2003 PLP 801 (YLR)

(2) Whether the suit is based on mala fides? (3) Whether the suit is time‑barred? (4) Whether the plaintiff had given suit and to defendant as 'Fee Sabilillah' as evident from his statement before EAC, Samarbagh, District Dir? (5) Whether the parties had executed a document on 29‑2‑1996 in respect of suit house? (6) Whether the plaintiff is entitled for the decree prayed for? (7) Relief.

3. In evidence Mir Wali Khan plaintiff appeared as P.W.1 and he produced Muhammad Zaman Khan and Abdul Malik P.W.2 and P.W.3 respectively. As against this, Hazarat Ali Khan, defendant appeared as D. W.1 and the statements of Noor Alam Khan and Khanzada were recorded as D. W.2 and D.W.3. The plaintiff was also examined as RPW 1.

4. The learned Civil Judge, seized of the matter, upon consideration of the material available before him decided Issues Nos. 1, 4 and 5 together and proceeded to hold that plaintiff‑respondent has succeeded to prove his case by producing cogent and reliable evidence and that the document, dated 29‑2‑1996 is an authentic document and the parties are bound by the terms and conditions contained therein. He also pointed out that the statement given by the plaintiff in the Court of EAC, Samarbagh, Dir, cannot be given preference over document, dated 29‑2‑1996. Having held so, the suit was decreed vide judgment and decree, dated 6‑10‑1996 which was maintained in appeal by learned District Judge, Dir through judgment, dated 11‑3‑2000, which has given rise to the filing of instant revision petition.

5. Haji Muhammad Zahir Shah, Advocate, learned counsel for the petitioner contended with vehemence that the material brought on record to substantiate the claim of the petitioner, has not been properly assessed and evaluated and findings recorded on Issues Nos. 1, 2 and 3 to 6 are the result of gross misreading and non‑reading of evidence and cannot be allowed to remain intact. He reiterated that sufficient evidence was led on behalf of the petitioner to establish that respondent had given the land underneath the suit house to the petitioner as 'Fee Sabilillah' for constructing a house and that the petitioner had incurred an amount of Rs.120,000 on its improvement but this evidence was totally ignored which has resulted in manifest injustice. Adverting to the agreement, dated 29‑2‑1996 the learned counsel added that no independent and disinterested witness was produced by the respondent to prove execution of the document and the document has been accepted as correct without any valid reason. The learned counsel also contended that the judgment of the Appellate Court has been recorded in a slipshod manner in total disregard to the mandatory provisions of Order XX, rule 5 read with Order XLI, rule 31 of the Civil Procedure Code (V of 1908) which has seriously prejudiced the interest of the petitioner. Concluding the arguments, the learned counsel maintained that a finding of fact arrived at by ignoring material evidence or misreading material evidence was liable to be interfered, in exercise of revisional jurisdiction. To substantiate the pleas, reliance was placed on Abdul Hakim v. Habibullah (1997 SCMR 1139), Kanwal Nain v. Fateh Khan (PLD 1983 SC 53) and Anwar Bibi v. Abdul Hamid (2002 SCMR 144).

6. On the other hand Mian Sadullah Jandoli, Advocate for the respondent supported the impugned judgments and decrees of the Courts below and contended that the material on record oral as well as documentary, has been properly appreciated and assessed in its true perspective and the finding of fact recorded on issues are not open to exception. He maintained that the learned trial Court was quite justified to keep aside the statement of the respondent made in the Court of EAC Samarbagh, Dir regarding the, land in question. He submitted that an erroneous admission wag not conclusive and maker thereof could retract. Additionally, he urged that section 115, C.P.C. is directed against irregular exercise, non‑exercise or illegal assumption of jurisdiction and not against the conclusion of fact or law not involving the question of jurisdiction. The impugned judgments needed do not suffer from any jurisdictional error. The following judgments were cited in support of the submissions:‑‑ (a) Nazir Ahmad and others v. Zaba Bibi and others (2001 CLC 527); (b) Fateh Muhammad v. Additional Commissioner and others (1993 CLC 1248); (c) Nazir Ahmad v. Mst. Ghazala Bibi (2001 CLC 468); (d) Qabil Shah and others v. Shada (PLD 1992 Peshawar 144); (e) Manager, State Bank of Pakistan and another v. Ch. Muhammad Ikram and 2 others (1999 SCMR 2578); (f) Sardar Muhammad and 2 others v. Haider Zaman and 3 others (PLD 1993 Peshawar 81) and (g) United Bank Ltd. v. Messrs Sarhad Ghee Mills Ltd. and 13 others (1999 YLR 323).

7. There is no denial of the fact that the respondent is the owner of site beneath in the house in question and the petitioner has constructed a house over it. It has also come in evidence that deed was executed between the parties on 29‑2‑1996 concerning cost of improvements etc. The case of the petitioner is that respondent had given him the land under reference for construction as 'Fee Sabilillah' and that he has spent‑an amount of Rs.120,000 on its construction. The execution of the deed, dated 29‑2‑1996 is also brought under challenge and its genuineness has been challenged. The respondent has brought sufficient material on record in support of his claim whereas the petitioner has brought nothing to substantiate his claim. The evidence produced by the petitioner is discrepant and hardly inspires confidence. The mere assertion of the petitioner that respondent had given him land as 'Fee Sabilillah', without a positive attempt on his part to substantiate the same, is of no consequence. I also find myself in agreement with learned counsel for the respondent that the petitioner cannot be allowed to derive advantage of the statement of the respondent recorded in the Court of EAC Samarbagh, Dir made in a pre‑emption case. The mere fact that the respondent had stated so before the EAC Dir, by itself, cannot be considered a good ground in favour of the petitioner.

8. It is true that a finding of fact can be called in question when the same is found to have been arrived at ignoring material evidence o' misreading important evidence and is liable to be interfered, in exercise of revisional jurisdiction under section 115, C.P.C. but in the instant case both the Courts below have returned a unanimous verdict on question of fact and learned counsel for the petitioner has not been able to point out any material irregularity resulting into manifest injustices. It is not denied that section 115, C.P.C. applies only to cases involving illegal assumption or non‑exercise/irregular exercise of jurisdiction by the lower Courts. The provisions of section 115, C.P.C. cannot be invoked against conclusion of law/facts which do not affect the jurisdiction of the lower Courts, no matter, howsoever erroneous or wrong, the decision might be, either on a question of fact or law, unless the decision involves a matter of jurisdiction. Municipal Committee, Bannu v. Muhammad Iqbal and 3 others (1998 CLC 1714).

9. Learned counsel for the petitioner besides the above arguments which are dealing with the factual aspect of the case as well as legal, has also assailed the judgment of the Appellate Court on the ground that the judgment is not sustainable as the same is not in consonance with the requirements of Order XX, rule 5 read with Order XLI, rule 31, C.P.C. No doubt that Courts of law whether at the trial or the Appellate stage are to give their findings on each and every issue and the Appellate Court is required to give points for determination and shall refer all the questions involved in the case, but in the instant case I find that the trial Court has dealt the matter in a proper way and the omission on the part of the trial Court to discuss the matter issuewise, has not resulted in injustice. On this ground alone I do not feel inclined to accept the revision and set aside the impugned judgments of the trial Court as well as the Appellate Court.

10. It has been half‑heartedly argued on behalf of the petitioner that mandatory provisions of Order XIV, rule 1, C.P.C. have been seriously violated in this case and issues had not been formulated in the light of the pleadings of the parties. The submission is not tenable. It is no doubt correct that primarily it is the duty of the Court to frame proper issue, nevertheless parties are also not absolved to claim proper issues at the proper time. The petitioner cannot be heard at this stage, to say that he was prejudiced in view of the omission on the part of the trial Court to adopt proper issues.

11. In the light of the foregoing discussion the Courts below have not fallen into error by decreeing the suit and dismissing the appeal. The revision petition, having been found without substance, is dismissed with no order as to costs. Q.M.H./656/P Revision dismissed.