ALI MUHAMMAD Versus MUHAMMAD NAWAZ
The brief facts out of which the present revision petition arises are that the respondent No.1 and Ghulam Abbas are two real brothers who are owners of land measuring 55 Kanals 12 Marlas in square No.23 Mauza Shah Murad, Tehsil and District Jhang in equal shares which was being cultivated by Ghulam Farid tenant up till‑ Kharif 1966. In Rabi 1967 the petitioner took possession of the disputed land alongwith his brother Khuda Bakhsh and started cultivating it as tenant. Subsequently in the year 1971 respondent No.1 and his brother Ghulam Abbas agreed to sell their land mentioned above to the petitioner and his brother Khuda Bakhsh for a consideration of Rs.31,250 out of which they received Rs.30,000 as earnest money and then executed agreement to sell dated 26‑11‑1971. Ghulam Abbas brother of the respondent No.1 got his share of land measuring 27‑Kanals 16‑Marlas exchanged with the land of Khuda Bakhsh brother of petitioner through registered exchange deed dated 12‑9‑1984. Respondent No.1 also exchanged his share of land i.e. the suit land with respondent No.2 through exchange deed dated 3‑11‑1984. The petitioner filed suit for declaration on 12‑11‑1984 to the effect that he has become owner of the suit land by means of adverse possession for a period of more than 12 years and the exchange of land between respondents through exchange deed dated 3‑11‑1984 is illegal, void, and ineffective against the rights of the petitioner and is also based on fraud and mala fide. The petitioner also sought perpetual injunction restraining the respondents from interfering into his possession over the suit land in any manner, before the Civil Judge 1st Class, Mang. The respondents filed written statement controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed the following issues:‑
(1) Whether the‑ plaintiff is owner in possession of suit land to adverse possession for a period of extending over 12 years? OPP
(2) Whether the alleged exchange deed dated 3‑11‑1984 between the defendants is illegal, against facts, mala fide and is ineffective on the rights of the plaintiff? OPP
(3) Whether the plaintiff has got no cause of action or locus standi to file the present suit? OPD
(4) Whether the plaintiff is estopped to file the suit because of his words and conduct? OPD
(5) Whether the suit is not maintainable in its present form? OPD
(6) Whether the defendants are entitled to special costs under section 35‑A C.P.C.? OPD
(7) Relief.
The Trial Court dismissed the suit vide judgment and decree dated 30‑5‑1988. The petitioner being aggrieved filed appeal before the Additional District Judge, Jhang who dismissed the same vide judgment and decree dated 19‑7‑1989, hence, the present revision petition.
2. The learned counsel of the petitioner submits that petitioner firstly took the possession of the land by force but subsequently respondents executed agreement to sell with the respondents for a consideration of Rs.31, 250. The respondents received Rs.30,000 from the petitioner through agreement to sell dated 26‑11‑1971, therefore, petitioner is in possession of the land as owner after the execution of the agreement to sell. The agreement to sell was not denied by the respondents and earnest money amounting to Rs.30,000 was also not denied by the respondents. The trial Court accepted this fact in paras. 5 and 6 in the impugned judgment of the, Trial Court. He further submits that judgments of both the Courts below are result of misreading and non‑reading of the record. He further submits that the possession of the petitioner over the disputed land became legal after the execution of the agreement to sell but this fact was not considered by both the Courts below in true perspective. He further submits that this Court has ample power to convert the suit for specific performance alternatively as the contents of the agreement to sell is specifically mentioned in paras. 5 and 6 in the plaint. In support of his contentions, he relied upon Muhammad Siddique v. Muhammad Akram (2000 SCMR 533). He further submit that this Court has ample power to grant relief which was not claimed by the petitioner while exercising inherent jurisdiction. In support o his contentions he relied upon. M. Sadiq v. Abdul Ghafoor and others (2000 MLD 1208).
3. The learned counsel of the respondents submits that in view of the law laid down by the Honourable Shariat Appellate Bench of the Supreme Court in Maqbool Ahmad's case (1991 SCMR 2063), the plea of adverse possession is no more available to the petitioner. In support of his contentions, he relied upon Mst. Walayat Jan and others v. Habib Ullah Khan and 4 others (1992 MLD 751), Abdul Latif and 5 others v. Manzoor Ahmad and others (1993 MLD 177), Muhammad Sharif v. Bholu and others (1994 MLD 81), Muhammad Aslam and another v. Malik M. Sarfraz (1996 MLD 1216). He further submits that petitioner filed C.M.No.1‑C of 1991 for the amendment of the plaint which was dismissed by this Court vide order dated 21‑10‑1997, therefore, this Court has no jurisdiction to allow the amendment at this stage on the well‑known principle of res judicata. In support of his contention, he relied upon the case of Karachi Catholic Cooperative Housing Society Ltd. v. Chrisol Miranda and others (2001 MLD 1462). He further submits that petitioner admitted in the contents of the plaint that petitioner took the possession by force and whole plaint of the petitioner reveals that petitioner claimed his right on the basis of adverse possession, therefore, petitioner is not entitled to wriggle out from his admission. In support of his contention, he relied upon the case of Haji Hakim Ullah v. Saghiruddin and 2 others (PLD 1975 Karachi 509). He further submits that petitioner inconsistent pleas. In support of his contention, he relied upon the following judgments:--
Ghulam Qadir v. Ahmad Yar and others (PLD 1990 SC 1049); Mira Khan v. Ghulam Farooq and others (1988 SCMR 1765); Farid Khan and 3 others v. Abdul Latif and others (PLD 1994 SC 353); Khuda Bakhsh and others v. Mureed and others (1999 SCMR 996); Abdul Majeed and 6 others v. Muhammad Subhan and others (1999 SCMR 1245) and Syed Ghulam Mustafa Shah and another v. Syed Muhammad Hussain Shah and 2 others (PLD 1993 Karachi 369).
He further urges that both the Courts below have given concurrent findings of facts against the petitioner, therefore, revision petition is not maintainable. In support of his contentions, he relied upon the following judgments:
Haji Rozi Gul v. Mst. Mumtaz Begum and others (1999 SCMR 1915) and Aziz Ullah Khan and others v. Gul Muhammad Khan (2000 SCMR 1647).
4. The learned counsel of the petitioner in rebuttal submits that petitioner is not debarred under the law to execute an agreement to sell with the respondents after taking possession of the land in question by force. He further submits that this Court has ample power to allow the petitioner to amend his suit as the contents of the agreement to sell is specifically mentioned in paras. 5 of the plaint.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
6. It is better and appropriate to reproduce the relevant paragraphs of the plaint alongwith the prayer clause of the plaint to resolve the controversy between parties:‑‑
The aforesaid paragraphs read with prayer clause clearly reveals that the petitioner had filed a suit on the basis of the plea of adverse possession. It is admitted fact that suit of the petitioner was dismissed and the appeal was also dismissed by the First Appellate Court. The plea of adverse possession after 31st of August, 1993 is no more in the field in view of the law laid down by the Honourable Supreme Court in Maqbool Ahmad's case (supra) (1991 SCMR 2063). In view of what has been discussed above, the contentions of the learned counsel of the petitioner qua the adverse possession is not sustainable in the eyes of law. It is also admitted fact that petitioner filed a, C.M. No. 1‑C of 1991 for amendment of the suit before this Court which was dismissed by this Court vide order dated 21‑10‑1997 with cogent reasons. It is admitted fact that petitioner did not file any review petition against the order dated 21‑10‑1997 as well as did not challenge the same before the Honourable Supreme Court, therefore, the order dated 21‑10‑1997 is final between the parties. The principle of res judicata is attracted in all force. In arriving to this conclusion, I am fortified by the following judgment: ‑‑
Karachi Catholic Cooperative Housing Society Ltd. v. Chrisol Miranda and others (2001 MLD 1462).
It is also admitted fact that both the Courts below have given concurrent findings of fact against the petitioner: The learned counsel of the petitioner failed to point out any illegality or infirmity in the impugned judgments or impugned judgment were passed by the Courts below in violation of principles laid down by the superior Courts. It is an established proposition of law that findings on question of, facts or, of law, howsoever erroneous, same may be recorded by the Court of competent jurisdiction, cannot be interfered 'with by' the, High 'Court.' in exercising of its revisional jurisdiction; under section 115, C. P. C., unless Such findings suffers from jurisdictional defect illegality or material irregularity, as per principle laid down by the Privy Council in N.S. Vengatagiri Ayyaagar and another v. The Hindu Religious Endowments Board, Madras (PLD 1949 Privey Council 26). The relevant observation is as follows:‑ "this section empowers the High Court to satisfy itself upon three matters; (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected tile ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of tile subordinate Court upon questions of fact or law."
No jurisdictional defect has, of course, been pointed out in this case and, similarly, no let gal infirmity in the .impugned judgments has been pointed out.
In view of what has been discussed above, this revision petition has no merits and the same is dismissed.
Q.M.H./M.A.K./A-396/L Revision dismissed.