2005 PLP 2370 (YLR)

Facts relevant for the disposal of instant revision are, that Khadim Muhammad and Wali Muhammad Plaintiffs instituted suit on 30-7-1999 against Tilla Muhammad and Noor-ur-Rehman, defendants for declaration to the effect that plaintiffs were owners of suit-land by virtue of purchase from defendant No.1 on the basis of unregistered sale-deeds, dated 30-5-1968 and 18-4-1982 and entries in the Revenue Record, contrary to it, were incorrect, ineffective on the rights of the plaintiffs and liable to rectification. The plaintiffs also prayed for grant of permanent injunction restraining the defendants to transfer or alienate the suit property in any manner.

2. The suit was resisted and the allegations of the plaintiffs were denied. The parties were put to trial on following issues:-- (1) Whether the plaintiffs have got cause of action? (2) Whether the plaintiffs are owners in possession of the suit property and the Mutations Nos.972, 973, 974 and 975 in favour of defendant are wrong, illegal and ineffective upon the right of the plaintiffs? (3) Whether the suit is within time? (4) Whether the plaintiffs are estopped to sue? (5) Whether the plaintiffs are entitled for the decree as prayed for? (6) Relief.

3. After recording evidence pro and contra, learned Civil Judge Lahore, by judgment and decree, dated 10-12-2003 dismissed the suit holding that plaintiffs have not been able to substantiate their claim and mutations in question in favour of defendants and their legal heirs had been correctly attested in accordance law. Issue No.3, pertaining to jurisdiction, was also decided against the plaintiffs and suit was found barred within the meaning of Article 120 of the Limitation Act. An appeal was filed there against, which was dismissed by learned Additional District Judge, Lahore, by judgment, dated 6-7-2004.

4. Syed Muhammad Haleem Advocate, for the petitioners vehemently contended that the impugned judgments and decrees of the Courts below are outcome of misreading and non-reading of evidence and cannot be allowed to remain intact. He also maintained that omission on the part of the learned trial Judge to record statement of Tilla Muhammad, respondent has materially prejudiced the rights of the petitioners and resulted in manifest injustice. It was also submitted that sale consideration of suit property was paid in full by the petitioners and possession was delivered to them but this fact was totally ignored by the Courts below which has resulted in complete failure of justice. In the last limb of arguments, it was reiterated that suit was filed well within time and the Courts below were not justified to treat the same as barred by time. In this regard reliance was placed on Fateh Ali Shah and others v. Muhammad Bakhsh and others (AIR 1928 Lahore 516) and Ghulam Muhammad Khan and others v. Samundar Khan and others (AIR 1936 Lahore 37).

5. Contrarily, Mr. Shamoon Ahmad Bajwa Advocate, learned counsel for respondents submitted that both the Courts below have rightly considered the matter and have correctly exercised their jurisdiction. No misreading or non-reading has been asserted or pointed out, in absence of which no interference can be made in revisional jurisdiction of this Court.

6. There is no cavil to the proposition of law that revisional Court has jurisdiction to correct error resulting from non reading, misreading of evidence of where the Courts below fail to exercise the jurisdiction vested in them.

7. It is well-settled principle of law that in case the trial Court has exercised jurisdiction which is upheld by the first Appellate Court, then 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 Courts 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.

8. It is common ground between the parties that suit-land is 'Shamilat-e-Deh' and names of Tilla Muhammad respondent and his sister Mst. Noorul Huda find place in the column of cultivation. It is evident from the record that Mutation No.5841 was entered on 21-9-1967 and rejected on 17-9-1967. Likewise, Mutation No.7812 was entered on 7-4-1982 and rejected on 21-9-1983. Both the mutations were rejected due to non-appearance and non-prosecution by the petitioners. No effort seems to have been made by the aggrieved party to approach the Court concerned for redressal of its grievance. This long silence on the part of the petitioners is not without significance. Both the forums below have rightly came to the conclusion that the onus to substantiate the claim was heavily placed on the petitioners but they have failed to discharge the same by producing cogent and concrete evidence and the petitioners cannot be allowed to take benefit of the weakness, if any, of their adversary. The mere assertion of the petitioners that they had become owners of suit property by virtue of purchase from respondent No.1, without a positive attempt on their part to substantiate the same, is of no consequence. It is true that Tilla Muhammad respondent has not appeared in Court but it is equally true that his son Muhammad Shakir entered in the witness-box as D.W.1 and stated that the deeds Exh.P.W.4/2 and Exh.P.W.4/3 are fabricated and do not contain the signature of his father. They are in continuous possession of property in dispute and suit has been filed within sinister purpose. The mere fact that Tilla Muhammad is seller of property in suit as well as writer of the deed in question, by itself, is not sufficient to doubt his credentials.

9. In view of the above, I am of the considered view that the finding of fact recorded by the trial Court and affirmed by the Appellate Court are based on correct and careful appraisal of evidence and the grounds urged stand conclusively' determined by the judgments of the Courts below. The trial Court as well as the Appellate Court have discussed every aspect of the case and dealt with the same in detail, leaving no room for further consideration. The Courts below while dismissing the plaintiffs' suit due to insufficiency of evidence, neither committed any misreading of evidence nor omitted from consideration any material piece of evidence on record nor appreciation of evidence by them could be described as perverse, so as to warrant interference by this Court under section 115, C.P.C. In this view of the matter, I am fortified by the observations made in PLD 2000 SC 839 and 1997 SCMR 1139. In the result and for the foregoing reasons, finding no force in this revision petition, I dismiss the same with no order as to costs. H.B.T./451/P Revision dismissed.