141 Abadi Deh, if so, to what extent? (d)??????? Whether the defendants have any right on Abadi Deh, the property in dispute? (e)??????? Whether the plaintiffs are entitled for the relief claimed? (f)???????? Relief? 5.???????? Thereafter the parties were directed to adduce evidence in support of their respective claim. Whereas the respondents/plaintiffs produced four witnesses and got recorded their statements through respondent/plaintiff No.2 as attorney. In rebuttal, the petitioners/ defendants produced five witnesses and got recorded statement of petitioner/defendant No.1 as attorney. 6.???????? On conclusion of trial, the learned trial Court vide judgment and decree dated 30th October, 1999 decreed the suit of respondents/ plaintiffs. Appeal filed by petitioners/defendants against the said judgment and decree before the learned appellate Court was allowed and the matter was remanded to the trial Court. 7.???????? After remand, the learned trial Court again decreed the suit of the respondents/plaintiffs vide judgment and decree dated 31st May, 2003. The petitioners/defendants feeling aggrieved from the said judgment and decree preferred an appeal before the learned District Judge, Pishin, which was later on transferred to the file of Additional District Judge, Pishin. The learned Additional District Judge, Pishin after hearing the parties vide judgment and decree dated 22nd July, 2003 dismissed the appeal, hence this revision petition. 8.???????? The learned counsel for the petitioners argued with great vehemence that both the judgments impugned herein are result of misreading of evidence, mis-appreciation of facts and material available on record. Both the Courts below passed the judgments impugned in violation of Order XX, Rule 5, C.P.C. as well as Order XLI Rule 31, C.P.C. The learned trial Court has not given findings upon issues in accordance with law. Plaintiffs failed to prove their case by producing tangible, trustworthy and confidence inspiring evidence but both the Courts below failed to take note of this important aspect of the case. On the other hand, learned counsel for respondents strenuously opposed the appeal and argued that there are concurrent findings of facts arrived at by two Courts below which normally cannot be disturbed unless it is proved that the same are perverse and result of misreading and non-reading of evidence. Learned counsel stressed that the petitioners failed to point out any illegality or material irregularity in the judgments/decrees impugned and merely by raising general grounds the judgments passed by lower forum cannot be set aside. Learned counsel emphasized that the petitioners were under legal obligation to point out that which portion of the evidence has been misread or non-read, but the petitioners failed to do so, as such the revision petition is not maintainable and liable to be dismissed. 9.???????? I have considered the contentions put forth by the parties' learned counsel and gone through the available record of the case with able assistance of learned counsel for the parties. The perusal of record reveals that the respondents/plaintiffs produced as many as four witnesses besides recording statement of their attorney, all the witnesses supported the claim of respondents. The petitioners failed to point out any illegality in the judgments/decrees impugned nor any irregularity in the proceedings could be shown. The trial Court after proper appraisal of material available on record dealt with the issues and gave its findings with reasons, which are based on evidence. So I am not persuaded with the submission that there is non-compliance of Order XX, Rule 5 of C.P.C. Similarly, the appellate Court took pain by analyzing the evidence produced by parties and discussing the point of determination with reasons. Hence? there? is? substantial? compliance? of? Order? XLI,? Rule 31, C.P.C. As far as the restriction of relief qua respondent No.1 by the trial Court is concerned, suffice to observe that it has caused no prejudice to petitioner, therefore, this plea is of no avail to petitioner. Besides the petitioners were under legal obligation to point out that which portion of the evidence has been misread or non-read, but the petitioners failed to do so, which is a sine qua non for the acceptance of revision petition. It may be observed that there are concurrent findings of facts arrived at by two the Courts below which normally cannot be disturbed, unless, it is proved that the same are result of mis-reading or non-reading of evidence. Reliance is placed on the judgment reported in 1994 SCMR 1778 (Amir Siab and 2 others v. Government of N.-W.F.P. through Home Secretary at Peshawar and 4 others relevant at page 1779), wherein it has been held as under:-- "However, looked at from whatever angle the reality remains that the High Court has declined to interfere with concurrent findings of fact and that too in its revisional jurisdiction. There was no compelling reason in the circumstances of this case to set aside the concurrent findings by two Courts below in the said jurisdiction of the High Court. The appreciation of evidence, it cannot be denied, does not suffer from any infirmity of law or principle. The insistence of learned counsel that the reappraisal of the material by this Court can lead to a different conclusion is by itself no ground for interference by this Court. However, on questioning the learned counsel on this aspect as well, we have not been able to differ with the High Court. The petition is, therefore, dismissed." Before parting with the judgment, it is pertinent to observe that the plaintiffs prayed for a couple of reliefs in the plaint, however, the learned trial Court applying judicial mind restricted/confined the decree to the extent of following relief:-- (i)???????? That the plaintiffs being the residents of village Ghundi and occupants of their respective property/houses which is Abadi Deh falling under Khasra No. 141 khatooni No. 14/16, Mouza Kaza Viala. Tehsil Barshore District Pishin are owners of the same; (ii)??????? That the plaintiff No,1 has a right to construct a boundary wall and four rooms on the land in dispute which was initially covered by old guest room and store and defendants have no right to interfere in the same; and (iii)?????? The Defendants are permanently restrained from any interference in the property in dispute and houses which possession the plaintiffs are enjoying and the property upon which plaintiff No. 1 has raised construction falling under Khasra No. 141 Khatta No. 14/16 in village Ghundi Mouza Kaza Viala. Since rest of the relief could not be granted, therefore, the same were validly refused. For the foregoing reasons, the petition filed by the petitioner is hereby dismissed with no order as to costs. MH/48/Q???????????????????????????????????????????????????????????????????? ??????????????????????? Revision dismissed.