2007 PLP 1723 (YLR)

IJAZ-UL-HASSAN KHAN, J.

Niaz War Jan plaintiff, brought suit on 26-11-2000 in the Court of Senior Civil Judge, Karak against Gul Nawaz defendant, for possession of suit-land claimed to have been found in possession of the defendant in demarcation proceedings vide decision dated 22-8-2000 of Collector Karak. It was averred in the plaint that in view of an application moved by the plaintiff before the Collector Karak demarcation proceedings in respect of land in suit were carried out and suit-land was found to have been encroached upon by the defendant. The defendant was asked time and again to acknowledge the title of the petitioner and surrender the encroached land, but he declined, which necessitated the filing of suit.

2. The suit was resisted on all grounds, legal as well as factual and claim of the plaintiff was denied. The parties were put to trial on the following issues:- (1) Whether the plaintiff has got a cause of action? (2) Whether the suit is incompetent in its present form? (3) Whether the suit is bad for non-joinder and misjoinder of parties? (4) Whether the plaintiff is estopped to sue due to his own conduct? (5) Whether the plaintiff is entitled to the decree as prayed for? (6) Relief.

3. At the conclusion of trial, learned Civil Judge, Karak, seized of the matter, upon consideration of the material placed before him, dismissed the suit, vide judgment and decree dated 17-6-2004. An appeal was preferred thereagainst, which did not succeed. The same was dismissed as 'non-maintainability', by learned Additional District Judge, Karak, by his judgment dated 12-6-2006, giving rise to the filing of instant civil revision.

4. Appearing on behalf of the petitioner, Mr. Amanullah Khan Khattak, Advocate, vehemently contended that both the Courts below have dealt with the matter in cursory manner without application of independent mind and in total disregard to the material on record, which has resulted in complete failure of justice. Additionally, he urged that the appellate Court has not complied with the provisions of Order XLV, rule 31, of C.P.C. and, as such, the judgment and decree of the appellate Court cannot be allowed to remain intact. To augment the contentions, reliance was placed on Muhammad Sadiq represented by Muhammad Sarwar and others v. Amir Muhammad and others (2006 SCMR 702) and Mahmood Khan v. Ilam Din (2004 CLC 1345 Lahore).

5. Mr. Muhammad Zahir Shah, Advocate, appearing on pre-admission notice, on the other hand, repelled the arguments of learned counsel for the petitioner and supported the impugned judgments and decrees of the Courts below forcefully, maintaining that a concurrent finding of fact recorded by the Courts below cannot be upset by the High Court in exercise of its revisional jurisdiction under 'section 115, C.P.C. unless the. Courts below while recording the finding of fact have either misread the evidence or ignored any material piece of evidence on record or the finding of fact is perverse to the material on record. In this regard reliance was placed on Mst. Ghulam Sughra v. Muhammad Ayub Dar (1989 CLC 2493).

6. It is not denied that suit property is 'Shamilat-e-deh' and respondent Gul Nawaz is one of the co-owners in the 'shamilat'. There is also no dispute so far as the legal proposition is concerned, that a co-sharer in possession of a particular area out of that property is entitled to retain till partition without any interference on the part of other co-sharers and the remedy of the other co-sharers is to go for partition. The parties are co-sharers and it is well-settled that a co-sharer in possession of a joint property is not liable to be ousted therefrom, except on a partition by metes and bounds taking place between the co-sharers Muhammad Muzaffar Khan v. Muhammad Yousaf Khan (PLD 1959 SC 9), Saadullah Khan and 6 others v. Mir Piayo Khan and 14 others (PLD 1970 Peshawar 150) and Isa Khan and 23 others v. Barkatullah and 9 others (PLD 1989 Peshawar

67. Adverting to the objection regarding non-compliance of the provisions of Order XLV, rule 31, C.P.C., learned Court has not been able to advance convincing argument in respect thereof. This objection is repelled. Attending to the last submission regarding non-reading and misreading of evidence on record, it needs no reiteration that, the scope of section 115, C.P.C. is limited and, as such, this Court cannot interfere in its revisional jurisdiction with the concurrent findings on a question of fact rendered by the two Courts below unless it finds misreading and non-reading of evidence therein. Since the learned counsel has not been able to point out any illegality or irregularity in the decisions concurrently arrived at by the forums below, justifying interference of this Court in its revisional jurisdiction, the civil revision fails which is hereby dismissed, with no order as to costs. H.B.T./101/P Revision dismissed.