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Petitioner: SHERZADA VS Respondent: MIR MUHAMMADHonorable Justice Ijaz-ul-Hassan KhanSafeerullah Khan,Shamoon Ahmad Bajwa
2007 C L C 419
2007 C L C 419
[Peshawar]
Before Ijaz-ul-Hassan Khan, J
SHERZADA and others----Petitioners
Versus
MIR MUHAMMAD and another----Respondents
Civil Revision No.937 of 2005, decided on 10th November, 2006.
Specific Relief Act (I of 1877)---
----Ss. 8, 42 & 54---Civil Procedure Code (V of 1908), S.115---Suit for possession, declaration and permanent injunction---Plaintiffs who claimed to be owners in possession of suit property which they had inherited from original owner, had to prove their case from their own evidence and they could not be benefited from the weaknesses in the defendant's ease---Plaintiffs had produced five witnesses in support of their claim, but evidence led by them was discrepant and insufficient to lead to conclusion that they were actually successors-in-interest of original owner of suit property---Both Courts below disbelieved the version of plaintiffs for valid and sound reasons, which were not open to legitimate exception---Plaintiffs could not point out any misreading or non-reading of evidence by the courts below---Mere assertion of plaintiff that impugned judgments and decrees suffered from acute misreading and non-reading of evidence, without any positive attempt to substantiate same, was of no consequence---Concurrent finding of fact recorded by two courts below, could not be upset by High Court in exercise of its revisional jurisdiction under S.115, C.P.C., unless two Courts below while recording the finding of fact had either misread the evidence or ignored any material piece of evidence on record or the finding of fact recorded by the two courts below was perverse to the evidence on record; it only lay on the ground of error of law or error in procedure, which could have affected the decision of the case upon merits.
Sughran Bibi v. Mst. Aziz Begum and 4 others 1996 SCMR 137 rel.
Safeerullah Khan for Petitioners.
Shamoon Ahmad Bajwa for Respondents.
Date of hearing: 10th November, 2006.
JUDGMENT
IJAZ-UL-HASSAN KHAN, J.--- Facts relevant for the disposal of instant civil revision are, that Janbaz and others, plaintiffs, instituted suit against Mir Muhammad and his brother Siraj Muhammad, defendants, claiming a declaration to the effect that plaintiffs were owners in possession of suit property, detailed in the plaint, having inherited the same from their predecessor-in-interest, late Jurabaz and the entries in the Revenue Record, contrary to it, were illegal, void, fraudulent, ineffective on the rights of the plaintiffs and liable to rectification. In the alternative, the plaintiffs also sought possession of suit property in case they were not found in possession of the same. The plaintiffs further prayed for grant of permanent injunction, restraining the defendants to interfere in the possessory rights of the plaintiffs.
2. The defendants resisted the suit on all grounds legal as well as factual and denied the claim of the plaintiffs in respect of suit property. The parties were put to trial on as many as nine issues. After recording such evidence as the parties wished to adduce, learned Civil Judge/Illaqa Qazi, Buner at Daggar, vide judgment and decree dated 6-7-2004, dismissed the suit, holding that the plaintiffs have not been able to substantiate their claim by producing cogent and convincing evidence. An appeal was preferred thereagainst, which did not succeed. The same was dismissed by learned Additional District Judge, Buner at Daggar, vide judgment dated 27-4-2005.
3. Mr. Safirullah Khan Advocate, learned counsel for the petitioners, contended, inter alia, that both the judgments and decrees passed by the forums below, are tainted with illegality of misreading of' evidence and suffer from the defect of material irregularity, run counter to the evidence on the file, as such, are not sustainable at law in spite of being concurrent. The learned counsel also contended that deed, dated 26-6-1915, basis of the petitioner's claim, produced during the trial and duly exhibited, has not been appreciated in its true perspective. The learned counsel added that sufficient material was available on the file to prove that the petitioners were successor-in-interest of one Shahbaz, son of Jurabaz, original owner of suit property, which has been put at shelf and excluded out of consideration, which has resulted in manifest injustice.
4. Contrarily, Mr. Shamoon Ahmad Bajwa, Advocate, appearing on behalf of respondents, on pre-admission notice, refuted the arguments of learned counsel for the petitioners and fully supported the impugned judgments and decrees of the Courts below.
5.? 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 defendant's case.
6. The claim of the petitioners is that they are owners in possession of suit property, having inherited the same from Shahbaz son of late Jurabaz and respondents have no concern with it. The petitioners have produced five witnesses in support of their claim. The evidence led by the petitioners is discrepant and insufficient to lead to conclusion that petitioners are actually successors-in-interest of late Jurabaz, original owner of suit property. Both the Courts below have disbelieved the version of the petitioners for valid and sound reasons, which are not open to legitimate exception. Despite having been asked repeatedly to point out the evidence misread or non-read by the Courts below, learned counsel for the petitioners has remained unable to do so. The mere assertion of the learned counsel that the impugned judgments and decrees suffer from acute misreading and non-reading of evidence and cannot be allowed to remain intact, without a positive attempt on his part, to substantiate the same, is of no consequence. It is well-settled law that a concurrent finding of fact recorded by two Courts below cannot be upset by this Court in exercise of the revisional jurisdiction under section 115, C.P.C. unless the two Courts below while recording the finding of fact have either misread the evidence or ignored any material piece of evidence on record or the finding of fact recorded by the two Courts below is perverse to the evidence on record. It is well-settled that it only lies on the ground of error or law of error in procedure, which may have affected the decisions of the case upon merits. If an authority is needed on the point, reference can be made to Sughran Bibi v. Mst. Aziz Begum and 4 others 1996 SCMR 137.
Pursuant to above, finding no substance in this civil revision, I dismissed the same, with no order as to costs.
H.B.T./30/P???????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.