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Petitioner: MUHAMMAD IDREES VS Respondent: AMIR SAIDHonorable Justice Ijaz-ul-Hassan KhanMuhammad Zahoor Qureshi,Haji Muhammad Zahir Shah
2007 C L C 1385
2007 C L C 1385
[Peshawar]
Before Ijaz-ul-Hassan Khan, J
MUHAMMAD IDREES and others----Petitioners
Versus
AMIR SAID and others----Respondents
Civil Revision No.881 of 2006, decided on 14th May, 2007.
(a) Civil Procedure Code (V of 1908)---
----S. 115---Revision---Scope of S.115, C.P.C. is limited, and as such, High Court cannot interfere in its revisional jurisdiction with the concurrent findings on a question of fact, rendered by the Courts below, unless it finds misreading and non-reading of evidence therein.
Muhammad Saleem Shah and 80 others v. Aziz-ur-Rehinan Shah and 43 others PLD 2002 SC 280 ref.
(b) West Pakistan Land Revenue Act (XVII of 1967---
----S. 54---Specific Relief Act (I of 1877), S.11---Suit for possession and mesne profits---Revenue Record---Presumption---Strong presumption of truth is attached to the Revenue Record in terms of S.54, West Pakistan Land Revenue Act, 1967, for the rebuttal of which strong and cogent evidence is required---Mere assertion that defendants remained in possession of suit-land for enjoying its usufruct in lieu of performance of duty of Imamat in the village mosque, without payment of any rent, without a positive attempt on their part to substantiate the same, was of no consequence.
(c) Civil Procedure Code (V of 1908)---
----O. VI, R.1 &.O.XIV, R.1---Specific Relies' Act (I of 1877), S.11---Suit for possession and mesne profit---Plea of defendants as `Serai. Khor' of land suit had not been taken in the written statement---Defendants had moved application before the trial Court as well as before the appellate Court, seeking amendment in the written statement, so as to include the said plea in the written statement and applications were rejected for valid reasons---Court, however, had not prevented the parties from leading evidence at the trial with regard to the question of `Serai'---Non-framing of specific issue in such circumstances was inconsequential---If the issues were not framed but allegations made in the plaint were challenged in the written statement and court had allowed evidence to be led, then a decision rendered without framing of` issues was not illegal.
Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 fol.
(d) Civil Procedure Code (V of 1908)---
----O. XLI, R.31---Appellate Court having given its findings on all points of controversy and no prejudice seemed to have been caused to the defendants, giving of issue-wise finding by the appellate Court was not the requirement of O.XLI, R.31, C.P.C.
Umer Din v. Ghazanfar and 2 others 1991 SCMR 1868 ref.
(e) Civil Procedure Code (V of 1908)---
----O. XLI, R.25---Powers under R.25, O.XLI, C.P.C. are discretionary and, as such, where, despite absence of an issue on a particular point, the parties had led evidence with regard to it, or where the lower court had given a finding on the point despite the absence of a correct issue respecting it or where though no specific issue was raised, the matter was decided without objection or where despite absence of an issue, the parties had understood each other's case or where the entire evidence was available on record or where the appellate court could itself come to a decision on the point, remand under O.XLI, R.25 would not be ordered.
(f) Civil Procedure Code (V of 1908)---
----S. 115---Revision---Interference by High Court---Scope anal extent.
Both the courts below had given exhaustive judgments after due appraisal of evidence on the file and after adjudging the matters from all angles. There appeared to be no legal defect in their judgments, which were in consonance with the evidence on the file. Conclusion of facts arrived at concurrently by both the lower courts was not open to challenge in civil revision, particularly when no specific misreading or non-reading of evidence had been pointed out.
There was a concurrent finding of facts against the petitioners and the High Court in exercise of its revisional jurisdiction would not interfere in the concurrent findings of the Courts below. Petitioners had not been able to point out that impugned judgments and decrees of the courts below being opposed to evidence on the file and the law applicable were not sustainable. Petitioners could not point out any illegality or jurisdictional defect in the impugned judgments and decrees and failed to persuade the court to interfere with the same. The civil revision having been found destitute of substance, was dismissed.
Muhammad Zahoor Qureshi for Petitioners.
Haji Muhammad Zahir Shah for Respondents.
Date of hearing: 7th May, 2007.
JUDGMENT
IJAZ-UL-HASSAN KHAN, J.--- Facts necessary for the decision of this civil revision are, That Amir Said and his brother Said Fazal Hussain Shah, plaintiffs instituted suit against Fazal Maula and others, defendants, for possession of suit-land and recovery of mesne profit at the rate of 500 per month for the last three years. The entries in the "Khasra Girdawari" in the name of Fazal-e-Karim son of Shah Said, were also challenged. It was averred in the plaint that plaintiffs are owners of suit-land and with their permission and consent, defendants used the same for the purpose of Dunghil (Deran) and that defendants were asked to vacate suit-land but they declined to do so, which necessitated the filing of suit.
2. Muhammad Idrees, arrayed as defendant No.12, appeared in Court and contested the suit on all grounds, legal as well as factual denying the claim of the petitioners and asserting his own. The remaining defendants did not join the proceedings and they were held ex parte. The parties were put to trial on the following issues:--
(1) Whether the plaintiffs have got cause of action?
(2) Whether the suit is bad in its present form?
(3) Whether the plaintiffs are estopped to sue'?
(4) Whether the suit is within time?
(5) Whether the plaintiffs are entitled to mesne profit if so, at what rate?
(6) Whether this Court has got jurisdiction`?
(7) Whether the defendants are owners in possession of suit property'?
(8) Whether the plaintiffs had given suit-land to defendants for using as place of Deran?
(9) Relief.
3. After hearing arguments of learned counsel for the parties and taking into consideration the material available on the record, learned Civil Judge, Lahore seized of the matter, partially allowed the suit to the extent of possession of suit-land by judgment and decree dated 7-7-2004. However, claim of the plaintiffs for recovery of mense profit was not accepted. An appeal was preferred thereagainst, which did not succeed. The same was dismissed by learned Additional District Judge Lahor, Swabi, through, judgment dated 28-4-2006.
4. Feeling aggrieved thereby, Muhammad Idrees and his sisters Mst. Gul Wara and Mst. Zeenat-ul-Wara, petitioners, have filed instant civil revision under section 115, C.P.C. assailing the concurrent findings of facts recorded by the Courts below.
5. Mr. Muhammad Zahoor Qureshi, Advocate for the petitioners, bitterly criticised the impugned judgments and decrees of the Courts below and contended with vehemence that same are the outcome of misreading and non-reading of evidence; that non-acceptance of the applications of the petitioners moved under Order VI, rule 17, C.P.C. for amendment in the written statement, has materially prejudiced the cause of the petitioners; that issues framed in the case do not fully ret7ect the pleadings of the parties and that the requirements of Order XLI, rule 31, C.P.C. have not been complied with. Concluding the arguments, learned counsel prayed that on acceptance of this civil revision, the case may be remanded to the trial Court for decision afresh alter giving permission to the petitioners to amend their written statement so as to include the plea that petitioners remained in possession of suit-land for enjoying its usufruct in lieu of performance of duties of "Imamat" in the village mosque without payment of any rent. Following judgments were relied upon by learned counsel in support of his contentions: -
Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345, Azizur Rehman and another v. Atai Khan (represented by his heirs) and 6 others PLD 1976 Pesh. 60, Muhammad Atiq and others v. Tayubuddin and others PLD 1998 Pesh. 47 and Haji Muhammad Bashir and others v. Mst. Zardan Bi widow and others 2001 CLC 784.
6. Haji Muhammad Zahir Shah, Advocate for the answering respondents, on the other hand, supported the impugned judgments and decrees of the Courts below maintaining that the trial Court as well as Appellate Court adverted to every aspect of the case, rightly deciding the issues agitated and rendered reasonable judgments, which are not amenable to the revisional jurisdiction of this Court. The scope of section 115, C.P.C. is limited and, as such, this Court cannot interfere in its revisional jurisdiction with the concurring findings on a question of fact, rendered by the Courts below, unless it finds misreading and non-reading of evidence therein. To substantiate the contentions, reliance was placed on Muhammad Saleem Shah and 80 others v. Aziz-ur-Rehman Shah and 43 others PLD 2002 SC 280.
7. The dispute relates to land measuring 1 Kanal, 16 Marlas, located in Khasra No.533, situated in the area of Mauza Yaqoobi, Tehsil Lahor, District Swabi. The claim of the plaintiffs is fully supported by oral as well as documentary evidence. Per "Fard Jamabandi" for the year 1999-2000 (Exh.P.W.1/1), .the land in dispute is entered in the names of plaintiffs while Fazle Karim is mentioned as "chair Dakhilkar". It needs no reiteration that a strong presumption of truth is attached to the Revenue Record in terms of section 54 of West Pakistan Land Revenue Act (XVII of 1967, for the rebuttal of which strong and cogent evidence is required, which is missing in the present case. The mere assertion of the petitioners that they have remained in possession of suit-land for enjoying its usufruct in lieu of performance of duty of "Imamat" in the village mosque, without payment of any rent, without a positive attempt on their part to substantiate the same, is of no consequence. The evidence produced by the petitioners is discrepant and suffers from serious infirmities. Muhammad Idrees examined during the trial as (D.W.1) clearly stated in his cross-examination that:--
Likewise, it has come in the cross-examination of Gul Nawas (D.W.2) that:
8. So far as the question regarding non-compliance of .the provisions of Order VI, rule 1 and Order XIV, rule 1, is concerned, I find that the plea of the petitioners as "Serai Khor" of land in suit has not been taken in the written statement. The petitioners moved application before the trial Court as well as before the appellate Court, seeking amendment in the written statement, so as to include the aforesaid plea in the written statement and applications were rejected for valid reasons. It may be noted here that Court did not prevent the parties from leading evidence at the trial with regard to the question of "Serai". The non-framing of a specific issue in such circumstances is inconsequential. Needless to emphasize that if issues are not framed but allegations made in the plaint are challenged in the written statement and Court has allowed evidence to be led, then a decision rendered without framing of the issues is not illegal. In this view of the matter, I am fortified by the observations made in Fazal Muhammad Bhatti and another v: Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018.
9. Adverting to the objection raised by the petitioners regarding non-compliance: of the provisions of Order XLI, rule 31, C.P:C., I find that learned Appellate Court was alive to the situation and the issue involved has been dealt with and decided in a careful manner. The Appellate Court had given its findings on all the points of controversy and no prejudice seems to have been caused to the petitioners. 5o far as the question of giving issue-wise findings by the Appellate Court is concerned, the same is not the requirement of law under Order XLI, rule 31, C.P.C. as held in Umer Din v. Ghazanfar and 2 others 1991 SCMR 1868.
10. As far as the question regarding remand of the case in terms of Order XLI, rule 25, C.P.C. is concerned, powers under rule 25 are discretionary and, as such, where despite absence of an issue on a particular point, the parties have led evidence with regard to it, or where the lower Court has given a finding on the point despite the absence of a correct issue respecting it or where though no specific issue was raised, the matter was decided without objection or where despite absence of an issue, the parties had understood each other's case or where the entire evidence is available on record or where the Appellate Court can itself come to a decision on the point, remand under rule 25 will not be ordered.
11. Both the courts below have given exhaustive judgments after due appraisal of evidence on the file and after adjudging the matters from all angles. There appears to be no legal defect in their judgments, which are in consonance with the evidence on the file. The conclusion of facts arrived concurrently by both the lower Courts is not open to challenge in civil revision, particularly when no specific misreading or non-reading of evidence has been pointed out.
12. Pursuant to above discussion, I find that there is a concurrent finding of facts against the petitioners and the High Court in exercise of its revisional jurisdiction would not interfere in the concurrent findings of the Courts below. Learned counsel for the petitioners has not been able to point out that impugned judgments and decrees of the courts below being opposed to evidence on the file and the law applicable are not sustainable. Learned counsel could not point out any illegality or jurisdictional defect in the impugned judgments and decrees and miserably failed to persuade the court to interfere with the same. The civil revision having been found destitute of substance, stands dismissed with no order as to costs.
M.B.A./126/P Petition dismissed.