1998 PLP 1794 (CLC)

(5) Whether the land in dispute has wrongly and fraudulently been entered in the relevant Revenue Record in the names of the defendants Nos. l to 35? (6) Whether the plaintiffs are entitled to the decree as prayed for? (7) Relief.

6. In support of their claim petitioners produced P.W.1 Murad Bakhsh who produced the judgment dated 10‑9‑1988 passed by Member Board of Revenue Balochistan as Exh.l, P.W.2 Nizaullah, P.W.3 Mohim Khan P.W.4 Sher Zaman who tendered Order dated 31‑12‑1980 passed by Additional Commissioner Quetta as Exh.2, P.W.5 Ali Khan, P.W.6 Muhammad Amitawho tendered revenue record of the suit land and map as Exh.3 and Exh.4, P.W.7 Abdul Qayyum, P.W.8 Nazar Muhammad, P.W.9 Muhammad Yakub who produced sanad/sale documents of the suit land marks P.1 to P.6. Petitioner No. l appeared as Attorney for all the petitioners.

7. In rebuttal respondents produced D.W:1 Murad Bakhsh who produced judgment of the Member Board of Revenue, dated 10th September, 1988 as Exh.D.l. D. W.2 Muhammad Raza, D. W.3 Musa Khan, D. W.4 Lal Muhammad and statement of respondent No. l was recorded as Attorney for all the respondent.

8. After assessing the evidence on record, the learned Civil Judge‑I, Quetta dismissed the suit vide judgment and decree dated 30‑3‑1995. On appeal before Additional District Judge II, Quetta the same was set aside and the case was remanded to Civil Judge‑I, Quetta with directions to determine as to which of the parties is in possession of the suit land. After a remandent, the learned Civil Judge‑I Quetta after hearing the parties again dismissed the suit vide judgment and decree dated 30‑10‑1996. Being aggrieved from the same, petitioners filed an appeal before District Judge, Quetta who transferred the same to Additional District Judge‑II, Quetta who dismissed the appeal vide judgment dated 30‑5‑1997; hence this petition as mentioned hereinabove.

9. Mr. S.A.M. Quadri, Advocate for the petitioner contended: (i) That the petitioners had proved their possession through oral and documentary evidence but the Courts below have misread and misappropriated the same causing prejudice to the case of the petitioners. (ii) That non‑challenging of the orders of the Revenue authorities does not make difference as the order passed by the Member Board of Revenue is a void Order. (iii) That since the property is not partitioned and the petitioners are in possession, thus no limitation would run against them.

10. In rebuttal, Mr. Azizullah Memon, Advocate stated that: (i) The Courts below rightly dismissed the suit of the petitioners as the evidence produced by them is not consistent with the plaint and the sanads/sale documents do not pertain to the suit land. (ii) That the suit was not competent under section 42 of the Specified Relief Act as the petitioners have failed to prove their possession over the suit land. (iii) The suit was hopelessly barred by time and liable to be dismissed. The orders of the Settlement Authorities were not challenged which had attained finality. (iv) There are concurrent findings of facts which cannot be interfered in revisional jurisdiction in absence of any misreading or jurisdictional error.

11. Adverting to the arguments of Mr. S.A.M. Quadri, Advocate for the petitioners, it may be mentioned that the petitioners produced oral and documentary evidence in support of their contention. The Courts below have discarded the evidence and have concurrently held that the petitioner was out of possession at the time of filing of the suit. Highlighting the evidence of the petitioners, P.W.2 stated that he has seen the suit land and the father of the petitioners purchased the same from Mashwani Tribesmen about 45 years back and now the suit land is in possession of the petitioners and has also given the boundaries of the suit land. In cross‑examination he stated that the property was purchased after partition and at the time of sale he was not present and he heard about the said sale and stated that at the time of settlement operation, the predecessor‑in‑interest of the petitioners was very much present. P.W.3 stated that the suit land was purchased by Abdul Hakeem, predecessor‑in‑interest of the petitioners from Rehman Dil, Sher Dil and Abdul Khalique about 45 to 50 years ago and since then the petitioners are in possession of the same. In cross-examination he stated that he was not present at the time of sale. P.W.5 stated that he has seen Abdul Hakeem and his son in possession of the suit land since his childhood. In cross‑examination he stated that the suit land is about four or five acres and gave boundaries of the property in dispute and further stated that the property was purchased by the predecessor‑in‑interest of the petitioners from Mulla Wazeer, Ghazi Khan, Hazar Khan and Abdul Khaliq and stated that he was not present at the time of sale. P.W.8 stated that his father Ghaus Muhammad sold the suit land to Abdul Hakeem predecessor‑in‑interest of the petitioners and since then they are in possession of the suit land and stated that he has not seen the suit land himself. P.W.9 stated that marks P.1 to P.6 i.e. sanad/sale documents were written by his father. After appraisal of the statements of the aforesaid witnesses, it may be mentioned here that the boundaries mentioned by P.W.2 and P.W.5 are different. P.W.3, P.W.5 and P.W.6 have given names of different persons who have sold the suit land to the presdecessor‑in‑interest of the petitioners. Statements of the said witnesses being inconsistent with the contents of the plaint and have not corroborated each other, the, same have rightly been rejected by the Courts below and from the said statements possession of the suit land has not been established as rightly held by the Courts below.

10. Now reverting to the next limb of arguments of that learned counsel for petitioner that the documentary evidence was not considered by the Courts below, it may be observed here that the petitioners produced marks P.1 to P.6, sanad sale documents in respect of the suit land. From Urdu translation of the sale deeds filed by the petitioner in transpires that all the properties were purchased by Haji Abdul Hakeem, presdecessor‑in‑interest of the petitioners. From perusal of the same it reveals that the boundaries given in all the sale documents are almost the same which did not correspond with the boundaries given by P.W.2 and P.W.5, in as much as the boundaries of the suit land given by the Attorney of the petitioners is altogether different, and the vendors mentioned in sanad/sale‑deeds i.e. P.1 to P.6 are totally different persons except for one or two persons whose names have been mentioned by the witness for instance in Mark P.1 the vendor is Niaz Muhammad. None of the witnesses has stated that the property was purchased by Niaz Muhammad. In Mark P.2 vendors Ghazi Khan, Lal Muhammad, Sher Jan, Syed Qadir, Juma Shah, Syed Shah Saleh Muhammad, except for Ghazi Khan none of the witnesses has mentioned names of the other persons. In mark P.3 Agha Muhammad and Najmuddin are shown to be vendors but their names have not been mentioned by the witnesses as vendors and similarly Marks P.5 to P.6 are also executed by person other than those mentioned by the witnesses. From the perusal of the documentary evidence it appears that the petitioners have even failed to show that the same are in respect of the suit land. It is a settled principle of law that powers of the High Court in revisional jurisdiction under section 115, C.P.C. are very limited. On reappraisal of the evidence even if a different view is possible, the High Court cannot substitute its own view and upset the finding of facts concurrently arrived at by the Courts below. Such findings can only be interfered with if the Courts below have misread the evidence on record or have committed any jurisdictional error.

11. Mr. S.A.M. Quadri, Advocate failed to point out any misreading of oral or documentary evidence, thus, the impugned judgment and decrees passed by the Courts below do not warrant interference. Reliance is placed on Abdul Hakeem v. Habibullah and others, 1977 SCMR 1139 wherein it was observed:‑‑ "The above reasoning of the learned Chief Justice does not show that the reasons given by the Courts below in support of their conclusions were taken not of by the High Court and were found suffering from misreading of material evidence on record. The learned Chief Justice, in fact, re‑assessed the entire evidence on record and then discarded the conclusions of the Courts below as they were found inconsistent with his own assessment of evidence. The process of examination of evidence for upsetting a concurrent finding of fact in exercise of power under section 115, C.P.C. in our view is neither permissible nor warranted by law. As earlier pointed out by us, interference with a finding of fact by the Courts below by the High Court in exercise of its revisional jurisdiction under section 115, C. P.C. could only be justified if such finding is found to be suffering from misreading of evidence or non‑consideration of important on material evidence or the finding is the result of perverse appreciation of evidence on record. A wrong or erroneous conclusion on a question of fact by the Courts below is not open to interference by the High Court in exercise of its jurisdiction under section 115, C.P.C. We may also mention here that the High court while examining a concurrent finding of fact recorded by the Courts below in exercise of its jurisdiction under section 115, C.P.C. as to attend to the reasons given by the Courts below in support of such finding and misreading, non‑reading or perverse appreciation of evidence has to be discovered in the reasonings of the Court below to justify interference in exercise of its revisional jurisdiction. We have already reproduced the reasons given by the First Appellate Court while concurring with the conclusion of the Trial Court. The learned Chief Justice while disagreeing with the conclusions of the Courts below did not take into consideration the reasons given by the First Appellate Court for agreeing with the findings of Trial Court to determine whether any misreading was committed by the Courts below in assessment of evidence on record. On the contrary the learned Chief Justice himself undertook re‑assessment and re‑appraisal of the evidence in the case and the conclusions drawn by him on the basis of such re?appraisal of evidence were made the basis for discarding the finding of fact re‑corded by two Courts below. The fact that the view taken by the learned Chief Justice of the evidence in case is more persuasive, reasonable or convincing could not be a valid ground for interference with the concurrent finding of fact recorded by the Courts below. We have ourselves examined the reasonings of the two Courts below in support of their conclusions and were unable to find any misreading, non‑reading or perverse appreciation of evidence by them. The fact that another view of evidence is possible cannot be a ground for interfering with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction."

12. Reverting to the argument that the suit in present form was not maintainable in view of section 42 of the Specific Relief Act, it may be added here that as already observed the petitioners have failed to prove their possession and ownership over the property in dispute and had only filed a suit for declaration without seeking consequential relief. The same was rightly held as not maintainable by the Courts below, and the relief of declaration being discretionary could not be granted which would be ineffective and futile.

13. Besides the above observations even otherwise the suit filed by the petitioners was hopelessly barred by time, the petitioners did not given any cogent reasons for not challenging the revenue entries within the prescribed period as they were very much present at the time of final attestation by the Settlement Officer. As far as non‑challenging of orders of Member Board of Revenue is concerned, it may be stated that the same has obtained finality and respondent have acquired a vested right with the passage of time. The arguments of Mr. S.A.M. Quadri, Advocate that the said orders are void and need not be set aside; is without any force. The learned counsel failed to show as to how the order of Member of Revenue is void as the petitioners themselves chose to challenge the revenue entries before the Revenue hierarchy.

14. Thus in my considered opinion the impugned judgments being unexceptionable is not amenable to any interference by this Court in exercise of revisional jurisdiction under section 115, C.P.C. The petition being devoid of merits is dismissed with not orders as to costs. H.B.T./717/Q?????????????????????????????????????????????????????????????? Petition dismissed.