2000 PLP 773 (YLR)

Instant Civil Revision is directed against the judgment and decree, dated 1-7-1999 passed by the learned Additional District Judge, Gujranwala whereby he dismissed appeal filed against the judgment and decree, dated 4-2-1998 passed by the Civil Judge, Gujranwala.

2. Briefly stated the facts are that plaintiffs/petitioners brought a civil suit on 29-3-1993 for declaration with permanent injunction as a consequential relief contending therein that they are owners in possession of the disputed land fully described in para. No.1 of the plaint. They further contended that a week ago the defendant/respondent No.1 was learnt to be posing himself to be owner of land in dispute on the basis of mutation dated 21-6-1979 whereby defendant/respondent No.1 got the proprietary rights from defendant/respondent NO-2 vide Letter No. 564-ACN/GRW 101/SW/78. They further contended that the said mutation and letter have been declared unlawful in two civil suits filed Muhammad Faiz and Muhammad Hanif etc. against Municipal Corporation Gujranwal which was upheld even by the learned Additional District Judge, Gujranwala. suit was resisted by the defendant/responder alone, as defendant/respondent No.2 was proceeded against ex pane.

3. From the divergent pleadings of the parties the trial Court framed the following issues:

(1) Whether the suit is not maintainable in its present form ? OPD (2) Whether the suit is liable to be dismissed in view of the preliminary objection No.2 ? OPD (3) Whether the suit is time-bane OPD? (4) Whether the suit is valued incorrect, if so, what is the correct valuation of the suit? OPD (5) Whether the defendant No. 1 is it possession of the disputed lands OPD (6) Whether the plaintiffs Nos.1, 2 ant 3 are owners in possession of the sui land respectively ? OPP (7) Relief.

4. In support of their stand, plaintiffs/petitioners examined P.W.1 Muhammad Ashraf as their special attorney and brought on record documents Exh. P.2 to Exh. P.7 and then closed their evidence. As none contested the suit on behalf or defendant/respondent No.1 so evidence was closed and finally the suit was dismissed by the trial Court vide judgment and decree dated 4-2-1998. An appeal filed against the said judgment and decree was dismissed by the learned Additional District Judge, Gujranwala vide judgment and decree, dated 1-7-1999. Hence the civil revision.

5. Preliminary arguments have been heard and record perused.

6. The main contention of the learned counsel for the plaintiffs/petitioners is that regarding this very -property civil suits were filed against defendants/respondents which were decreed on 19-3-1989 and the appeal thereof was dismissed by the learned Additional District Judge, Gujranwala on 31-7-1990, that the stand of defendants/respondents in the said suits was similar as they have taken in the instant suit filed against them, that it was held in the said judgments and decrees that defendants/respondents have not acquired any proprietary rights in the said property, that on the similar analogy the trial Court was bound to hold that land purchased by plaintiffs/petitioners had not been acquired by defendants/respondents as asserted by them and as such they had purchased the land from rightful owners vide sale-deed dated 13-4-1993, that the Courts below have not appreciated the evidence in its true perspective and as such the impugned judgments and decrees suffer from misreading and non-reading of evidence. He, thus, submitted that civil revision be admitted for regular hearing.

7. A narration of the facts reveals that plaintiffs/petitioners claim themselves to be owner of the suit property vide sale-deed, dated 13-4-1993. Their stand is that they have purchased the suit land from Muhammad Inayat son of Ahmad Din and Abdul Rashid son of Piran Ditta. On the other hand stand of defendants/respondents is that suit land was an evacuee property and was transferred to defendant/respondent No. l by defendant/ respondent No.2 vide letter referred above on the basis of which mutation was also sanctioned on 21-6-1979. The onus of proving ownership in respect of suit land was on the plaintiffs/petitioners as is evident from issue No.5. To discharge this onus plaintiffs/petitioners have examined Haji Muhammad Ashraf as P.W.1. He has deposed that suit land was purchased by the plaintiffs/petitioners and a sale deed had been executed in their favour about 1-1/2 years ago. In his cross-examination, he admits that suit land had been allotted to defendant/respondent No.l by the Settlement Commissioner. He further admits that he did not know as to from whom Rashid and Inayat had purchased the, land. He further admits that when land was purchased from Rashid and Inayat, they (plaintiffs/petitioners) were not in possession of the same. The plaintiffs/petitioners have also relied upon the judgments and decrees, dated 19-3-1989 and 31-7-1990 wherein the suit property has been held to have not been acquired by defendant/respondent No.1 and it had rightly been held to have been purchased by Muhammad Hanif and others who were the plaintiffs in the said suits. There is no doubt that according to judgments and decrees, dated 19-3-1989 Exh. P-2 and dated 31-7-1990 Exh. P-4, it has been held that the property purchased by Muhammad Hanif and others had not been transferred to defendant/ respondent No.

1. However, the said judgments being judgments in personam cannot be relied upon by the plaintiffs/ petitioners to prove their own stand. In the instant matter onus was on the plaintiffs/ petitioners to prove their ownership. They claimed to have purchased the property from Rashid and Inayat but there is no document on record to show and prove the entitlement of Rashid and Inayat. In the absence of any such document, it cannot be held with any certainty that suit land ever existed in the name of Rashid and Inayat who are the vendors of the present plaintiffs/petitioners. The stand of defendants/respondent No.1 is that land was allotted to him by defendant/respondent No.2 which fact stands admitted even by P.W.1 in his cross examination. In the Wake of admission of P.1 regarding the allotment of suit land by Settlement Commissioner/defendant No.2 in favour of defendant/respondent No. 1 coupled with absence of any documentary evidence regarding title of so-called vendors Rashid and Inayat, the trial Court has rightly answered issue No. 6 against the plaintiffs/petitioners which findings have been upheld by the learned Additional District Judge, Gujranwala vide judgment and decree, dated 1-7-1999.

8. Be that as it may, section 115 of the Civil Procedure Code applied to cases, involving illegal assumption, non-exercise or irregular exercise of jurisdiction. It cannot be invoked against conclusions of law or fact, which do not, in any way, affect the jurisdiction of this Court, no matter, however, erroneous, wrong or perverse, the decision might be either on a question of fact or law, unless the decision involves a matter of jurisdiction. As erroneous conclusion of law or fact is liable to be correct in appeal, but revision will not be competent on such a ground, unless in arriving at such conclusion, an error of law is manifestly shown to have been committed.

9. Neither any such aspect has been put forth or highlighted, nor is seemingly available, so as, to attract or entail provisions of section 115 of the Civil Procedure Code, which thus, can, neither, come into play nor press into service. Judgments and decrees, now sought to be impeached and set at naught are accordingly, unexceptionable as the same neither appear to suffer from infirmity or arty irregularity, what to speak of material irregularity, nor perversity or arbitrariness.

10. Hence viewed from any angle, revision petition merits dismissal and is, hereby dismissed, with no order as to costs. Q.M.H./M.A.K./A-174/L Revision dismissed