1980 PLP 1625 (CLC)

RAJA MUHAMMAD KHURSHID KHAN, J.-The petitioner Sakhi Mohammad who was a defendant in the Court of original civil jurisdiction seeks leave to appeal to assail the judgment passed by a learned Single Judge of the High Court on 31st May 1978 whereby finding no sufficient grounds to interfere with the concurrent finding of fact arrived at by the Courts below, his appeal was dismissed with costs.

2. Before embarking upon to determine whether any good ground exists to grant leave to appeal we would like to impress upon the members of the bar that leave cannot be granted as a matter of routine A until some serious question of law is not made out. In this case Kamoo transferred the land in suit measuring 78 kanals, 8 marlas to Sawar respondent for a consideration of Rs. 40,000 vide registered sale deed dated 10th of March, 1969. Sawar, on the basis of title derived from this sale-deed sued the petitioner/defendant for possession of the land in suit in the Court of Sub-Judge Kotli. The learned Judge passed a decree in favour of Sawar which has also been maintained in appeals before the District Judge as well as the High Court.

3. The learned counsel for the petitioner wants us to grant leave to appeal as the evidence had not been properly appreciated by the Courts below and also on the ground that District Judge was not competent to substitute a decree for joint possession instead of `Khas possession' passed by the learned Sub-Judge.

4. We have given our considered thought to the points argued which, in our estimation, do not provide a justifiable ground for acceptance of the petition for leave to appeal. Reading of the judgments makes us to believe that the learned Judge in the High Court as well as the Court of first instance and first appellate Court (District Judge) after well reasoned out analysis of the evidence, for and against the controversial issues rightly found that Kamoo had a title to the land in suit which was validly transferred to Sawar and for that reason Sawar was entitled to have the possession of the suit land. As the property was joint along with other co-sharers, the learned District Judge very rightly, in appeal, modified the decree passed by the learned Sub-Judge for `Khas possession' to that of joint possession. The learned counsel for the petitioner in this case failed to show as to what illegality or irregularity amounting to abuse of the process of the Court had been committed in substituting the decree for joint possession instead of `Khas possession' passed by the learned Sub-Judge. We fail to understand as to how the decree for joint possession affects the petitioner adversely. In fact a decree for joint possession is to the benefit of the petitioner as immediate possession is delayed. The learned District Judge under Order XLI, rule 33 read with section 151, C.P.C. was competent to pass any decree and make any order which ought to have been passed by the trial Court although no appeal was filed on the point.

6. The perusal of rule 33, Order XLi, C.P.C. shows that it consists of two parts as is rightly held in Ghulam Hussain Khan v. Mst. Aseela Begun: and 3 others (P L D 1978 Azad J& K I). It was observed in that case "A perusal of the Rule shows that it consists of two parts. In the first part it invests the Appellate Court with the following sweeping powers :- (1) To pass any decree which ought to have been passed. (2) To make any order which ought to have been made. (3) To pass such further decree as the case may require. (4) To make such further order as the case may require. The Legislature, consisting then, of wise men, some of whom had spent a lifetime in the service of law, clearly versioned the cropping up of two questions (1) Whether the powers covered even that part of a decree, against which there was no appeal or cross-objection. (2) Whether it could be invoked in favour of parties who had neither appealed against an unfavourable verdict nor utilised the opportunity furnished by their opponents filing an appeal, by rolling in a cross-objection. "These questions were affirmatively answered in the second part in order to put all doubts at rest." We approve the view taken in this case.

7. Ordinarily concurrent finding of fact cannot be re-opened by the High Court unless the finding is perverse for its being based on misreading or non-reading of the evidence or on some other grounds akin to non-reading or misreading of the evidence. Here in this case C the revenue record (documents P. A., P. B. and P. C.), as held by the learned Judge in the High Court, proves that Kamoo was the owner of the land sold to Sawar and the plea of Sakhi Mohammad that the land in suit was not sold by Kamoo is unfounded especially when Kamoo himself admits to have sold the land to Sawar vendees-respondent. In admits of no doubt that as held in `Sree Meenakshi Mills Ltd.. Madurai v. Commissioner of Income-tax, Madras' (P L D 1957 S C (Ind, 188) a finding on a question of fact is open to attack as erroneous. in law only if it is not supported by any evidence, or if it is unseasonable and perverse, but that where there is evidence to consider, the decision of the Tribunal is final even though the Court might not, on the materials,, lave come to the same conclusion if it had the power to substitute its own' judgment'.

8. In a case of Sultan Ahmad v. Mostafa Khatun and 3 others (1968 S C M R 209) it was held that `the finding by the first Court of appeal was not in any manner vitiated such as, by misreading of evidence or was based on surmises and conjectures the view taken by the High Court regarding the scope of the appeal preferred by the petitioner was in the circumstances quite correct'. . In view of the above we see no ground to grant leave to appeal. The petition for leave to appeal therefore stands dismissed with costs. . Petition dismissed.