2004 PLP 910 (CLC)

‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), S.100‑‑‑Appeal before Supreme Court‑‑‑Trial Court as well as First Appellate Court had discussed in detail the evidence which was produced by parties and had resolved issues in favour of respondents‑‑‑High Court under embargo contained in S.100, C.P.C. had observed that it had no jurisdiction to entertain second appeal against concurrent findings of Courts below, particularly when it was not brought to its notice that findings so recorded suffered from any misreading or non‑reading of evidence‑‑ View expressed by High Court was in accordance with provisions contained in S.100, C.P.C.‑‑‑Appellants having failed to point out any misreading or non‑reading of evidence by Courts below, appeal against concurrent judgments of Courts below which were not suffering from any defect, was dismissed by Supreme Court. Ch. Muhammad Azam Khan, Advocate for Appellants. Nazir Ahmed Ghauri, Advocate for Respondents. Date of hearing: 22nd January, 2002. KHAWAJA MUHAMMAD SAEED, J.‑‑-This appeal with leave of the Court is directed against the judgment and decree of the High Court passed on 30‑3‑2001.

2. The appeal has arisen out of suit which was filed by one Qaim Din, the predecessor‑in‑interest of the, present respondents, in the Court of Sub‑Judge Sehnsa on 15‑11‑1989. In his suit he pleaded that on 12‑4‑1982 the appellants before us filed a' suit for declaration and possession against him and other pro forma‑defendants who were arrayed by him in his suit. In that suit the appellants admitted his ownership and ownership of pro forma‑respondents to the extent of land measuring 6 Kanals, 14 Marlas according to old scale and 4 Kanals, 6 Marlas according to new scale, from Survey Nos.12, 13, 14, Khewat No.4, Khata No. 23 total land measuring 20 Kanals. They also admitted that out of this land 4 Kanals of land, according to old scale was transferred by him to pro forma‑respondents. They had also admitted that after the transfer of land his share in the land remained to the extent of 2 Kanals and 16 Marlas which was under their possession. They further admitted that he has occupied 7 Kanals and 8 Marlas of land from Survey No. 1 which was under their ownership. They also alleged about him that he had illegally got recorded entries in the Revenue Record regarding Survey Nos. 15 and 1/13. Therefore, these be declared null and void and inoperative on their rights. It was further claimed by them that on the basis of these illegal entries the plaintiff Qaim Din, the predecessor‑in- interest of respondents, had filed a suit titled Qaim Din v. Fazal Dad and others in which he had also challenged the gift‑deed which was executed by Mst. Makhan, the mother of present appellants, in their favour who, according to Qaim Din; was a limited owner as such not entitled to transfer the land to them According to Qaim Din, the predecessor‑in- interest of the present respondent, both these suits were consolidated by the trial Court. On the basis of a compromise his suit was dismissed whereas the suit of his opponents was decreed to the extent of land measuring 10 Kanals, 16 Marlas, out of old Survey Nos.15 and 1/13 which are the new numbers of old Survey No. 1 to the extent or remaining land the respondents abandoned their claim by making statements to that effect as such their suit to the extent of remaining land was dismissed. Contrary to the previous litigation his opponents have again started claiming their right of ownership on the rest of the land about which they had withdrawn their suit and now are intending to snatch the possession of this land from him. He, therefore, requested that permanent injunction be issued restraining them from trespassing upon the aforesaid land.

3. The suit was contested by the defendant‑appellants. After the trial of the suit the learned trial Court decreed the suit of plaintiff, Qaim Din, vide judgment and decree, dated 23‑11‑1993. Feeling aggrieved from the judgment and decree of the trial Court, the appellants filed an appeal before the learned District Judge who dismissed the same vide his judgment and decree, dated 29‑11‑1997. The defendants‑appellants filed their second appeal before the High Court on 23‑2‑1998 which was also dismissed by the learned Judge vide his judgment and decree, dated 30‑3‑2001.

4. Ch. Muhammad Azam Khan, the learned counsel for the appellants, argued that proper issues were not framed by the trial Court in the light of the pleadings of the parties. Due to this reason the real controversy between the parties has not been resolved. This legal aspect of the case, according to the learned counsel for the appellants, has not been attended to by the Courts below, therefore, the judgments of the Courts below are to be set aside. According to him Qaim Din, the legal predecessor of the respondents, failed to prove his case. Despite this fact, according to the learned counsel, he was illegally granted decree by the trial Court which without application of mind was approved by two Appellate Courts.

5. Mr. Nazir Ahmed Ghauri, the learned counsel for the respondents, on the other hand supported the judgments of all the Courts. According to him all important issues were framed by the trial Court in the presence of the learned counsel for the parties.

6. We have heard the learned counsel for the parties and gone through the record of the case. In the High Court the question of framing the issues was not raised by the learned counsel who appeared on behalf of the defendant‑appellants. Only one point was raised before the High Court that the evidence available on record was not appreciated by the Courts below. It was specifically mentioned by the learned Judge in the High Court that no other point was raised before him. We have noticed that no affidavit sworn in by Ch. Muhammad Yusuf, Advocate, who had appeared on behalf of respondents before the High Court has been filed that he raised the objection about issues before the learned Judge in the High Court but the same was not resolved by him. It is not even mentioned by the appellants in the grounds of appeal that the question relating to the framing of proper issues was raised by them before the High Court and the District Judge but the same has not been resolved by these Courts. It is the normal practice of this Court that a point not raised before the Courts below cannot be allowed to be raised before it. In exceptional cases, a point of law going to the roots of the case is allowed to be raised. In the present case, the appellants cannot be allowed to raise the question of framing of any issue at, this stage because admittedly it is duty of the Court as well as Advocates of the parties to ensure that necessary issues arising out of the pleadings of the parties are framed. In this case the counsel representing the appellants never brought to the notice of the trial Court any omission or incorrectness of any issue framed by it. Now this point cannot be raised in the Supreme Court. Even otherwise it is not brought to our notice that the non‑framing of any issue has proved fatal to the substantial justice in the present case. The argument in respect of issues is misconceived therefore, stands repelled. The trial Court as well as the First Appellate Court have discussed in detail the evidence which was produced by the parties and have resolved the issues in favour of the respondents. The learned Judge in the High Court under the embargo contained in section 100, C.P.C. observed that he had no jurisdiction to entertain the second appeal against the concurrent findings of the Courts below, particularly when it was not brought to his notice, that the finding so recorded suffer from any misreading or non‑reading of evidence. The view expressed by the learned Judge in the High Court, therefore, in accordance with the provision contained in section 100 of the C.P.C. We gave an opportunity to the learned counsel for the appellants to point out any misreading of non‑reading of evidence on the part of the Sub‑Judge, Sehnsa or District Judge, Koth but he failed to point out any such defect in the appreciation of evidence made by these Courts. In the light of above reasoning there is no force in this appeal, the same, therefore, stands dismissed with costs. H.B.T./5‑SC(AJ&K) Appeal dismissed.