P L D 1997 Quetta 99 (PLP)

The respondents contested the suit by filing written statement. The suit was contested on legal as well as on merit. On the pleadings of the parties learned Qazi framed the following issues:

Thereafter both the parties were directed to adduce evidence in support v of their respective claims. Petitioners produced 4 witnesses and Abdul Manaf got his statement recorded as Attorney for the petitioners. The respondents in rebuttal produced 1 witness and one Fateh Khan got himself examined as Attorney for the respondents. After hearing the parties and appraisement of evidence learned trial Court dismissed the suit vide judgment/decree dated 26-12-1994. Being aggrieved of aforestated judgment/decree an appeal was preferred before Majlis-e-Shoora, Loralai which also met the same fate on 19-3-1995. Against both the judgments/decrees the present petition has been filed. I have heard Mr. Basharatullah learned counsel appearing for the petitioners whereas the respondents were represented by Mr. Muhammad Aslam Chishti, Advocate. Mr. Basharatullah, Advocate vehemently contended that the learned trial Court has erred while holding that the suit was barred under section 42 of Specific Relief Act, as the petitioners have not sought the relief of possession. He referred the prayer clause of the plaint where the petitioners claimed the possession also. The Appellate Court also erred by upholding the finding of the trial Court. He further argued that no fair opportunity was given to the petitioners for producing evidence. As the petitioners submitted an application before the trial Court for summoning the representative of the record-room alongwith file of the Case No.34/Z, decided on 11-2-1903. A specific plea was taken in the Memo. of Appeal and this point was agitated before learned Majlis-e-Shoora but the Appellate Court has failed to take into consideration this aspect of the case. He next contended that the trial Court framed issues not in accordance with law whereby the actual controversy could be resolved. He next contended that both the Courts below had fallen in error that the suit was barred by time as the time reckons when the cause of action accrues to them. Since the cause of action accrued to them in the year 1990-91, therefore, the suit was filed within time. Lastly he requested that either the suit be decreed after setting aside both the judgments or the same be remanded to the trial Cpurt to decide the matter in accordance with law. Mr. Muhammad Aslam Chishti, Advocate emphatically opposed the petition on the ground that both the Courts below have passed judgments after elaborately discussing the evidence brought on record. He further argued that both the Courts below rightly held that the suit was hit under section 42 of Specific Relief Act as in the title of the plaint the relief of possession was not sought. He requested that it has not been declared that when the cause of action has been accrued to the petitioners. The Issue No.5 was properly decided by both the Courts below while holding that the petitioners failed to prove that who was party in the decision made in year 1903. He argued that the issues were framed by the Court with assistance 6f the party had there been any illegality. The counsel for the petitioners should have raised objections in this regard, at the relevant time. He lastly argued that there are concurrent findings of fact arrived at by two Courts below which cannot be disturbed by this Court in exercise of Revisional Jurisdiction. I have considered the arguments put forth by both the learned counsel appearing for parties and perused record of the case and gone through the judgments impugned herein. Mainly the petitioners have claimed that a decree be passed in accordance with the order passed in Case No.34-Z of 1903 as according to them the area was divided and the Lehar Salaba was agreed to be line of demarcation. The plaintiff have neither produced the order nor it was proved. The petitioners had shown their ignorance that who was party to that decision. The petitioners neither disclosed in the plaint nor in the evidence that when the cause of action had accrued to them. It was the duty of the petitioners to have disclosed the date when the cause of action had accrued to them so that it could be determined whether the suit was within time ?. The petitioners in plaint stated that after the death of father of respondent No.4 alongwith respondents Nos.2 and 3 occupied the land and constructed the houses and Bandat. Apparently the suit was hopelessly barred by time as according to the statement of plaintiffs' witnesses they have planted, trees. In persuance of the judgment of Majlis-e-Shoora that there were some reports of Tehsildar and Patwari that the respondents are in possession of the land for the last more than 20 years. The question of limitation is mixed question of facts and law therefore, on this score as well both the questions are not sustainable. Though this is the duty of the Court to frame proper issue so that the real controversy between the parties may be resolved. But the issues are always framed by the Court with the assistance of both the parties. The learned counsel for the petitioners cannot raise such plea at this belated state. I have gone through the judgments of both the Courts below. Both the Courts have discussed each and every issue and have given findings. The entire evidence produced by both the parties, and points agitated during arguments have exhaustively been discussed, therefore, the concurrent findings of facts arrived at by Courts below cannot be interfered with by this Court in exercise of Revisional Jurisdiction. Respondents' plea were that they were not party to the decision made in 1903, therefore, they cannot be bound down by a decision in which they were not party. The respondents failed to prove that who were parties in that proceedings and decision therefore, the respondent cannot be bound down by an arbitration award wherein even they were not party. Besides; the learned counsel for the petitioners could not point out any jurisdictional defect or any material irregularity warranting interference by this Court. My this view finds support from the judgment reported in 1994 SCMR page 1778. Relevant observation therefrom reads 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 his 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. " In view of above discussion the petition has no force which is accordingly dismissed. However, the observation/findings contained in judgment/decree dated 26-12-1994 passed by Qazi Zhob Sherani namely "it is directed that towards South from Shingan Khora and towards North from Gadam Khora, possession and ownership are of Aba Khail tribe, are set aside. A.A./606/Q Revision dismissed.