2017 PLP 108 (CLCN)

MUHAMMAD SHERAZ KIANI, J.

Through the above captioned 2nd appeal, the appellant has challenged the legality and validity of the judgment and decree passed by the learned Additional District Judge, Dudyal dated 09.06.2016, whereby, the appeal filed on behalf of the present appellant has been dismissed and the judgment and decree passed by the Civil Judge, Dudyal dated 27.11.2015 has been maintained.

2. Precise facts forming the background of the instant appeal are that Ameer Hussain Shah, plaintiff/appellant, herein, brought a suit for perpetual injunction, against Kazim Hussain Shah and others, before the Court of Civil Judge Dudyal on 03.06.2014. Safder Hussain Shah and others also filed a suit for perpetual injunction, against Ameer Hussain Shah and others, in the same Court, on 02.09.2014. Another suit for declaration and perpetual injunction was also filed by one Shabir Hussain Shah against Safdar Hussain Shah and others, in the same Court on 19.11.2014.

3. All three suits, pertaining to the same land and parties, were consolidated and heard together by the learned trial Court.

4. All suits were contested by the defendants by filing written statements by refuting the claims of the plaintiffs.

5. In light of the pleadings of the parties, the learned trial Court framed issues and heard the parties on legal issues and after hearing the parties, vide judgment and decree dated 27.11.2015, suits filed on behalf of Ameer Hussain Shah and Shabir Hussain Shah were dismissed, however, the suit filed on behalf of Safdar Hussain Shah was fixed for filing the list of witnesses of the parties. Feeling aggrieved from the above judgment and decree, Ameer Hussain Shah, plaintiff/appellant, herein filed an appeal before the Court of Additional District Judge, Dudyal, which also met the same fate and stood struck down vide judgment and decree dated 09.06.2016, hence, the above captioned 2nd appeal before this Court.

6. Ch. Yasir Mehmood, Advocate, the learned counsel for the plaintiff/appellant vehemently contended that the suit land is in the ownership and possession of the plaintiffs and the defendants have no concern with the same. The learned counsel maintained that the trial Court was legally bound to record evidence and thereafter decide the controversy on merits but the trial Court miserably failed to appreciate the crucial importance of the controversy and hence, reached at an erroneous and arbitrary conclusion, which resulted in serious miscarriage of justice. The learned counsel submitted that the findings of the trial Court were liable to be struck down, but the learned 1st appellate Court also fell in grave error while concurring with the filidings of the trial Court.

7. Conversely, Syed Ahsan Ali Shah, Advocate, the learned counsel for the respondents, refuted the claim of the appellant and contended that the suit land was in possession of the defendants/ respondents, since long and the controversy had already been resolved up to the Supreme Court and the decree of the civil Court in this regard has attained finality and the suit of the plaintiff was hit by the principle of res judicata and the same has rightly been held by the learned Courts below. The trial Court has rightly dismissed the suits, being hit by res-judicata and the findings of the trial Court stood up-held and endorsed by the 1st appellate Court and no such illegality, infirmity, misreading or non-reading has been indicated by appellant's side, which may suggest interference of this Court in second appeal. Finally, the learned counsel craved for dismissal of the appeal.

8. I have heard the learned counsel for the parties, perused the record and considered the controversy with due care.

9. It may be stated that the instant appeal assails the judgment and decrees passed by the Courts below, while dismissing the suit filed on behalf of present appellant Ameer Hussain Shah on the ground of being hit by res-judicata. In this regard, I have perused the judgment of the trial Court, in juxta-position with the judgment and decree of the 1st appellate Court, this Court and the apex Court, as well. For proper appreciation of the issue, relevant portion of the judgment of the trial Court is reproduced, hereunder:-

10. The observation of the trial Court is also supported by the judgments of the other Courts and the names of the plaintiff/appellant along with his brother and earlier his father Muneer Hussain Shah are present in the title of the judgment of the trial Court in line of the defendants/respondents, and later on as appellants before this Court and also before the apex Court and the appeal of the appellants, therein, before the Hon'ble apex Court was dismissed with costs, hence the judgment and decree passed by the trial Court on 01.12.1992 stood finalized up to the Supreme Court and the plaintiffs were not entitled to agitate the same controversy in 2nd round.

11. Even otherwise, the instant case is that of concurrent findings. It is well settled principle of law that concurrent findings of facts rendered by the Courts below, cannot be disturbed unless and until it is specifically pointed out by the appellants, litigant party that which part of evidence oral or documentary or which evidence as a whole was misread or non-read or some glare illegality or departure from the settled law has been committed by the Courts below. The proposition has been resolved by the Hon'ble apex Court of Azad Jammu and Kashmir in case titled Akhtar Hussain and others v. Raja Mohammad Zarin Khan [1993 SCR 114] wherein it has been observed as under:- "

A general allegation of misreading or non-reading of evidence would not render the concurrent findings of fact open to challenge

It is necessary for the party to specifically point out the witnesses whose statements were misread and support the contention by certified copies of the said statements."

12. The like proposition has also been resolved by the apex Court in another case titled Adalat Khan v. Fazal Hussain and another [1995 SCR 151]. Relevant observation is reproduced below: CONCURRENT FINDING: OF FACTS. "-Even if a different conclusion from the one reached by the Courts below is possible, the High Court is not legally 'competent to disturb the findings until and unless a case of non-reading or misreading of evidence is made out or a gross illegality is shown to have been committed while appreciating evidence of a witness."

13. Having taken into Consideration the above reproduced dictum of the Supreme Court of AJ&K in contemplation with the facts and circumstances of the case in hand, this Court does not find any room to deviate from the celebrated principle of law.

14. The sequel of above discussion is that finding no force in the instant appeal, the same is hereby dismissed with costs. ZC/15/HC(AJ&K) Appeal dismissed.