2012 PLP 1568 (CLC)

SYED SAJJAD HASSAN SHAH, J.

The petitioners through the instant revision petition have questioned the judgment and decree dated 14-3-2012 of the learned Additional District Judge-V, Charsadda, whereby he while dismissing the appeal of the petitioners, allowed the appeal filed by the respondents and set aside the judgment and decree dated 17-10-2011 of the learned trial Court to the extent of partial dismissal of the suit of the respondents.

2. Respondents Nos.1 to 14 had filed a suit for declaration and possession against the petitioners in the Court of the learned Civil Judge, Charsadda, claiming thereby the ownership and the possession of land measuring 25 Kanal, 4 Marla fully detailed in the heading of the plaint. They further claimed that they are occupying the possession of the suit-land as tenants-at-will on payment of rent. However, they have stopped the payment of rent while denying the ownership of the respondents.

3. The petitioners had also filed a suit for declaration and permanent injunction in the same Court against the respondents in respect of the said land claiming that they are owners in possession of the suit-land on the basis of the sale-deed dated 8-9-1964.

4. Both the suits were consolidated and after contest, the suit of the respondents was partially allowed while the suit of the petitioners was dismissed by the learned trial Court. Aggrieved with the said judgments and decrees, both the parties filed appeal in the Court of the learned Additional District Judge, Charsadda, who while dismissing the appeal of the petitioners, allowed the appeal filed by the respondents and set aside the judgment and decree dated 17-10-2011 of the learned trial Court to the extent of partial dismissal of the suit of the respondents, hence this revision petition.

5. It was argued by the learned counsel for the petitioners that the learned Courts below could not appreciate the fact that the petitioners are owners in possession of the suit property on the basis of sale-deed dated 8-9-1964 despite the fact that the sale-deed dated 8-9-1964 is 30 years old and presumption of correctness is attached to it. The learned counsel next contended that the Courts below while disbelieving the statement of DW-1, who produced the register of stamp- vendor, have erred as it was produced from the proper custody. The learned counsel while further arguing the case submitted that the sale-deed was proved by the petitioners through unimpeachable and convincing evidence and the Courts below without appreciating the evidence in its true perspective have erred in basing their findings thereon.

6. I have gone through the available record carefully and considered the submissions of the learned counsel for the petitioners.

7. It is patent from the record that Mst. Sikandar Jehan Begum was the original owner of the suit-land. The petitioners were recorded, as tenant-at-will, and thus are in possession of the suit-land. There is a chain of mutations and registered deeds in favour of the respondents. The deeds and entries in the Revenue Record in favour of the respondents have been proved through reliable, cogent and convincing evidence. On the contrary, there is an unregistered sale-deed dated 8-9-1964 in favour of the petitioners but it has neither been converted into a registered deed nor any mutation has been attested thereof in favour of the petitioners. Though the petitioners placed reliance on certain title deeds to establish their ownership but have failed to prove them in accordance with the requirements of law and as such they cannot be said to have discharged the burden of proof lying on their shoulders under the law. Section 50 of the Registration Act, 1908, provides that every document of the kinds mentioned in clauses (a), (b), (c) and (d) of section 17 subsection (1) and every document registrable under section 18, in so far such document, effects immovable property or acknowledges the receipt or payment of any consideration in respect of any transaction relating to immovable property shall, if duly registered, take effect as regards the property comprised therein against every unregistered document relating to the same property, provided, that the person in possession of the property under an unregistered document prior in date, would be entitled to the rights under section 53-A of the Transfer of Property Act, 1882 (IV of 1882) if the conditions of that section are fulfilled. When asked, the learned counsel for the petitioners could not refer to any piece of evidence adduced by the petitioners, which was either misread or not read by the learned Courts below. The fact that the purchase of the property in dispute by the petitioners could not be proved through evidence on record as to be false. Similarly the fact that the petitioners are occupying the suit property in their capacity as tenants also remained un substantiated, especially when no trustworthy evidence either oral or documentary was adduced in this behalf.

8. Even otherwise, it is well-settled law that a concurrent finding of fact by two Courts below cannot be disturbed by the High Court in second Civil Appeal much less in exercise of the revisional jurisdiction under section 115, C.P.C., unless the two Courts below while recording the finding of fact have either misread the evidence or have ignored any material piece of evidence on record or the finding of fact recorded by the two Courts below is perverse. The jurisdiction of the High Court to interfere with the concurrent finding of fact in revisional jurisdiction under section 115, C.P.C. is still narrower. The High Court in exercise of its jurisdiction under section 115, C.P.C. can only interfere with the orders of the subordinate Courts on the grounds, that the Court below has assumed jurisdiction which did not vest in it, or has failed to exercise the jurisdiction vested in it by law or that the Court below has acted with material irregularity effecting its jurisdiction in the case. The judgments rendered in the cases of Umar Dad Khan v. Tilla Muhammad Khan (PLD 1970 SC 288), Muhammad Bakhsh v. Muhammad Ali (1984 SCMR 504), Muhammad Zaman v. Zafar Ali Khan (PLD 1986 SC 89) and Abdul Hameed v. Ghulam Muhammad (1987 SCMR 1005) can well be referred in this behalf. Under this jurisdiction the High Court only corrects the jurisdictional errors of subordinate Courts. The fact that the High Court while reappraising the evidence on record reached a conclusion different from those arrived at by the two Courts below, could never be a ground justifying interference with a finding of fact muchless a concurrent finding recorded by the two Courts below on the basis of evidence produced before them, in exercise of its revisional jurisdiction under section 115, C.P.C.

9. When so, I do not think, the learned Courts below have committed any factual, legal or jurisdictional error by giving the impugned findings. This revision petition being without substance is dismissed in limine. MH/248/P Revision dismissed.