2007 PLP 1739 (YLR)

IJAZ-UL-HASSAN KHAN, J.--This civil revision has been preferred against the judgment and decree of the learned Additional District Judge/Izafi Zila Qazi, Swat dated 15-6-2002 whereby he dismissed the appeal of petitioners/plaintiffs and maintained the judgment and decree of the learned Civil Judge/Illaqa Qazi, Swat dated 22-6-2001 who vide the same had dismissed the suit of petitioners/plaintiffs.

2. Shortly narrated the facts, relevant for the decision of the instant petition are that Roohul Amin and his brother Saiful Ahad, plaintiffs instituted suit against Jalandar (since dead and represented by his legal heirs) and others, defendants, for declaration to the effect that plaintiffs were owner in possession of 1/2 share in the legacy of their predecessor-in-interest, late Nawab Khan and defendant had no right to deprive the plaintiffs of their due share in the property left behind by Nawab Khan deceased. The plaintiffs also prayed for grant of permanent injunction restraining the defendants to transfer or alienate the suit property in any manner. In the alternative, the plaintiffs also prayed for possession of suit property in case they were not found in possession of the same.

3. The suit was contested by the defendants on all grounds, legal as well as factual. The claim of the plaintiffs was denied and it was pleaded that Jalandar Khan defendant No.1 had purchased the suit property from his brother Amir Hafiz, father of the plaintiffs, on the basis of the sale-deed dated 23-11-1941 and thus plaintiffs had no concern with it. The matter was also stated to have been settled by the decision dated 5-4-1965 of the then ruler of Swat. In view of the divergent pleadings of the parties, following issue were framed for trial:--

4. The plaintiffs in order to substantiate their claim produced 15 witnesses in all. As against that, 9 witnesses were examined from the defendant's side. After taking into consideration the material placed before him and hearing arguments of learned counsel for the parties, learned trial Judge dismissed the suit by judgment and decree dated 22-6-2001 which was maintained and upheld in appeal by learned Additional District Judge/Izafi Zila Qazi, Swat through judgment dated 15-6-2002.

5. I have heard Mr. Muhammad Shoaib Khan, Advocate for respondents Nos.1 to 5, 9 and 10 and I have also gone through the arguments in writing submitted on behalf of the petitioners.

6. It is a common ground between the parties that Amir Hafiz, father of the petitioners/plaintiffs and late Jalandar Khan defendant No.1, were sons of late Nawab Khan, original owner of the suit property. The claim of the petitioners is that they have been deprived of their due entitlement by Jalandar Khan, in the legacy of late Nawab Khan. Though the petitioners have produced as many as 15 witnesses but they have not been able to establish their claim satisfactorily. The evidence produced by the petitioners is discrepant, contradictory and not worthy of credence. It is established principle of civil law that the plaintiff has to prove his case from his own evidence and cannot benefit from the weaknesses in the defendants case. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exists. A perusal of record would reveal that late Jalandar Khan had purchased the share of his brother Amir Hafiz, father of the petitioners, on the basis of sale-deed dated 23-11-1941 and as such petitioners were divested of their entitlement in suit property. It also stands proved from the record that controversy regarding suit property has been resolved by ex-Ruler of Swat by decision dated 5-4-1965.

7. I have examined both the judgments passed by the Courts below and find that the same are unexceptionable, legal, apt to the facts and circumstances of the case and do not call for any interference by this Court. It is settled law that the findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. The judgments impugned in all respect, are not arbitrary or fanciful and fulfil all the requirements of doing justice on the basis of canons known in this behalf the learned counsel has not been able to point out any misreading or non-reading of evidence on the part of the forums below. If an authority needed on the point, reference can be made to Abdul Hakeem v. Habibullah and 11 others (1997 SCMR 1139) wherein it was observed:-- "Before considering the contentions of the parties on merit, we would like to 'mention here that the scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. is very limited. The High Court while examining the legality of the judgment and decree in exercise of its power under section 115, C.P.C. cannot upset a finding of fact, however erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under section 115, C.P.C. if the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under section 115, C.P.C. if the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record. Having stated the above broad principles which would justify interference by a High Court with a concurrent finding of facts recorded by the Courts below, under section 115, C.P.C."

8. It is well-settled principle of law that in case the trial Court has exercised jurisdiction which is upheld by the first Appellate Court, this Court seldom interferes unless and until the discretion is exercised arbitrarily. It is also settled principle of law that this Court has very limited jurisdiction to interfere in concurrent findings of Court below while exercising jurisdiction under section 115, C.P.C. unless and until judgments of the Courts below are result of misreading or non-reading of evidence or decision of the case is in violation of parameters prescribed by the superior Courts.

9. The revision petition was filed in this Court on 17-9-2002. The order of the lower appellate Court is dated 15-6-2002. Application for obtaining copy was made on 2-8-2002 and received on 3-8-2002. In this view of the matter, the petition is barred by two days. An application under section 5 of Limitation Act (IX of 1908) for condonation of delay for filing the Revision Petition, has been moved. However, section 5 of Limitation Act is not applicable to the proceedings under section 115, C.P.C. Reliance can be placed on the cases of Muhammad Aslam and 12 others v. Faisal Nadeem and 3 others (2003 CLC 1812), Sultan Muhammad v. Muhammad Ashraf and 4 others (1991 CLC 269 Lahore) and M.E.O. and others v. Mian Sardar Shah and others (2002 CLC 1269 Peshawar).

10. The findings of the trial Court and the first appellate Court are based on elaborate, careful and correct appraisal of evidence which do not suffer from any misreading, as such, cannot be legally interfered with under section 115, C.P.C. The Civil Revision having been found bereft of merit is hereby dismissed with no order as to costs. H.B.T./81/P Revision dismissed.