2010 SCMR 984 (PLP)

CH. IJAZ AHMED, J.

Necessary facts out of which the present petition arises are that Respondents Nos. l & 2/plaintiffs filed suit for recovery of possession against petitioner and respondent Nos.3 to 12/defendants of property bearing khasra Nos.92 and 93 measuring 64 yards and 2 feet shops situated at Sara-e-Saleh Haripur and also prayed for mesne profit for the use of property to the tune of Rs.1,15,200 from January, 1999 to December, 2001 @ Rs.3200 per month. The contents of the plaint reveal that respondents Nos. 1 and 2/plaintiffs are owners of suit property and predecessor in interest of petitioner and respondents Nos.3 to 12/defendants was Ghair Dakhelkar (occupancy tenant) who died before 8/9 years and inheritance was devolved upon legal heirs of petitioner and respondents Nos.3 to 12/defendants and that status of predecessor in interest of petitioner and respondents Nos.3 to 12/defendants was of tenant but he entered his name wrongly in the columns of lagan and sublet the property to petitioner/defendant No.2. Due to these wrong entries plaintiff had received no rent and defendants predecessor used to pay rent to the predecessor of the respondents/ plaintiffs but afterwards wrongly entered their name as Ghair Dakhelkar but in fact they are Dakhelkar and they even not paid a single penny to the respondents/plaintiffs as a rent while petitioner and defendant Nos.3 to 12/defendants asserted that they are owners of the suit property through inheritance of one Muhammad Nawaz and petitioner and respondent Nos.3 to 12/defendants have no concern with it. Respondents Nos.3 to 12/defendants filed written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties the trial court framed 11 issues. The learned trial court after completing legal formalities such as recording of evidence of the parties, hearing of the arguments of the counsel of the parties, decreed the suit vide judgment and decree dated 3-10-2007. The petitioner being aggrieved filed appeal in the court of Additional District Judge, Haripur who dismissed the same vide judgment and decree dated 17-6-2009. Petitioner being aggrieved filed Civil Revision No.453 of 2009 before the Peshawar High Court, Abbottabad Bench, Abbottabad which was also dismissed vide impugned judgment dated 7-12-2009. Hence the present petition.

2. Learned counsel for the petitioner submits that learned High Court had erred in law to decide the revision petition of the petitioner by misreading and non-reading of the record. He further urges that all the courts below had misread the documentary evidence particularly Exh.P.W.2/D-4 and Exh.P.W.2/D-3. He further urges that all the courts below had granted more relief as claimed by respondents Nos.1 and 2/plaintiffs in the plaint.

3. We have given our anxious consideration to the contentions of the learned counsel of the petitioner and perused the record with his assistance. The trial court had decided issue No.9 against the petitioner/defendant after proper appreciation of evidence on record as is evident from the finding recorded by the trial court in its judgment. The relevant observation is as follows:

"Revenue Record also reveals that admittedly defendants are existed in column of cultivation and further they are mentioned as Bila Lagan, but this entry in favour of defendants can not enhance their status as owners. Moreover, entries of column of Lagan, otherwise not corroborated by any evidence cannot take precedence over column of cultivation or for matter the column of ownership (PLD 1990 SC 629). In view of what I discussed above, it is carefully held that defendants are failed to prove that they are owners of suit property. Hence, therefore, issue is decided against defendants." The learned first appellate court had also re-evaluated the evidence on record by examining oral and documentary evidence and had affirmed the finding recorded by the trial court as is evident from paras.6 & 7 of the judgment of the Additional District Judge dated 17-6-2009. The learned High Court after reappraisal of the evidence on record had affirmed the concurrent conclusions arrived at by the courts below while exercising power under section 115, C.P.C. The relevant observation is as follows:

"A perusal of record would show that as per Revenue Record of 1953-54 Khasra No. 92 is entered as path but there is a change in 1958-59 in the column of cultivation by inserting the name of Muhammad Nawaz Khan, the predecessor of petitioner, as tenant and once again during the year 1967-68 the name of Muhammad Nawaz Khan got changed from tenant to Ghair Dakhelkar. Both the learned courts below have rightly held that the name of predecessor-in-interest of petitioner existed in the column of cultivation followed by subsequent entry of Bila lagan but this entry cannot change his status to be as an owner of the property. In the wake of what has been discussed above it is held that the concurrent findings of facts recorded by the learned Courts below are unexceptionable and would, therefore, not call for interference by this Court in revisional jurisdiction." As mentioned above we have also re-examined the evidence with the assistance of the learned counsel for the petitioner. We are of the view that the findings recorded by all the courts below are in consonance with the evidence on record particularly documentary evidence. It is settled principle of law that High Court had a very limited jurisdiction to interfere in the concurrent conclusions arrived at by the courts below while exercising power under section 115, C.P.C. as law laid down by this Court in Hindu Religious Endowments Board, Madras's case (PLD 1949 Privy Council 26). The relevant observation is as follows:

"The section empowers the High Court to satisfy itself upon three matters (a) That the order of the subordinate Court is within its jurisdiction (b) That the case is one in which the Court ought to exercise jurisdiction and (c) That in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matter, it has no power to interfere because it differs, however profoundly, from the conclusions of the Subordinate Court upon questions of fact or law " All the courts below had given concurrent conclusions after perusing the revenue record that petitioner and respondents Nos. 3 to 12/defendants existed in column of cultivation and further they are mentioned as Bila Lagan but it is not established that petitioner and respondents Nos.3 to 12/defendants are owners of the property in question as law laid down by this Court in Themas' case (PLD 1990 SC 629) and Shad Muhammad's case (PLD 1986 SC 91). It is settled law that courts have power to grant an effective or ancillary relief even if not prayed for. It is also settled principle of law that, generally, this Court does not interfere in the concurrent conclusions arrived at by the courts below while exercising power under Article 185(3) of the Constitution.

4. In view of what has been discussed above this petition has no force and the same is dismissed. Leave refused. S.A.K./A-16/SC Leave refused.