2019 PLP 52 (CLCN)

ALI BAIG, J.

Through the instant civil revision petition the Petitioners/plaintiffs have impugned the judgment/decree dated 10-7-2017 passed by the learned District Judge Astore whereby the learned 1st Appellate Court has dismissed the Civil 1st Appeal of the present petitioners/plaintiffs by maintaining the judgment/decree dated 29-10-2016 passed by the learned Senior Civil Judge Astore.

2. Brief facts essential for the disposal of the instant civil revision petition are that on 23-06-2007 the petitioners/plaintiffs filed a suit for declaration and perpetual, injunction against the present respondents/defendants before the Court of the learned Senior Civil Judge Astore. The case of the petitioners/plaintiffs was that the petitioners/plaintiffs are owner in possession of suit land namely " Qila Uch" and the defendants have illegally and authorisdly started to construct a water course/channel from "Qila uch" to take water to their village known as Dashkin. The plaintiffs have exclusive rights over the disputed water situated at a place known as "Qila Uch" and the defendants have no rights over the water of" Qila Uch". The plaintiffs have been using the disputed water for drinking, irrigation purpose and running their water mills since ancient time, therefore, the defendants/ respondents may be restrained from constructing water channel from the disputed area/suit land.

3. The present respondents/defendants contested the suit by way of filing of their written statement in the trial Court wherein the defendants have raised as many as nine (9) legal objections. The defendants/respondents have also repudiated the averments of plaint on facts as well. out of divergent pleadings of parties, the learned Trial Court has framed the following issues:-

4. After framing of above mentioned issues the petitioners/ plaintiffs got recorded their statement through their representative namely Rajab Khan son of Saeedullah and the petitioners have also produced three oral witnesses namely Shezad Noor, Abdul Aziz and Rajab Ali who appeared before the trial Court as PW-1, PW-2 and PW-3 respectively. The plaintiffs have also produced one Abdul Hai son of Abdul Wadood as rebuttal witness in the Trial Court. The plaintiffs/petitioners have also produced some documentary evidence in the Trial Court.

5. Likewise the respondents/defendants have also got recorded their statement before the learned Trial Court through their representative Mohammad Ashraf on 20-02-2015. The defendants have produced four witnesses in support of their written statement/claim namely Muhammad Rahim, Amir, Abdul Shakoor and Raja Muhammad Sher and the above named witnesses appeared before the Trial Court as D.Ws. 1 to 4 respectively. The defendants have also produced some documentary evidence Exh D/1 to D/3 before the Trial Court.

6. On conclusion of Trial, the learned Trial Court after hearing arguments on behalf of both the parties had dismissed the suit of the plaintiffs/petitioners vide judgment/decree dated 29-10-2016. The present petitioners had challenged the afore said judgment of the learned Trial Court before the learned District Judge Astore through Civil 1st Appeal which was also dismissed by the learned 1st Appellate Court vide the impugned judgment dated 10-7-2017, hence this revision petition.

7. The learned counsel appearing on behalf of the petitioners contended that the impugned judgment/decree passed by the learned 1st Appellate Court is contrary to law and facts on the record of case as such the impugned judgments/decrees passed by the learned 1st Appellate Court as well as the learned Trial Court are not maintainable and liable to be set aside. The learned counsel for the petitioners/ plaintiffs further argued that concurrent findings of facts recorded by both the Courts below are result of gross misreading and non-reading of evidence of parties. The learned counsel for the petitioners further argued that the impugned judgments passed by the learned Courts below are perverse, based on conjectures and suppositions, thus the said judgments of Courts below are not tenable and liable to be set aside.

8. Conversely, the learned counsel for the respondents controverted the arguments advanced by the leaned counsel for the petitioners and contended that there are concurrent findings of facts recorded by both the Courts below, which are based on proper appraisal of evidence. The learned counsel for the respondents further argued that there is no jurisdictional defect in the impugned judgments/decrees and counsel for the petitioners has also not pointed out any material irregularity or illegality in the impugned judgments/decrees passed by both the Courts below, warranting interference by this Court in exercise of revisional jurisdiction.

9. I have give my thoughtful consideration to the submissions made by the learned counsel for the parties and perused the record with their able assistance.

10. From perusal of record it appears that the petitioners/plaintiffs have filed a suit for declaration and permanent injunction against the present respondents/defendants with the following prayer:- As per revenue record the plaintiffs are exclusive owners of pasture namely "Qili Uch" situated in the area of Harcho and water running there-from is in their exclusive use for irrigation, drinking etc and the respondents/ defendants are trying to take the disputed water from the pasture" Qila Uch" by constructing a water channel, therefore, permanent injunction against the defendants may be granted by restraining the defendants from construction of water channel from the disputed pasture "Qila Uch".

11. The defendants/present respondents have repudiated the aforesaid averment/assertion of the petitioners/plaintiffs by pleading/asserting in their joint written statement that defendants have constructed the disputed water channel long ago from within their own landed properties and head of suit Channel has been constructed from "Satyab" which is situated three miles away from "Qila Uch" and the landed properties belong to the residents of Dashkin/defendants situated at Nooruddin dass and are being irrigated from the disputed water channel.

12. In order to substantiate their above mentioned claim the plaintiffs/petitioners have produced three oral witness namely (1) Shazad Noor son of Mahi Noor (2) Abdul Aziz son of Muneer Mohammad and 3 Rajab Ali. The petitioners/plaintiffs have also produced some documents Exh P/1 to P/4 in the learned Trial Court. I have gone through the statements of above named PWs. recorded before the learned Trial Court and also gone through the contents of the documents Exh P/1 to P/4 which were produced in the Trial Court. From perusal of statements of PWs. it reveals that the above named P.Ws. have not uttered a single word in their statements that the disputed pasture is owned by the plaintiffs/petitioners and the respondents/defendants are constructing water channel from "Qila Uch". Moreover, revenue record Exh P/1 Exh P/4 are also silent regarding ownership of the pasture/place known as "Qila Uch" Moreover, the plaintiffs had to prove that the disputed channel is being constructed from "Qila Uch" and it is nowhere in the revenue record Exh P/1 to P/4 that the disputed channel is being construct from "Qila Uch". It is also evident from the record that record of grazing rights Exh P/4 was allegedly attested by one Mohammad Rafiq Tehsildar but he had appeared before the learned Trial Court on 22-6-2016 and got recorded his statement wherein he has stated that he has not attested the afore said document Exh P/4 which makes said document doubtful.

13. It would not be incongruous to mention here that during previous round of litigation between the parties a single Bench of this Court had appointed Mr. Ghulam Haider the then Tehsildar as commission to determine the controversy between the parties and the above named commission has submitted his report wherein the learned commission has stated that the disputed water channel has been constructed from a pasture known as Sath yab thus the commission report also support the version/claim of the respondents/defendants and negates claim of the petitioners/plaintiffs.

14. For what has been discussed above, it is concluded that the concurrent findings of both the Courts below are based on proper appreciation of evidence and material available on record of the case and law applicable thereto, hence the same do not warrant interference by this Court in exercise of its revisional jurisdiction under section 115, C.P.C. Accordingly the instant revision petition being bereft of any merit is dismissed. Parties are directed to bear their own costs. File SA/25/GB Petition dismissed.