1998 PLP 1981 (CLC)

This revision petition has been preferred by Farid Khan, the present petitioner, against the decision of the District Judge, Mardan, dated 25‑3‑1997 whereby his appeal filed against the order of the Civil Judge‑II, Mardan, dated 2‑5‑1992, who had granted a decree for possession in favour of the plaintiff respondent, namely, Malik Aman Khan, was dismissed.

2. Brief facts of the case are that Malak Aman Khan brought a suit for possession against Farid Khan in respect of the property which has been detailed in the heading of the plaint measuring 1 Kanal, 6 Marlas and 1 Sarsai situated at Village Garhi Daulatzai Tehsil and District Mardan. The plaintiff‑respondent had alleged in his plaint that his father namely Ghulam Qadir had purchased the suit property from a non‑Muslim namely, Sunath Sing vide a registered sale deed, dated 24‑4‑1946, copy of which is Exh.P.W.l/1 placed on the file. The plaintiff further alleged that after the death of his predecessor‑in‑interest the plaintiff remained in possession of the suit property as its owner but one year prior to the suit, the defendant having no right in the said property, took over the possession of the same forcibly. The plaintiff had claimed improvements over the suit property and since the defendant was reluctant to deliver the possession of the property to him he filed the present suit.

2. The trial Court had taken pains in recording evidence of both the parties and after giving opportunity to the parties to cross‑examine the witnesses, decided the case on merits with no order as to costs.

3. It is important to mention that there had been an earlier round of litigation and this Court had once remanded back the case to the District Judge to decide the case on merits vide judgment of this Court, dated 25‑9‑1994.

4. In the present revision petition the petitioner has assailed the findings of the two Courts below on the ground that the decisions made against him are the result of non‑reading of evidence, incompetence of the suit in its present form, plaintiff‑respondent had no cause of action and that the question of improvements had not been determined by the lower forums.

5. I have heard the learned counsel for the parties and have gone through the record with their assistance.

6. The suit property is situated within the Lal Lakeer of village Garhi Daulatzai and originally it belonged to the predecessor‑in‑interest of the defendant who had sold the same to Sunath Sing who later on sold it in favour of Ghulam Qadir the predecessor‑in‑interest of the present plaintiff, namely, Malak Aman somewhere in the year 1936, copies of these transactions are available on the record as Exh.D.W.I/1 to Exh.D.W.l/6. The aforementioned Exh.D.W.l/1 to Exh.D.W.I/6 were exhibited in evidence before the trial Court. These title documents were more than 30 years old and were produced from a proper custody, therefore, a presumption of truth is attached to them.

7. As is evident from the record, Ghulam Qadir the predecessor‑in‑interest of the plaintiff was a rightful purchaser of the suit property from Sunath Sing etc. and after his death the same property devolved upon his heirs including the plaintiff. The pleadings does not reflect that the share of the cousins of the plaintiff namely, Purdil and Nawab who had sold their share to the non Muslims, had affected the title and share of the present plaintiff. There is no evidence available on record to show that the parties had effected partition amongst themselves during the period in which the plaintiff‑respondent was enjoying the property as its owner eversince 1946.

8. The petitioner has challenged the concurrent findings of the, two Courts below only on the question of facts and not on the question of law.

9. Revisional powers under section 115, C.P.C. are primarily intended for correcting errors made by the subordinate Courts in the exercise of their jurisdiction, the High Court, therefore, only interferes and corrects gross and palpable errors of subordinate Courts so as to prevent gross injustice in non appealable cases. In the instant case, proper opportunity was afforded to both the parties to adduce evidence before the trial Court which they have availed. To my mind both the orders of the subordinate Courts are within their jurisdiction and that they have not acted illegally in breach of any of the provisions of law or have committed any material irregularity, therefore, I am constrained to interfere with the impugned orders of both the lower Courts. The revision petition, therefore, fails and stands dismissed. No order as to costs. H.B.T./156, 155/P Petition dismissed.