2094 PLP 1719 (SCMR)

MUNIR A. SHEIKH, J.

By this common judgment, we propose to decide both the titled petitions Involving identical questions of law and facts.

2. Through two registered sale-deeds, dated 5-10-1991, the plots subject-matte of these petitions was sold to the petitioners by Nazir Alam. The respondent filed suits to pre-8mpt the said sale. The trial Court dismissed the suits through judgment dated 19-12-1994 by holding that the respondents had failed to prove that he had complied with the requirements of Talab-i-Muwathibat In appeals filed by him, the First Appellate Court affirmed the said findings and dismissed the appeals through judgment, dated 6-1-1998. The revision petitions filed by him have been accepted through the judgment impugned in these petitions against which leave is sought.

3. The only point on which the respondent was non-suited by the trial Court was that in one of the cases from which Civil Petition No.3112 of 2003 has arisen, in the examination-in-Chief, the respondent, plaintiff stated that after having acquired knowledge of the sale on 18-10-1991, he sent three witnesses as Jirga to the petitioners on 10-10-1991, therefore, he shall be deemed to be acquired knowledge on 10-10-1991 as such Talab-i-Muwathibat allegedly made on 18-10-1991 was not correct. In the other case from which Civil Petition No.3104 of 2003 has arisen; it was held that no particulars as to the date and time were given in the plaint on which Talab-i-Muwathibat was made, therefore, the suit was liable o be dismissed.

4. The learned Judge of the High Court or, perusal of the record came to the conclusion that the mention of date 10-10-1991 on which Jirga was sent to the petitioners after acquisition of knowledge of sale on 18-10-1991 had either not been correctly recorded or the same had occurred due to slip of tongue for, from consideration of the entire evidence which was consistent, it was made out that on 18-10-1991 when the respondent-plaintiff acquired the knowledge, he made Talab-i Muwathibat and sent the Jirga to the petitioners because the respondent plaintiff also stated that on the next date of Jirga, they went to issue a notice for Talab-i-Ishhad on 19-10-1991. In the other case, it was held that this. Court in subsequent judgments had declared the law that exact date with time and place on which Talab-i-Muwathibat was made was not required to be given in the plaint as it was a matter of evidence which according to law or pleadings were not required to be given in the plaint as it was a matter of evidence which according to law of pleadings were not required to be given in details in the pleadings and evidence could be led in proof of Talab-i-Muwathibat on a particular date.

5. Learned counsel for the petitioners submitted that inferences drawn by the two Courts below from the statement of the respondent-plaintiff to hold that on 10-10-1991, he had acquired the knowledge of the sale could not have been interfered within in the revision petitions.

6. We are afraid, the argument in the facts and circumstances of these cases is misconceived. There can be no cavil with the proposition that a Court has the discretion to raise inference from the evidence produced by the parties but it is equally established proposition of law that exercise of such discretion is always subject to correction by the higher Court in appeal or revision as the case may be.

7. The two Courts below raised inferences from the part of the statement of the respondent-plaintiff that he came to know about the sale on 10-10-1991 in isolation which was not proper exercise of discretion as to raising of inferences. The learned Judge of the High Court has rightly held that from the evidence if read as a whole, it was made out that the said sentence had either not been correctly recorded in the statement of the plaintiff or there was mistake in mentioning the date as 10-10-1991. We have also gone through the evidence and find that it was proved through the evidence of the witnesses who were mentioned in the statement of the plaintiff that the plaintiff came to know of the sale on 18-10-1991 three witnesses were sent as Jirga to the petitioners on the same date and notice was issued on the following day i.e. 19-10-1991. The inferences drawn by the two Courts below were therefore, rightly interfered with, the same having been found to have been based on non consideration of the evidence as a whole, which are in accordance with law and do not suffer from any legal infirmity.

8. Learned counsel for the petitioners lastly argued that after the dismissal of the suit, the petitioners raised construction over the land, therefore, they should be granted compensation for the said construction. When questioned, he admitted that the petitioners did not raise any such plea during the argument before the High Court. In these petitions, though a ground has been taken but no amount has been mentioned about the costs of the said alleged construction. Mere dismissal of the suit by the trial Court was not the end of the matter. It is well established law that appeal before the First Appellate Court is continuation of the suit which shall be deemed to be pending till the disposal of the matter by the Appellate Court, as such, we are not inclined to entertain the plea at this stage in these circumstances for compensation as to alleged construction.

9. The findings recorded by the learned Judge of the High Court do not suffer from any illegality, therefore, these petitions have no force which are accordingly dismissed and leave refused. M.H./F-6/S Petition dismissed.