MUBARIK ALI through L.Rs, vs AMROO KHAN through L.Rs,
This petition for leave to appeal arises from a civil dispute concerning the ownership and possession of a house. The core legal question involves the scope of the High Court's revisional jurisdiction under Section 115 of the Code of Civil Procedure 1908, specifically whether it is permissible for the High Court to re-appreciate evidence and interfere with concurrent findings of fact made by the trial and appellate courts. The petitioners contend that the High Court exceeded its jurisdiction by setting aside a decree for specific performance based on an oral sale, which had been upheld by the lower courts after evaluating witness testimony. The Supreme Court granted leave to appeal to examine whether the High Court misread the evidence and whether it improperly interfered with factual findings that were supported by the record. The principle at issue concerns the limitations of revisional jurisdiction, emphasizing that a High Court should not substitute its own opinion for findings of fact merely because a different conclusion might be possible on the same evidence.
- Does the High Court have the jurisdiction under Section 115 of the Code of Civil Procedure 1908 to re-appreciate evidence and interfere with concurrent findings of fact?
- Can a High Court set aside a trial court's finding of fact merely because a second opinion on the material is possible?
- Section 115, Code of Civil Procedure 1908
ORDER
' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- This petition for leave to appeal has been filed against the judgment dated 29th October, 2001 passed by Lahore High Court, Lahore in Civil Revision No,700 of 1995.
2. Precisely stating the facts of the case are that a house constructed on 1-1/2 Marlas of land situated in Satrah Tehsil Daska, District Sialkot is the bone of contention between the parties. Amroo Khan, predecessor-in-interest of respondents filed a suit in 1969 for declaration that he was in possession of the house as a lawful transferee under Settlement Scheme No,7, against one Dhanney Khan and claimed an injunction that the later be restrained by way of perpetual injunction from dispossessing him from the property in dispute. The suit was decreed by learned Civil Judge, Daska vide judgment/decree dated 22nd February, 1969. Dhanney Khan challenged the judgment/decree of the trial Court before the learned District Judge, Sialkot through an appeal which was accepted on 20th March, 1970 and consequently the judgment and decree of the trial Court was reversed Amroo Khan predecessor-ininterest of respondents filed R.S.A. No,306 of 1970 before the Lahore High Court, Lahore which was accepted vide judgment dated 13th October, 1992 as a result whereof judgment/decree of the trial Court dated 22nd February, 1969 was restored.
3. It may be noted that after obtaining judgment/decree dated 22nd February, 1969 from the trial Court, in his favor, Amroo Khan predecessor-in-interest of the respondents sold the house to Mubarak Ali predecessor-in-interest of petitioners for a consideration of Rs,6,000, which was allegedly paid in presence of Ghulam Rasul and Abdul Aziz Butt. The total sale price was received by Amroo Khan but due to litigation the sale-deed could not be executed. However, on the acceptance of R.S.A. Filed by the Amroo Khan before the High Court, he refused to execute the sale- deed in favor of Mubarik Ali. As such Mubarik Ali filed a suit on 22nd February, 1993 for declaration and perpetual injunction or in the alternative for specific performance. Amroo Khan also filed a suit for possession on 3rd March, 1993 of the suit property along with permanent injunction against Mubarik Ali. As the subject-matter of both the suit was same, therefore, learned trial Judge consolidated both the suit with the consent of the parties and ultimately, after observing codal formalities i,e, framing of issues and recording of evidence of the parties, dismissed the suit of Amroo Khan and decreed the suit filed by Mubarik Ali, vide judgment, dated 13th April, 1994, and Amroo Khan was directed to execute the sale-deed in favor of Mubarik Ali as he has already paid the sale price of the suit property. Feeling dissatisfied Amroo Khan preferred appeal before the Additional District Judge, Daska, which has been dismissed vide judgment dated 29th January, 1995 and the judgment/decree of the trial Court has been maintained. Being aggrieved. Amroo Khan preferred Civil Revision No,700 of 1995 before the Lahore High Court, Lahore, which has been accepted by means of impugned judgment, as a result whereof judgment/decree of the trial Court dated 13th April, 1994 has been set aside. As such instant petition for leave to appeal has been filed.
4. Learned counsel contended that predecessor-in-interest of petitioners Mubarik Ali through evidence of Abdul Aziz and Ghulam Rasool has successfully established oral sale against consideration of Rs,6,000 between him and respondent Amroo Khan, in respect of disputed house.
Both the Courts i,e, trial and Appellate Courts, while believing the statement of witnesses concluded that the oral sale has A taken place between the parties but the High Court while exercising revisional jurisdiction under section 115, C.P.C. Re-appreciated the evidence itself and formed an opinion against the petitioners to the effect that no sale had taken place. According to him, jurisdiction of the High Court is confined which the parameters of section 115, C.P.C. And it has no jurisdiction to interfere in the findings of fact merely for the reason that on the basis of the material available on record, second opinion in respect of the same was also possible. He further contended that High Court has also misread the evidence because both the witnesses i,e, Abdul Aziz and Ghulam Rasool were consistent on the point that respondent had agreed to execute the sale-deed in favor of petitioner, after the decision of the case pending between him and Dhanney Khan, but their statement have been disbelieved for the reason that they have A not furnished the evidence in consonance to the contents of the plaint, whereas in the plaint it was specifically mentioned the sale-deed was to be executed by Amroo Khan but he refused to do so.
' After hearing learned counsel for the petitioners and having gone through the impugned judgment, we grant leave to appeal to examine the contentions noted hereinabove. Interim relief already granted on 12th December, 2001 to continue.