2000 SCMR 957 (PLP)

CH. MUHAMMAD ARIF, J.

Leave to appeal is sought by the petitioners against judgment, dated 7-7-1999 passed by a learned Judge in Chambers of the Lahore High Court, Lahore whereby respondents' Civil Revision No.1841-D of 1984 was allowed and their suit decreed with the following observations: "

14. The examination of the documentary and oral evidence adduced by the parties does show that Bhola vendee had acquired an interest in the suit property prior to the sale-deed, dated 4-11-1978, as a lessee under Pattanama Exh.D.2 and not as tenant pursuant to any statutory provision. In the circumstances the learned lower Appellate Court as indeed the Civil Court were in error in misreading the documentary evidence and ignoring the testimony of the defendant's own witnesses which went . against the stance adopted by the defendants in his written statement.

15. In view of the above discussion, it is evident that the learned lower Appellate Court misread the relevant documentary evidence and ignored relevant portions of the oral evidence while arriving at the conclusion that the vendee was in possession of the suit land as a tenant. I, therefore, hold that the lower Appellate Court acted in the exercise of its jurisdiction with material irregularity. As a result, this revision petition is accepted and the suit of the petitioner/plaintiff is decreed. In the circumstances of the case there will be no order as to costs."

2. Mr. Ch. Sardar Ali, learned Advocate Supreme Court appearing in support of this petition, was critical of the impugned judgment with the arguments that: (1) the petitioners predecessor-in-interest/vendee was inducted as tenant on 'Hissa Batai' by the vendor/owner through 'Patta nama' dated 21-6-1976 (Exh.2), which was held as good by both, (a) trial Court and .(b) first appellate forum with the result that this finding of fact could not be reversed by the High Court; (2) the onus to prove Issue No. 1, relating to superior right of pre-emption, was on the predecessor-in-interest of the respondent which he miserably failed to discharge, and (3) the learned Judge in Chambers failed to give weight to the statement of the defence witnesses deposing that the vendee was a tenant without being questioned against it by the plaintiff to disprove this fact but this aspect was not noticed by the High Court.

3. Mr. Ch. Khurshid Ahmed, learned Advocate Supreme Court appearing on behalf of the respondents/caveators, has controverted the stand taken on behalf of the petitioners with the submission that the learned Judge in Chambers had specifically made a mention to the trial Court and the lower Appellate Court being in error in misreading the documentary evidence and ignoring the testimony of the defendants' own witnesses which went against the stance, adopted by the defendants in his written statement.

4. We have considered the arguments addressed at the Bar and have also been taken through the available material by the learned counsel for the parties. The fate of petitioners' case stands sealed when it is noticed that the learned Judge in Chambers duly examined the evidence on record to reach the conclusion that the same does show that Bhola/vendee-predecessor of the petitioners had acquired an interest in the suit property prior to the sale-deed, A dated 4-11-1978, as a lessee under 'Pattanama' Exh.D.2 and not as tenant pursuant to any statutory provisions. The learned Judge in Chambers has not been shown to be in error in observing that: In the circumstances the learned lower Appellate Court as indeed the Civil Court were in error in misreading the documentary evidence and ignoring the testimony of the defendant s own witnesses which went against the stance adopted by the defendants in his written statement. It is evident that the learned lower Appellate Court misread the relevant documentary evidence and ignored relevant portions of the oral evidence while arriving at the conclusion that the vendee was in possession of the suit land as a tenant. (Underlining is for emphasis).

5. It is not the case of the petitioners that the learned Judge in Chambers was not possessed of the jurisdiction under section 115 C.P.C. to reverse the findings of the Courts below if they suffered from misreading and non-reading of material evidence on the record.

6. Resultantly, this petition is dismissed and leave refused. M.B.A./K-7/S Petitioner dismissed.