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Petitioner: MUHAMMAD MUNAWAR BAJWA VS Respondent: Mst. ZUBERA SHAHEEN and another
Court Name: Lahore High Court Judge(s): Muhammad Ghani Title: MUHAMMAD MUNAWAR BAJWA vs Mst. ZUBERA SHAHEEN and another Case No.: Civil Revision No,2715 of 2002 Date of Judgment:2003-12-10 Reported As: 2004 CLC 441 Result: Revision dismissed
JUDGMENT
JUDGMENT ' This revision petition is directed against the judgment and decree, dated 8th of May, 2002 whereby a learned Additional District Judge, Lahore, has dismissed the petitioner-plaintiff 's appeal against the judgment and decree, dated 17th of June, 1998 rejecting the plaint in the suit for declaration and injunction. {{PAGE CUT}} 2. " Stripped of unnecessary details, the facts giving rise to this petition are that Muhammad Munawar Bajwa, petitioner herein, filed on 27th of April, 1991, a s Kanals, 8 Marlas comp Khatuni No,195, situate Khurd, Tehsil and Dist Ghulam Muhammad and died, leaving behind a wi daughters named Mst. Namely, Liaqat Ali, resp Ali deceased equal to one it averring that a piece of land measuring 3 ised in Khasra No,784/594, Khata No,89, within the revenue estate of Mauza Chuhng ict Lahore, was owned in equal shares by Rehmat Ali, real brothers; that Rehmat Ali ow by the name of Mst. Ghulam Fatima, two ani Bibi and Mst. Maryam Bibi and a son, ndent No,2 herein; that half share of Rehmat Kanal and 14 Marlas had devolved on his legal {{PAGE CUT}} heirs; that all the four legal heirs of Rehmat Ali had jointly sold 10 Marlas of land to one Mst. Nasreen Kausar through a sale-deed registered on 28th of January, 1980 who, in turn, had sold the same to one Zulfiqar Ali in whose favour a mutation had also been sanctioned; that out of the remaining land, the legal heirs of Rehmat Ali sold one Kanal of land in favour of the plaintiff-petitioner by means of a sale-deed, registered on 11th of May, 1980 and Mutation No,1175 was also sanctioned in his favour on 26-12-1981 which sale was also given effect to in the Record-of-Rights prepared for
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the subsequent years; that a few days before the filing of the suit when the petitioner resorted to laying foundations for raising construction on the land so purchased by him, respondent No,1, along with her husband suddenly emerged, and resisted raising of construction, claiming that she had purchased one Kanal and 10 Marlas of land, including the disputed piece of land measuring one Kanal, through sale-deed, dated 26th of March, 1984 from Liaqat Ali, respondent No,1; that the plea of the petitioner that after sales in favour of Mst. Nasreen Kausar and the petitioner, share of Liaqat AR in Khasra No,784/594 was only one Marla and, therefore, the alienation in favour of respondent No,1 being beyond his entitlement was void ab initio, fell flat on respondent No,1, which gave rise to the filing of the suit by him for declaration that the plaintiff was the lawful owner in possession of the suit-land; that the sale-deed, dated 11-5-1980 and consequent Mutation No,1175 in favour of the plaintiff-petitioner were valid and lawful, whereas the subsequent sale-deed, dated 26-3-1984 in favour of defendant-respondent No,1 being based on fraud, misrepresentation, without lawful authority and without consideration, was inoperative. As a consequential relief, the plaintiff-petitioner sought injunction restraining defendant-respondent No,1 from, in any way, interfering with his possession over the suit property. 3. The defendant-respondent No,1 in her written statement pleaded that immediately after purchase of the land by her, she got the property demarcated and raised a boundary wall to the height of 4 feet around her plot; that she was in exclusive possession of the suit-land; that the plaintiff-petitioner being not in possession, his suit for a mere declaration was hit by the first proviso to section 42 of the Specific Relief Act and thus not maintainable; that Liaqat Ali, defendant-respondent No,2 was a co-sharer with Ghulam Muhammad in the joint Khata measuring 91 Kanals, 10 Marlas; that Liaqat Ali was in exclusive possession of Khasra No,784/594, measuring 3 Kanals, 18 Marlas (wrongly mentioned as 3 Kanals, 8 Marlas by the plaintiff-petitioner); that he lawfully sold land measuring one Kanal, 10 Marlas to defendant-respondent No,1 and handed over possession thereof to her; that Liaqat Ali, defendant-respondent No,2 having inherited 7/32 share from the estate of his late father, Rehmat Ali, equal to 20 Kanals, 1 Marla of land from the joint Khata and having sold 18 Kanals, 6 Marlas through various transactions jointly and severally, was still owner in the joint Khata to the extent of one Kanal, 15 Marlas and thus the sale in favour of defendant-respondent No,1 being well within his entitlement was not open to exception. It was also pleaded that the suit property was of the value of rupees seventy eight lacs and neither the suit had been properly valued nor proper court-fee had been paid, besides the fact that the plaintiff- petitioner had no real cause of action for the suit. 4. Divergent pleas of the parties gave rise to the framing of the following Issues on 2-3-1992:- (1) Whether the plaintiff is owner in possession of the property in dispute and as such entitled to the decree as prayed for? OPP. (2) Whether the impugned sale-deed in favour of the defendant No,1, dated 26-3-1984 is illegal, void, inoperative and based on misrepresentation, fraud and without lawful authority and without consideration? OPP. (3) Whether the suit is time-barred ? OPD (4) Whether the plaint is not maintainable in its present form? (5) Whether the suit is not maintainable and liable to be dismissed in view of the preliminary objection No,3 of defendant No,1 in the written statement? (6) Relief. 5. Before the learned trial Judge could proceed with the suit on merits, defendant-respondent No,1 filed two applications, one under Order VI, rule 17, C.P.C. Seeking amendment of her written statement, and the other under Order VII, rule 11, C.P.C. For rejection of the plaint. Vide order, dated 3-7-1995, the application for amendment of the written statement was allowed whereas the one for rejection of the plaint was dismissed.
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6. The contesting parties were then put to trial, and after recording their evidence, the learned trial Judge vide judgment and decree, dated 17-6-1998 by dealing with Issues 1, 4 and 5 together, held that the plaintiff-petitioner being not in possession of the suit property which was in possession of defendant-respondent No,1, first proviso to section 42 of the Specific Relief Act was attracted and the suit for mere declaration was barred, and not maintainable without seeking relief of possession. In view of findings on Issues 1, 4 and 5, it was considered unnecessary to record findings on Issues 2 and 3. Consequently the plaint was rejected by observing as follows:-- ' "In nutshell suit is not maintainable. Further proceedings in this way would be sheer wastage of time. No relief thus can be granted to the plaintiff. Since I have not reverted to the aspect of ownership of the disputed land and the plaintiff's claims that sale deed in favour of defendant No,1 be declared as void and further that learned counsel for the plaintiff has not shown any inclination even at final stage towards making necessary amendments in the relief so as to seek possession. Therefore, in such circumstances, I have come to the conclusion that suit is barred by law-thus rendering plaint as liable to be so rejected. The plaint thus stands rejected. No order as to costs." ' Feeling aggrieved, plaintiff-petitioner filed an appeal which was accepted by a learned Additional District Judge vide judgment and decree, dated 14th of April, 1999. After recording the findings that "it is not proved on record that respondent No,1 is not in possession of the land which she has purchased from Liaqat which means that she had installed boundary wall" and that "this is a suit for declaration without seeking possession of the land, whatever its extent or measurment may be" the learned Additional District Judge proceeded to remand the case to the learned trial Judge by observing as follows:-- ' "Sequel to above, leaving specific findings on each one of the issues particularly Issues Nos.1, 4 and 5, appeal is accepted and case is remanded to learned trial Court for demarcation of the land of the appellant and that of respondent No,1 in the first instance through Tehsildar, Lahore Cantt. In accordance with report of the Financial Commissioner recorded in the Rules and Orders of the Lahore High Court, Lahore. His report, (which shall be made by the Tehsildar Lahore Cantt. On the spot carrying demarcation with the help of his Revenue Staff, which must include a Girdawar/Qanungo,) shall also be subject to objections if any by the parties and the Local Commissioner also examined as C.W. After his report, question of possession of the parties on the suit land shall be determined and findings rerecorded not only on Issues Nos.1, 4 and 5, but also on Issues Nos.2 and 3." 7. Defendant-respondent No,1 challenged the aforementioned decision by means of Civil Revision No,972 of 1999 which was accepted on 7th of June, 2001 by a learned Judge of this Court, by holding as follows:-- ' "I have heard the learned counsel for the parties. Issues Nos.1, 4 and 5, relate to the maintainability of the suit filed by the respondent No,1 and it is specifically averred in the plaint that the plaintiff is in possession of the suit property, thus, no consequential relief for possession was sought. However, from the evidence on the record, the learned trial Court has reached to a conclusion that the respondent No,1 is not in possession, therefore, his suit is hit by the first proviso to section 42 of the Specific Relief Act. The learned Appellate Court has not adverted to this aspect of the matter, but for erroneous reasons, has gone beyond the scope of the controversy between the parties and has observed that the matter between them can be resolved through demarcation. In the instant case, the question of demarcation of the plot in dispute has no relevance. Towards the object to resolving the issue about the maintainability of the suit, it is evidence on the record, which was duly led by the parties, to be taken into consideration and to decide the relevant issues. It may not be out of place to mention here, that even it has not been the case of the respondent that the demarcation of the property, is required, though to ascertain the position of possession, a local
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commission was appointed by the trial Court, but it was not with an intent for the purpose of demarcation. ' In the light of above, the learned Appellate Court has committed a material irregularity and has erroneously exercised its jurisdiction in accepting the appeal of the respondent and remanding the case to the Court below. Therefore, this petition is allowed. The impugned judgment and decree is set aside. The case is remanded to the learned Court in appeal for decision on all the relevant issues on the basis of evidence on the record. No order as to costs". Pursuant to above decision and the order of remand. a learned Additional District Judge, Lahore, vide his impugned judgment and decree, dated the 8th of May, 2002, dismissed the plaintiff- petitioner's appeal by holding that he had failed to prove Issues 1 and 2 inasmuch as the sale in favour of defendant-respondent No,1 was not in excess of the entitlement of the vendor in the joint Khata and, therefore, it was not open to any valid exception, and by finding Issues 4 and 5 in favour of defendant-respondent No,1, he has upheld the trial Court's finding that the suit of the plaintiff- petitioner was hit by the first proviso to section 42 of the Specific Relief Act, since the plaintiff- petitioner is not in possession of the suit land and the suit for mere declaration, without seeking the relief of possession, in the circumstances, was not maintainable. Hence this revision petition. 8. I have heard the learned counsel for the parties and have scanned through the record. 9. At the outset learned counsel for respondent No,1 raised objection to the maintainability of the revision petition by contending that concurrent findings of facts are not open to scrutiny in revisional jurisdiction. Reliance in support of the objection has been placed on Abdul Majid v. Khalil Ahmed PLD 1955 FC 38, Noor Muhammad v. Namdar PLD 1969 Lab. 105, Abdul Rehman Bajwa v. Sultan PLD 1981 SC 522, Hussain Ali Chandio v. Secretary, Ministry of Communication 1985 SCMR 1735, Muhammad Bashir Ali v. Ghulam Mohy-ud-Din 1996 SCMR 813 and Jam Balli v. Mehar Khan 2003 SCMR 1013. 10. In Abdul Majid v. Khalil Ahmed PLD 1955 FC 38 an erroneous approach in appraising the evidence, unless resulting in a material mistaken assumption, was held not to justify interference in second appeal, let alone in revisional jurisdiction. In the cited case, it was authoritatively laid down at page 41 of the Report as follows:- ' "It is obvious that what the learned Judges intended to say was that for the reasons stated by them the Courts below should not have accepted the evidence which they did, and they seem to have assumed that a fallacious method of approaching the evidence is, in second appeal, a good ground for upsetting a finding of fact based on such evidence. With great respect, I am unable to agree with this view, because a fallacy in appraising the evidence as to a fact, unless it amounts to a material mistaken assumption, is merely an error in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal. I had the occasion to examine this question recently in the Lahore High Court in Nadir Shah v. Lal Shah and others [PLR (1954) 595] where referring to the leading authorities of the Privy Council on this subject I held that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits. I adhere to that opinion which was based on the Privy Council decisions in Durga Chowdhrani v. Jewahir Singh Chowdhri ILR 18 Cal. 23 and Wald Muhammad v. Muhammad Bakhsh 11 Lah. 199 which lay down this proposition in clear and unmistakable terms. It is not suggested that there was in the present case any "error in the procedure provided by law", nor that there is any rule of law prescribing the manner in which evidence in such cases has to be judged which was contravened by the Court of First Appeal which is the final Judge of facts. The circumstances that the sale deeds contained no recital as to necessity, that the alienations were old sales, that the alienee was dead at the time of the suit and
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that the vendor was leading the life of a country gentleman and not that of a debauch or wastrel, had all been duly considered by the Courts below in arriving at their conclusions, and assuming that the High Court did not agree with the lower Courts appreciation of the evidence, that could not be a ground for it to reverse the concurrent findings of fact of the lower Courts. In my opinion, the High Court had no jurisdiction to entertain the second appeal on this ground, and it exceeded its functions in interfering with those findings". In Noor Muhammad v. Namdar PLD 1969 Lah. 105, a learned Single Judge of this Court, while seized of a revision petition arising out of an application under section 383 of the Successions Act, had observed as follows:-- ' "The Administrative Civil Judge has decided the questions of fact raised before him and whether he has decided the same rightly or wrongly, he had jurisdiction to decide the case and even if he has decided wrongly, no case is made out under section 115 of the Code of Civil Procedure. I, therefore, decline to interfere". ' In Abdul Rehman Bajwa v. Sultan PLD 1981 SC 522 where an order of acquittal passed by a Magistrate was set aside by a learned Additional Sessions Judge in the exercise of his revisional jurisdiction, the order was challenged in writ jurisdiction, and a learned Judge of this Court, by accepting the writ petition, declared the order of the learned Additional Sessions Judge to be without lawful authority and of no legal effect, thereby restoring the order of acquittal. The order of this Court was challenged before the Hon'ble Supreme Court. It was in this background that the following observations were made in paragraph 11 of the judgment:-- ' "The question of jurisdiction of the High Courts under Article 199, has come under consideration in a number of cases before this Court and it has been repeatedly held that if a Court or Tribunal set up under the ordinary law has the jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect, or is not one at which the High Court would have arrived, does not render the decision without jurisdiction". ' While advancing the argument based on the cases of Noor Muhammad and Abdul Rehman Bajwa (supra), learned counsel for respondent No,1 has lost sight of the subsequent case reported as Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal PLD 1987 SC 447 where at page 452 of the Report the law has been declared in the following terms:-- ' "It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction". ' Moreover, in Hussain Ali Chandio v. Secretary, Ministry of Communication 1985 SCMR 1735 by relying on an earlier decision reported as Nawaz v. Additional Settlement and Rehabilitation Commissioner PLD 1970 SC 39 it was held that even while exercising Constitutional jurisdiction the High Court is quite competent to interfere with a finding of fact if the same is "based on no evidence or is based on a cofnplete misreading of the evidence". In Muhammad Bashir Ali v. Ghulam Mohy-ud-Din 1996 SCMR 813, it was held that "revisional powers under section 115, C.P.C. Are primarily intended for correcting errors made by subordinate Courts in exercise of their jurisdiction" and that "ordinarily erroneous decisions of fact are not revisable, except in case where decision is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result therefrom". In Jam Balli v. Mehar Khan 2003 SCMR 1013 leave was refused by observing
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that concurrent findings of fact by three Courts below including High Court did not suffer from any legal or factual infirmity or jurisdictional error". 11. A very lucid and clear statement of law about the limits of revisional jurisdiction of the High Court qua concurrent findings of facts recorded by lower Courts appears in the case reported as Abdul Hakeem v. Habibullah 1997 SCMR 1139 wherein it was inter alia held as follows:-- ' "Before considering the contentions of the parties on merit, we would like to mention here that the scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. Is very limited. The High Court while examining the legality of the judgment and decree in exercise of its power under section 115, C.P.C. Cannot upset a finding of fact, however erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under section 115, C.P.C. If the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under section 115, C.P.C. If the approach of the Court below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record". ' "This process of examination of evidence for upsetting a concurrent finding of fact in exercise of powers 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 and 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. Has to attend to the reasons given by the Court below in support of such finding and misreading, non-reading or perverse appreciation of evidence has to be discovered in the reasonings of the Courts below to justify interference in exercise of its revisional jurisdiction". 12. Doubtless, wrong or erroneous conclusion on a question of fact by the Courts below is not open to interference in the exercise of jurisdiction under section 115, C.P.C. The fact that a more persuasive, a more reasonable or a more convincing view of the evidence is possible is also not a valid ground for interference with a concurrent finding of fact recorded by the Courts below. Reappraisal and reassessm ent of the evidence in the case cannot be made the basis for discarding a finding of fact, and the fact that another view of evidence is possible cannot also be a ground for interference with a concurrent finding of fact, but interference is permissible in revisional jurisdiction with a finding of fact if the finding is found to be suffering from misreading of evidence; or it has resulted due to non-consideration of important and material evidence; the finding is the result of perverse appreciation of evidence on record; it is based on no legal evidence, but on surmises and conjectures, it is based on inadmissible evidence; there is an error or defect in the procedure which has introduced an error or defect in the decision on merits; and the Courts below have acted illegally inasmuch as the decision rendered is against a particular provision of law, or a principle of law has been violated, or it is against the law declared by the superior Courts. 13. Keeping in mind, the afore-stated broad principles which may justify interference by this Court with concurrent findings of facts recorded by the Courts below, I proceed to examine whether there is any justification for interference by this Court with the concurrent findings of facts recorded by the Courts below. In support of his case, the plaintiff-petitioner produced Maqbool Ahmed (P.W.1)
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who admitted in the cross-examination that the plaintiff-petitioner had purchased land out of a Khasra number which was a part of joint Khata, though he denied the suggestions that Liaqat Ali was owner to the extent of 20 Kanals out of joint Khata, and that after all the alienations made by him, he was still the owner to the extent of one Kanal, 15 Marlas in the joint Khata. Farhat Munawar Bajwa (P.W.2) a son and a Special Attorney of the plaintiff-petitioner, conceded in the cross- examination that Ghulam Muhammad on the one hand, and Liaqat Ali, his mother and sisters on the other, were co-owners in the entire joint Khata, though he denied the suggestions that the joint Khata consisted of 91 Kanals, 10 Marlas of land, out of which Liaqat Ali had 7/32 share equal to 20 Kanals, 1 Marla and that Liaqat Ali had sold only 18 Kanals, 6 Marlas therefrom. The statement of Hafeez-ur-Rehman (P.W.3) is of no real consequence qua the controversy involved herein. ' On the other hand, defendant-respondent No,1 produced NaibTehsildar Fakhar Ahmed Khan (P.W.1) who had visited the spot and acted…
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