2004 PLP 658 (CLC)

4. After framing necessary issues and recording evidence, the suit was dismissed by the trial Court on 22-11-1997. Petitioner's appeal against that decree was also dismissed by Additional District Judge, Alipur vide judgment, dated 26-10-2000.

5. The petitioners have now assailed the aforesaid judgments/decrees of the two Courts below in this civil revision.

6. It was argued by the learned counsel for the petitioners that; (i) both the judgments are against law and facts; (ii) evidence was misread and overlooked by the two Courts below; (iii) both the Courts ignored an important aspect of the case that under the exchange agreement the predecessor-in-interest of the petitioners and after his death the petitioners ark in possession of the exchanged land; (iv) the Appellate Court in its impugned judgment did not give issue-wise findings and thus, violated mandatory provisions of Order XX, rule 5, C.P.C. and (v) that both the Courts below, in the exercise of their jurisdiction acted illegally and with material irregularity while passing the impugned judgments.

7. Revision petition is strongly opposed by the learned counsel for the respondent.

8. Arguments heard civil revision and its Annexures perused.

9. Learned counsel for the petitioners could not point out any material piece of evidence which was allegedly overlooked and misread by the Courts below. Neither there appears to be any misreading of evidence nor any important piece of evidence appears to have been overlooked in the impugned judgments.

10. The petitioners had sought a decree for specific performance of written agreement which was not produced in the evidence and terms thereof could not be disclosed by petitioner Muhammad Bakhsh who appeared in the witness-box as P.W.2. The petitioners had failed to establish through their evidence that their predecessor was the owner of 22 Kanals of land which he had agreed to give in exchange to the respondent or that land measuring 22 Kanals belonging to their predecessor-in-interest was even given to the respondent under the exchange agreement.

11. Contention of the petitioners' counsel that under the exchange agreement, the predecessor-in-interest of the petitioners and after his death petitioners are in possession of the suit-land and this aspect was ignored by the lower Courts, is without any substance because that fact alone was not sufficient for granting the decree for specific performance; moreover it was proved on record that they and their predecessor-in- interest were tenants on the suit-land under the respondent.

12. Both the Courts below have given concurrent findings on question of fact that predecessor-in-interest of the petitioners did not perform his part of the obligations under the agreement and the same stood cancelled.

13. Findings on question of fact or law recorded by the Courts of competent jurisdiction, though erroneous, cannot be interfered with in revisional jurisdiction inasmuch as said jurisdiction is directed against irregular exercise, non-exercise or illegal assumption of jurisdiction and not against conclusions of law and fact not involving question of jurisdiction.

14. Impugned judgments are reasonable, findings are based on evidence and are supported by plausible reasoning.

15. Contention of the petitioners counsel that Appellate Court had violated provisions of Order XX, rule 5, C.P.C. by not giving issue-wise findings is repelled for the reason that issues Nos. 1 to 5 and 7 were decided by the trial Court against the respondent/defendant who did not file any appeal or cross-objection against the same hence the Appellate Court was not required to discuss and give its findings on the said issues which were admittedly not decided against the petitioners. The main or basic issues was Issue No.7 viz. whether the plaintiffs are entitled to the decree of specific performance of the agreement while the remaining two issues viz. whether the defendant or whether predecessor -in-interest of the petitioners had failed to perform their part of the agreement were interlinked with the aforesaid main issue. Hence they were discussed together by the Appellate Court and no prejudice was caused to the petitioners in not discussing and deciding the said issues separately.

16. Adverting to the last argument of the petitioners' counsel it may be observed that the words "illegally or "with material irregularity" used in section 115, C.P.C., have reference to material defects of Procedure. Learned counsel for the petitioners could not draw my attention to the breach of any provision of law or the commission of any error of~ procedure by the two Courts below.

17. Impugned judgments are reasonable and do not suffer from any jurisdictional infirmity. Revision petition is accordingly dismissed. M.H./M-2285/L Revision dismissed.