2017 PLP 453 (YLRN)

AFTAB AHMED GORAR, J.

By this single order I propose to dispose of abovesaid three Civil Revision Applications as in all the three revisions the facts as well as the law involved are the same. The applicants in these Civil Revision Applications have challenged the Judgments dated 18.11.2011 passed in Civil Appeals Nos.96/2010, 97/2010 and 98/2010 by learned 1st Additional District Judge, Tando Adam whereby he dismissed the said appeals filed by the applicant and upheld the Judgment and Decree dated 28.07.2010 passed by learned Civil Judge and JM-1, Tando Adam in T.C. Suits Nos.12, 13 and 14 of 2009 whereby all the three suits filed by the applicant against the three respondents in these civil revisions respectively were dismissed. Precisely, the facts of the case relevant for the purpose of deciding these revision applications, are that the applicant in these revision applications filed aforesaid T.C. Suits alleging therein that he is owner of property bearing C.S. No.147/2, situated in Ward 'D' near Jamia Masjid Tando Adam and adjacent to his plot there is a street for exclusive use of the applicant, hereinafter called as "the street". It was further pleaded that the respondents/defendants are owners of Plot Nos.148/1, 146 and 144 respectively in the same Ward and they have affixed door of their plot/house opening in the street illegally and City Surveyor issued such Roobkari No.34 dated 09.08.2007 along with site plan in favour of the applicant / plaintiff. It was further asserted that the applicant asked the respondents to close the door in question and also served a legal notice upon them but no response was received, therefore he filed the abovesaid suits. The respondents/defendants contested the suits and filed written statement wherein they denied the allegations of the applicant. They took the plea that they had been residing in their respective houses and had been using the street since their forefathers. They further asserted that the area where both the parties are residing is a residential area but the applicant/plaintiff got approved plan of his plot for construction of a commercial building on which the respondents as well as others raised objection and filed T.C. Suit No.45/2007 and for this reason the applicant has instituted these suits to pressurize them. They also challenged the maintainability of the suits filed by the applicant and prayed for dismissal of the suits. After framing of issues, recording of evidence and hearing the learned counsel for the parties, the trial Court dismissed the suits vide Judgment and Decree dated 28.7.2010 against which the applicant filed civil appeals before the appellate Court but the same were also dismissed, hence these revision applications. I have heard learned counsel for the parties and have gone through the material available on the record. Learned counsel for the applicant contended that the impugned judgments passed by the two courts below are contrary to the facts and the law applicable in the present; that the courts below have not appreciated that City Survey Officer in his statement had stated that the location of the site is in same condition as it existed in 1926 and admittedly in the map no door existed. He further argued that the judgment of the two courts below suffer from material irregularities. He prayed for allowing the revision applications and setting aside of the judgments passed by the two courts below. Conversely, learned counsel for the respondents in these revision applications supported the impugned judgments and submitted that the findings of the two courts below are based on sound and cogent reasons. According to him, the concurrent findings of the courts below cannot be interfered with by this Court in exercise of its revisional jurisdiction under section 115, C.P.C. He further contended that the applicant had no cause of action for filing the suits, as such the trial Court as well as the appellate Court rightly dismissed the suits and the appeals respectively. He prayed for dismissal of these revisions as well. From the perusal of the record, it transpires that it has come on record that door of the house of the respondents was fixed and was being opened in the street prior to purchase of plot by the applicant. The appellant has failed to produce the registered sale deed through which he purchased the plot/house bearing C.S. No.147/2. He has not brought on record any evidence to establish that the street is part and parcel of his plot. Under the law, the applicant was obliged to have verified the area shown in the sale deed at the time of transaction which was not done by him. The applicant had asserted that the cause of action accrued to him for filing the suit against the respondents after affixation of the door in question by them which opened in the street in question, but he has miserably failed to establish in evidence that the respondents had affixed the door after the applicant had purchased his house. In the cross-examination of the respondents' side, no question was put to them about affixation of the door in the street in question after the purchase of house by the applicant. Respondents in their evidence have stated in clear terms that they have been residing in their respective houses since their forefathers when they came in Pakistan after partition and the door of their respective houses used to be opened in the street since very inception. They also deposed that except the door in question, there is no entrance in their houses. The applicant failed to shake / shatter such assertion of the respondents in cross-examination, therefore, as per settled principle of law, the same is to be accepted in toto. It has also come on record that the applicant / plaintiff purchased his plot in the year 2006 whereas the respondents have been living in their respective houses much prior to the purchase of the plot by the applicant. The respondents made categorical statement that the door in question was already in existence and used to be opened in the street. There are only bare words of the applicant that the street in question was for his sole use or that he is its owner but he has not produced any tangible evidence / material in order to establish this plea. Likewise, the applicant has also not brought any material on record to establish that the previous owner of his plot was the sole user / owner of the street in question or, for that matter, he, at any point of time, objected to the opening of the door of the respondents in the street, nor the applicant has deposed that the street in question was included in the sale deed of his property. Even the said sale deed has not been produced in evidence, nor the previous owner of his property was examined by him. As regards the plea of the applicant that the city Surveyor in Rubkari dated 09.08.2007 highlighted the doors of the houses of the respondents with red inky thereby supporting the applicant's version, it may be observed that the City Surveyor in his evidence admitted that Rubkari was prepared from the record pertaining to the year 1926. He also admitted that he had not ever visited the site which shows that the said Rubkari was issued without visiting the site and verifying the latest record, therefore, much weight could not be laid on the said Rubkari. So far as the point of maintainability of the instant civil revision applications is concerned as raised by the respondents' counsel is concerned, it would be worthwhile to point out that it is now well settled that this Court in exercise of its revisional jurisdiction, has very limited scope and the same could be exercised only in those cases where subordinate court has exceeded its jurisdiction or has declined to exercise jurisdiction or has acted in exercise of its jurisdiction in a manner contrary to law or in a manner not warranted by law. In the case reported in 2001 SCMR 798 Honourable Supreme Court held as under:- "It is now firmly settled law that findings of facts recorded by the First Appellate Court based on appraisal of evidence and raising of inferences in its discretion could not be interfered with under section 115, C.P.C. merely because a different view was also possible to be taken, therefore, the impugned judgment of the High Court suffers from want of jurisdiction." Particularly, where there are concurrent findings of the two courts below, this Court in exercise of its revisonal jurisdiction would interfere only in exceptional cases. In the case of Haji Mohammad Din v. Malik Mohammad Abdullah reported in 1994 Supreme Court 291, Honourable Supreme Court observed as under: "It is well settled law that a concurrent finding of fact by two courts below cannot be disturbed by the High Court in second Civil Appeal much less in exercise of revisional jurisdiction under section 115, C.P.C . The jurisdiction of the High Court to interfere with the concurrent finding of fact in revisional jurisdiction under section 115, C.P.C. is still narrower. The High Court in exercise of its jurisdiction under section 115, C.P.C. can only interfere with the orders of the subordinate Courts on the grounds, that the Court below has assumed jurisdiction which did not vest in it, or has failed to exercise the jurisdiction vested in it by law or that the Court below has acted with material irregularity effecting its jurisdiction in the case. Similar view was taken by the Lahore High Court in the case of Shahbaz Rasool and 4 others v. Aamir Imran and 7 others (2011 CLC 1941). I have not been able to find out any such defect / flaw in the present case, as pointed out in the above-quoted decisions. In view of the dictum laid down by the superior courts, I am of the considered view that the instant civil revisions against the concurrent findings of the two courts below fail being not maintainable, so also on merits. Consequently, all the three revision applications are dismissed in limine along with pending Misc. Applications. Above are the reasons for short order passed on 21.04.2015. SL/A-42/Sindh Petitions dismissed.