1995 PLP 618 (CLC)

(7) Whether the plaintiff is entitled to the decree for declaration as prayed for? (8) Whether the plaintiff is entitled to the decree for possession in the alternative? (9) Relief.

4. After recording the evidence of the parties, which they wished to produce, and keeping in view the statement of respondent No.l (defendant No.l) Muhammad Aslam Khan dated 17‑5‑1990 the learned Senior Civil Judge, Kohistan at Battagram, by his judgment and decree dated 4‑7‑1991 (in Civil Suit No. 117/1 of 1991) granted a decree to the petitioner (plaintiff) as prayed for against the respondent No.l (defendant No.l). to the extent of his share, while the suit of the petitioner (plaintiff) against the rest of the respondents (defendants) was dismissed and the parties were left to bear their own costs.

5. The petitioner (plaintiff) not contended with the judgment of the Civil Judge assailed his findings before the learned District Judge, Kohistan at Battagram (Mr. Alamzeb Khan), who after hearing the parties, came to the conclusion that the findings of the learned trial Court did not suffer from any legal or factual infirmity and, therefore, needed no interference. He accordingly dismissed the appeal vide his judgment dated 12‑7‑1994.

6. Hence this Revision Petition has been filed by petitioner (plaintiff) for the redress of his grievance. .

7. I have heard Malik Fazal Hussain, Advocate learned counsel for the petitioner (plaintiff) at length and have also perused the record of the case carefully.

8. It must be stated at the very outset that the learned counsel for the petitioner/plaintiff has failed to convince me that the learned lower Court appears to have‑‑ (1) exercised a jurisdiction not vested in it by law, or (2) failed to exercise a jurisdiction so vested, or (3) acted in the exercise of its jurisdiction illegally or with material irregularity.

9. Both the Courts below have discussed each and every issue, framed in the suit, in detail and have given their findings correctly. Since in the case in hand only a question of fact is involved and both the lower Courts have concurred, in arriving at the same decision, on the basis of evidence produced and have thus committed no illegality or material irregularity and therefore, interference by this Court is not needed.

10. Even on merits the petitioner (plaintiff) has no legs to stand upon. The petitioner, while appearing as his own witness, on 26‑11‑1989, admitted that the receipt which .was produced by him was undated, that the sale transaction took place inside his house, then corrected himself and said that the transaction took place in a mosque where he paid the amount to his father at noon time. He also stated that two persons, namely, Jaffar (P.W.3) and Habibullah (P.W.4) had witnessed the transaction. 10‑A: When Jaffar was examined as a plaintiff's witness he, in his cross -examination, admitted that the deed (Exh. P.W.2/1) was not scribed in his presence and, therefore, he was not in a position to say as to who had scribed the same. He further stated that nobody had read over the said deed to them at the time when they were sitting in the mosque and then Abdul Rauf Khan petitioner (plaintiff) had not paid a single penny to Qalandar Khan (his father) in his presence in the mosque.

11. The other witness who appeared to support the petitioner's (plaintiff's) case was Habibullah. He was examined as P.W.4 on 26‑11‑1989. He too admitted in his cross‑examination that the deed relied upon by the petitioner (plaintiff) was not scribed in his presence. He also admitted that ha did not know as to who had scribed the deed, when and at what time. He stated that neither the respondent nor anybody else was present in the mosque when the deed in question was brought by Abdul Rauf Khan petitioner (plaintiff). He admitted further that the deed was not read over to him and, therefore, he could not say as to what was written in it. He further stated in his cross -examination as under:‑‑ "I cannot say even at the moment that what is written in the said deed."

12. This witness (P.W.4) categorically stated that no amount was paid in his presence and, therefore, he could net give the details of the payment of sale. 13. 1n the circumstances, mentioned above, I am of the considered view that this case is not a fit case in which this Court should exercise its revisional jurisdiction under section 115, C.P.C. The petition does not merit consideration and is rejected in limine. AA./1700/P Revision dismissed.