1988 PLP 1866 (CLC)

(b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑

0. XLI,. R. 27 & S. 115‑‑Production of additional evidence‑ Petitioner alleged that Appellate Court had failed to dispose of application of petitioner for additional evidence filed by him before Trial Court‑‑Appellate Court specifically noting in its judgment that no other ground was urged before it and failure to file affidavit oaf counsel who argued appeal, with revision petition, would show that alleged question was not pressed by petitioner before Appellate Court while arguing appeal‑‑Such question, held, could not be pressed in revision petition‑‑No case for interference in revisional jurisdiction was made out in circumstances. Malik Noor Muhammad for Petitioner. Muhammad Hanif Khan Niazi for Respondents Nos.l to

3. Minatullah for Respondent No.4. Date of hearing: 22nd November, 1987. This civil revision arose out of a suit filed by Ikram Ullah Khan, the successor in interest of Abdul Ghafoor against Abdul Razzaq, the petitioner and United Bank Limited, respondent No.4 for declaration that they are owners in possession of house in question and that judgment and decree dated 16‑7‑1978 passed by Raja Abdul Qayyum, Civil Judge, Mianwali in favour of Abdul Razzaq was based on fraud, misrepresentation, without notice to them and hence, was illegal, void and not effective qua the rights of the plaintiff. It was further prayed that the mortgage deed whereby Abdul Razzaq petitioner had mortgaged the house in suit to the Bank against a loan of Rs.50,000 was collusive and hence, ineffective on their proprietary rights. They ‑by way of consequential relief prayed that the respondent be permanently restrained from interfering in their possession of the house in question. The suit was contested by the defendants and after framing issues arising out of the pleadings of the parties and recording evidence produced by the parties, learned trial Court decreed the suit vide judgment and decree dated 23‑1‑1984. Abdul Razzaq, petitioner, as well as United Bank Limited filed two separate appeals challenging the aforesaid decree but both the appeals were dismissed by the learned District Judge Mianwall vide judgment and decree dated 3‑7‑1984, Abdul Razzaq only then challenged the judgment and decree of the learned District Judge by filing the present revision petition.

2. I have heard the learned counsel for the parties and have gone through the record. Learned counsel for Abdul Razzaq submitted that the appellate Court has not applied its own mind as it had failed to give elaborate reasons for upholding the judgment and decree of the trial Court; that ‑no definite finding with regard to possession over the house in dispute has been given, as such the declaratory suit should not have been decreed. Lastly, it was urged that the lower appellate Court failed to dispose of the application for additional evidence filed by the petitioner before the lower Court. Had the additional evidence been allowed, it could be shown that the copy of Death Register showing the date of death of Abdul Ghafoor as 22‑10‑1963, was fabricated and forged document and in that event the fate of the case would have been otherwise.

3. It is true that elaborate reasons have not been given by the lower appellate Court while confirming the finding of learned trial Court that the plaintiff /respondent was owner in possession of the suit house. I have however, myself gone through the evidence on record with the assistance of the learned counsel for the petitioner. The version of the petitioner was that he was in possession of the house since the sale of the house in his favour 15/16 years ago. On this point, the version of the petitioner is contradictory as pointed out by the learned trial Court in its judgment. In the pleadings, his case was that he had obtained the sale‑deed 10 years earlier but in the witness‑box, he stated that it was 15/16 years ago when Abdul Ghafoor had sold the house in his favour. Abdul Ghafoor died in 1963 as per death certificate Ex.P.3. It is in the evidence of the plaintiff that house remained in their possession throughout. The petitioner in his statement also added that for the last one year, Atta Ullah, his father‑in‑law, is in possession and earlier the suit house was in his possession. Atta Ullah, DW in his statement, however, stated that earlier to him, the house was in possession of a tenant. No mention of any such tenant was, however, made by the petitioner himself in his own statement. He also stated that he had added a baithak to the house. The site plan produced though was exhibited as Ex. D1 but this site plan was not got sanctioned from the Municipal Committee. Ex. D1 appears to be a plan got prepared from the father of Abdul Rehman, DW.3 as it is in the statement of this witness that site plan Ex. Dl was prepared by his father, who is a draftsman. He admitted that his father was alive but was an old man. He added that he is physically fit to move about. The site plan EX. D1 as such is of no. evidentiary value as the person who had prepared the plan had not been produced. Even the date on which the plan was prepared has not been indicated on Ex. D

1. In these circumstances, the learned Courts below were right in returning concurrent findings of fact against the petitioner. These findings having been based on record are not amenable .to interference in revisional jurisdiction.

4. The order refusing to allow additional evidence passed by the Trial Court, seems not to have been challenged while arguing the appeal as no plea pertaining to this question has been dealt with by the learned District Judge in the impugned judgment. The learned District Judge has specifically noted that no other ground was urged, before him. In the memorandum of revision petition, it is not the case of the petitioner that this plea was not abandoned by the petitioner while arguing the appeal or that this question was raised and argued but the learned District Judge failed to take notice of the same. Moreover, affidavit of the counsel who argued the appeal has not been filed. All this would show that this question was not pressed while arguing the appeal. This being the position, this question cannot be pressed in the revision petition. No case for interference in the revisional jurisdiction is thus made out. The revision petition fails and is dismissed.

5. Before parting with the judgment, it appears appropriate to record that Mr. Khizar Hayat Samandi Khel, Advocate has entered appearance pursuant to the notice issued. I am however, not inclined to make any comment at this stage with regard to the direction made by the learned District Judge as Mr. Khizar Hayat Samandi Khel Advocate has yet to avail the opportunity to explain his position before the learned Senior Civil Judge, Mianwah. H . B . T . / A‑281/ L Revision petition dismissed.