NAZIM-UD-DIN and others vs Sheikh ZIA-UL-QAMAR and others

ORDER

1. ' MIAN SAQIB NISAR, J.---Respondents brought a suit for partition qua the suit house claiming that they being the successors-ininterest of Masih-ud-Din are co-sharers in the house to the extent of 17/24. The appellants/defendants contested the suit; denied the ownership (co-ownership) of the respondents and asserted themselves to be the sole owners and also set out the defence of being in adverse possession of the property. After the parties were put to trial the learned Civil Judge vide judgment and decree dated 30.1.1994 dismissed the suit holding that the respondents had failed to prove themselves to be co-sharers of the property and thus had no right to seek partition thereof.

2. This remained to be the fate of the appeal filed by the respondents. However, in the revisional jurisdiction of the learned High Court when invoked by the respondents, the learned Judge-in- Chambers after scanning the entire evidence on the record, particularly the registered documents duly admitted in evidence and exhibited without any objection on behalf of the appellants came to the conclusion that Masih-ud-Din, the predecessor-in-interest of the respondents was the co- sharer of the property to the extent of 17/24. In this context the earlier litigation which culminated into the decree dated 4.11.1946 and the registered instrument executed on behalf of Mst. Jano, the predecessor-in-interest of the appellants dated 3.5.1952 were conspicuously taken into account by virtue whereof Mst. Jano only claims herself to be the co-owner of the property to the extent of 7/24. This credible documentary, evidence has been in a way overlooked by the courts below, therefore the concurrent findings of fact being erroneous on account of misreading and non- reading of the evidence were not sacrosanct and did not preclude the learned High Court from interfering in its revisional jurisdiction to correct such factual error which arose on account of the amiss mentioned above. It is settled law that ordinarily the revisional court would not interfere in the concurrent findings of fact recorded by the first two courts of fact but where there is misreading and non-reading of evidence on the record which is conspicuous, the revisional court shall interfere A and can upset the concurrent findings, as well as where there is an error in the exercise of jurisdiction by the courts below and/or where thecourts have acted in the exercise of its jurisdiction illegally or with A material irregularity. In this context, if need be, reliance can be placed upon Federation of Pakistan through the General-Manager, N. W. Railway, Lahore v. Ali Ihsan (PLD 1967 SC 249), Rozi Khan and others v. Nasir and others (1997 SCM R 1849), Malik Muhammad Khagan v. Trustees of the Port of Karachi (KIIT) and another (2008 SCM R 428), Nabi Bakhsh v. Fazal Hussain (2008 SCM R 1454), Nazir Ahmad and another v. M. Muzaffar Hussain (2008 SCM R 1639), Asmatullah v. Amanat Ullah through Legal Representatives (PLD 2008 SC 155), Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCM R 1630), Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad (2012 SCM R 730), Noor Muhammad and others v. Mst.

3. Azmat-e-Bibi (2012 SCM R 1373), Mandi Hassan alias Mehndi Hussain and another v. Muhammad Arif (PLD 2015 SC 137) and lqbal Ahmed v. Managing Director Provincial Urban Development Board, NWFP Peshawar and others (2015 SCM R 799). It may further be mentioned that the first two courts have failed to consider various important documents (which have been taken into account by the learned High Court in the revisional jurisdiction) in their true perspective, rather have misinterpreted them. These documents are the decree of the Civil Court dated 4.11.1946 and the registered document admittedly executed by Mst. Jano dated 3%5.1952 in which she asserted herself to be the co-sharer of the property only to the extent of 7/24 and never claimed the full ownership of the property or disputed the co-ownership of the present respondents. This latter document having been executed by Mst. Jano has all along been in her knowledge and obviously the appellants being her successors would have had knowledge of the same and it is not disputed that the document was a C result of any fraud and misrepresentation. Still this document was never assailed by the appellants by seeking its cancellation in terms of section 39 of the Special Relief Act, 1877. They are now estopped from claiming any share in the property over and above 7/24. It may be reiterated that as the document was in their knowledge throughout and was left outstanding, thus for all intents and purposes, the rule of acquiescence, waiver and estoppel shall be attracted to their position and they are precluded from denying the co-ownership of the respondents to the extent of 17/24 in the property in question. Owing to the aforementioned omissions and commissions of the courts below in reading the evidence on the record and proper exercise of jurisdiction by the learned revision Court, the latter has aptly interfered with the two concurrent verdicts. No case for interference has been made out. Dismissed accordingly.