BASHIR AHMED vs Mst. TAJA BEGUM and others

ORDER

' JAWWAD S. KHAWAJA, J.---The petitioner impugns the concurrent judgments of the three Courts below, whereby a suit for declaration filed by him was dismissed and the dismissal affirmed. The facts of the case have been duly noted in the said judgments. The same, therefore, need not be reproduced in extenso. It will suffice for the present to note that the issue in contention is whether the petitioner/plaintiff is owner of the disputed property as claimed by him but denied by the respondents/ defendants.

2. Learned counsel for the petitioner argued the case at great length without appreciating the remittance of the jurisdiction under Article 185(3) of the Constitution. He was repeatedly asked to advert to any legal infirmity or jurisdictional error in the impugned judgments and in particular, in the appellate judgment dated 25-9-2008 passed by the learned Additional District Judge, Rawalpindi. He was not in a position to do so. He then submitted that the judgments of the learned Courts below were perverse, but were unable to show any such perversity. In our opinion, far from being perverse, the impugned judgments are lucid, well written and based on sound reasoning. In particular, we advert to paragraph 7 of the appellate judgment which contains cogent reasons for dismissing the appeal filed by the petitioner. For ease of reference, paragraph 7 ibid is reproduced below:- "7. It was contended by the learned counsel for the appellant that the learned trial Court did not take into consideration the documentary evidence produced by the appellant which is Exh.P2 to Exh.P18. The plaintiff claimed as exclusive owner of the suit land and in this regard the issue No,1 was contested. Sarfraz appeared as P. W.1 whereas Muhammad Hussain entered the witness box as P.W.2 Exh.P2 is the copy of Misal Haqiyat for the year 1956-57. Sarfraz P.W.1 stated that the property in question was owned by one Hayat Bakhsh son of Azeem in 1956-57 and thereafter it went to the ownership of the appellant. He further stated that this land was included during "Bandobast" in the Abadi of the village in the year 1955-56. He further deposed that Qadir Bakhsh the paternal grandfather of respondents Nos.1 and 2 had come to village Narar in the year 1919-20 and that Nathu Khan father of the plaintiff gave him 5 marlas of land for temporary residence but thereafter the respondents made encroachment to his land. He stated in cross-examination that Nathu Khan had died in 1932-33 and that at the time of his death the disputed houses were in possession of Muhammad Afzal. It means since 1932-33 the land in question was in occupation of Muhammad Afzal and others and not the plaintiff or his predecessor. He also admitted that in 1955-56 defendant I raised construction over the suit property but no objection was raised. He also admitted that even in 1973 some construction was made by the defendants but without any objection. He also admitted that Khasra No,261 is adjacent to disputed Khasra No,229 the demarcation of which has not been made so far. Muhammad Hussain P.W.2 only stated that the disputed property was owned by Nathu Khan and now the plaintiff was its owner. As per plaintiff own document Exh.P2 the disputed Khasra number is recorded as "Gair Mumkan Abadi" and is owned by the residents of the village. Likewise according to the copy of Jamabandi for the year 1993-94 Exh.P3 the land in question is recorded as "Maqbuza Bashindgan Deh." So was the situation of the disputed Khasra number as per copy of Jamabandi Ex.P6 pertaining to year 1884-85. So it cannot be said that this Khasra number was exclusive [sic] owned by Nathu Khan father of the appellant. There is copy of Mutation No,506 for the year 1932-33 Exh.P9. According to this mutation of inheritance the disputed Khasra number is not recorded in this mutation showing the exclusive ownership of Nathu Khan in respect of disputed Khasra number. Even also as per copy of Khasra Gardavri for the year 2003-05 Exh.P12 Khasra No,229 is owned by "Bashindgan Deh" and no where it was mentioned that the plaintiff was exclusive owner of the suit property. It means this Khasra number is forming part of Khewat No,213 according to Jamabandi for the year 1994-95 Ex.P3 and is recorded in possession of "Bashindgan Deh." It means besides the appellant there are other co- shares in the disputed Khasra number. It is well-settled principle of law that every co-sharer is co- owner of each and every inch of a joint Khewat and no co-sharer can claim exclusive ownership over number Khasra forming part of a joint Khata. The learned trial Court had rightly held that the appellant is not exclusive owner of the disputed property."

' It will be seen from the above extract that the Court appraised the evidence in depth and drew the proper conclusions from the same. We could not find any error in the said judgment, and nor could any error be pointed out by learned counsel.

3. Learned counsel for the petitioner then contended that the respondents/defendants had only stated that they had purchased 5 marlas out of the disputed property from the predecessor-in- interest of the petitioner. From this statement, learned counsel for the petitioner wanted the Court to infer that the remaining land belonged to the petitioner. This is a totally misconceived and untenable submission. The fact that 5 marlas out of the disputed plot was purchased by the respondents/defendants, does not in any manner prove that the petitioner was the owner of the remaining land in possession of the respondents/defendants. We have also noted that the revenue record was minutely examined by the learned appellate Court and correct and logical inferences were drawn from the same. It was rightly held that Exh.P-2 showed the Abadi Deh to be in occupation of the Bashindgan of the village. Learned counsel for the petitioner kept insisting that the term Bashindgan should be treated as the equivalent of Malikan. When asked to show any law, precedent or other legal basis for his submission, he was unable to do so. We are quite clear in our mind that the term Bashindgan means all those who are residents of a village and are part of the Abadi Deh. There is no warrant at all for the plea that only the malikan (owners) in the estate can be treated as residents of the village.

4. After considering the submission of learned counsel at length and after examining the record, we can only state that while exercising jurisdiction under Article 185(3) of the Constitution, we do not act as a Court of first appeal. The need for making this observation is being felt by us, because learned counsel for the petitioner was unable to draw a distinction between a first appeal under section 96 of Code of Civil Procedure and a petition seeking leave to appeal under Article 185(3) of the Constitution. We are, therefore, compelled to explain what should be self-evident from a plain reading of the various legal provisions relating to appeals.

5. Section 96, C.P.C. In relevant part provides as under:- "96. Appeal from original decree.---(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court."

This provision enables the appellate Court to take a second look at all legal and factual aspects of a case brought it by a party aggrieved of the judgment of a trial Court. The appellate Court not only can but is required to reappraise the evidence and to thereby reach its own conclusion which may be different from the one arrived at by the trial Court.

6. A second appeal, however, is much more restricted in its scope compared to a regular first appeal. Section 100, C.P.C. Lays down the limits of jurisdiction of a Court in second appeal. It stipulates as under:- "100. Second appeal.---(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court, on any of the following grounds, namely:-

(a) the decision being contrary to law or to some usage having the force of law;

(b) the decision having failed to determine some material issue of law or usage having the force of law;

(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits."

7. At this point, we may note that first and second appeals are available (wherever provided by law) as of right. In the present case, a second appeal was not available to the petitioner. He, therefore, invoked the revisional jurisdiction of the High Court under section 115, C.P.C. . This jurisdiction is, in material respects, even more restricted than the appellate jurisdiction under section 100, C.P.C., because a judgment can be assailed through a revision petition only where it suffers from a jurisdictional error of the nature set out in clauses (a),(b) and (c) of section 115, C.P.C.

8. As opposed to first and second appeals, provided for in sections 96 and 100, respectively of the C.P.C., the provisions of Article 185(3) of the Constitution do not confer any right on an unsuccessful litigant, to prefer an appeal to this Court. He must seek leave to appeal, and in order to be granted such leave, a petitioner under Article 185(3) ibid, is obliged to show something at least equivalent to if not more stringent than what is required by section 100 or 115, C.P.C. It is this requirement which lays down the minimum standard and sets the bar for granting leave to appeal under Article 185(3) ibid. In the context of the present case, we would like to examine the criteria for determining whether leave to appeal should or should not be granted. This necessarily will have to be determined in the light of the facts and circumstances of this petition and, therefore, exhaustive rules of universal application may neither be appropriate nor possible.

9. Guidance in laying down criteria for grant of leave to appeal, can, however, be taken from the provisions of section 96 and section 100 of the Code of Civil Procedure. One rule which can be safely laid down is that in order to be granted leave to appeal under Article 185(3) of the Constitution, at the very least, the petitioner should satisfy the requirements of section 100, C.P.C. In the present case, it is quite obvious to us that the decisions of the learned Courts below are neither contrary to law nor any usage having the force of law. Likewise, we have not been shown that the impugned judgments have omitted to decide "some material issue of law or usage having the force of law." We may note at this stage, that not all instances of a Court's failure to decide an issue will suffer for the purpose of allowing an appeal. It is only a failure to decide material issues which will enable an aggrieved party to invoke the jurisdiction of an appellate Court. The question of materiality, that is, whether or not an issue is of a material nature, will depend upon whether the ultimate decision of the Court of first appeal would have been different, if the omitted issued had been determined by it. Thus, in order to succeed in second appeal on ground (b) of subsection (1) of section 100, C.P.C., an appellant would have to show that the Court of first appeal would have reached a different conclusion, had it not failed to decide the issue of law or usage specified in ground (b) ibid.

10. We now take up for consideration ground (c) given in subsection (1) of section 100, C.P.C. This provision requires an appeal, to show firstly that there has been a substantial error or defect in procedure and secondly that such a substantial error could have resulted in an erroneous or defective decision of the case. Illustrations to highlight such substantial errors are not hard to find.

However, no such substantial error arises from the judgments assailed before us.

11. In view of the foregoing discussion, we are not in any doubt that the petitioner has not been able to cross even the minimum standards set out in section 100, C.P.C., which are applicable to second appeals. We, therefore, hold that this petition for leave to appeal is without merit. In this view of the matter, we are not, called upon to determine the criteria (in addition to the grounds in section 100, C.P.C.) which must be met by a petitioner in order to be granted leave to appeal under Article 185(3) of the Constitution. We leave this matter to be decided at a later date in an appropriate case. We would, however, observe that learned counsel must bear in mind the relevant legal provisions and in particular, Sections 100 and 115, C.P.C. While considering the advisability of filing a petition under Article 185(3) of the Constitution.

12. In the foregoing circumstances, we find no merit in this petition which is dismissed with costs throughout. Leave to appeal is refused.