2013 PLP 727 (YLR)

MUHAMMAD SHAFI SIDDIQUI, J.--I have heard both learned counsel at length. This is a revision application, arising out of the judgment dated 16-3-2009, passed by learned Vth Additional District Judge, Hyderabad, whereby Appeal No.114 of 2008, filed by the applicant, was dismissed. Originally applicant filed an application under section 47, Order XXI, Rule 58 and 102, C.P.C. read with section 151, C.P.C. in execution Applica-tion No.1 of 2003, which execution was filed pursuant to a decree passed in Civil Suit No. 53 of 1984 before the trial Court. The applicant prayed therein that he is in occupation of Plot No.93-A in C.S. No.4512, Ward "G" Hyderabad. The learned Vllth Civil/Family Judge, Hyderabad was pleased to dismiss the said application on the ground that the Civil Appeal No.212 of 2001 with regard to final judgment and decree in Suit No.53 of 1984 reached its finality and thus the original decree and judgment passed by that Court was upheld by appellate Court on the ground that the applicant is hand in gloves of the judgment-debtor/respondent. Aggrieved with this order, the applicant filed an appeal, wherein a detailed and comprehensive judgment touching the facts and law was passed. In the said judgment it was observed by the appellate Court as under:-- "Muhammad Soomar filed suit for declaration, cancellation of documents and injunction against respondents in the year 1984 which was dismissed vide judgment dated 26-11-2001. Muhammad Ramzan being aggrieved with judgment dated 26-11-2001 preferred civil appeal which was allowed on 1-12-2002 by VIth Additional District Judge, Hyderabad and decreed suit filed by Muhammad Ramzan with no order as to costs. Appellant filed execution application, which was allowed and order for issuance of writ of possession was passed. Appellant filed application under section 47, Order XXI, Rule 58-102, C.P.C. read with section 151 CPC, wherein appellant prayed that investigation in the matter be conducted regarding his right in Plot No.93-A in C.S. No.4512, Ward G Hyderabad. He further prayed that order for issuance of writ of possession be recalled. The appellant named above in his application claimed himself to be absolute owner of the plot through sale-deed executed on 5-9-2007 No.2577. Respondent Muhammad Ramzan in his objection has taken plea that the appellant named above moved same application on 11-11-2003 and it was already decided in Suit No.53 of 1984, respondent in his objection submit-ted that appellant not challenged any order in any higher forum and after lapse of three years he moved fresh application on the same facts and grounds. According to him application under section 47, C.P.C. is liable to be dismissed. The respondent filed execution application after allowing his suit and learned counsel for appellant questioned the legality of order. I have carefully perused judgment dated 2-12-2002 and find that my learned Predecessor in issue No.4 observed that: "The City Surveyor had visited the site and he had submitted the report. He has stated in his evidence (Exh.258) that the area of C.S. No.2078/1-2 is 135 Sq. yards, Mst Sakina (defendant No.2) is in possession of 39 Sq. yards of the city survey Number and Wali Muhammad (defendant No.3) is in possession of about 30 square yards. He has not been shaken in the cross-examination. The evidence of appellant and the City Surveyor make it clear that Plots No.93 and 93-A are the part and parcel of City Survey No.2078/1-2 and the sale-deed executed by the HMC with respondents Nos.2 and 3 are illegal and void. I am of this view that the issue No.4 has been rightly answered in affirmative by the Vth Extra Joint Civil Judge, Hyderabad." In light of the observation referred above, I find that appellant named above wrongly filed application under section 47 C.P.C. showing himself to be owner of the plot belonging to the decree holder, Taluka Municipal Officer in pursuance of the decree passed in Civil Appeal No.212 of 2001, further Taluka Municipal Officer, has also cancelled the entries and sale-deed against Abdul Wahab. Similarly, in pursuance of the said judgment and the decree, the City Mukhtiarkar Hyderabad has also cancelled the entries of the alleged Plot No.93, CS 4512, Ward G Hyderabad. The report of City Surveyor shows Abdul Wahab is in possession of portion admeasuring 39 square yards, out of the total area of Plot No.G/2078/1-2, situated at Allah Chand Goth, Hyderabad. Appellant in his appeal failed to point out any good ground to restart proceedings of suit and hold inquiry in the matter. In the circumstances and facts referred above, I am of the view that learned trial Court while dismissing application under section 47, C.P.C. not committed any illegality or irregularity, on the contrary, present appeal has no merits and I hereby maintained the order dated 6-9-2008." Since it is also admitted by learned counsel for the applicant that the purported sale-deed executed between the applicant and one Mst Rabia Begum was cancelled and even the entries before the revenue record stood cancelled, however, no action pursuant to such cancellation has been taken by the applicant. It is also clarified that C.P. No.D-333 of 2007 was dismissed by honourable Division Bench of this Court by observing that the declaration, which was sought by Mst Sakina, the petitioner of that petition, cannot be granted in writ jurisdiction. In Appeal No.212 of 2003 it was also clarified that the entries in the name of Abdul Wahab, who is the vendee in sale-deed dated 30th August, 2002, also stood cancelled, from whom the applicant in this revision application claims. Thus, it is concluded that the right, if any, of the applicant stood settled in terms of the decision of the appeal referred above. It is also an admitted position that either Abdul Wahab or any of the successors has not challenged such cancellation of sale-deed as well as the entries before the concerned revenue authorities, which are the concurrent findings of the two Courts below. It was not for the trial Court or appellate Court to reverse their findings on the ground that the entries in revenue record and sale-deed were wrongly cancelled as the scope of suit is not open for such relief. I, while exercising revisional jurisdiction cannot interfere with the observations of the concurrent findings of facts and law, as no material irregularity or illegality and jurisdictional defect have been pointed out by the applicant. In view of above, this revision application has no merits and is accordingly dismissed along with listed application. KMZ/A-108/K Petition dismissed.