AASA Versus IBRAHIM

The judgment of the Courts below are at variance. The learned Qazi, Kech, Turbat, decreed the suit but the same was reversed by learned Majlis-e-Shoora, Mekran Division at Turbat. Hence this revision petition under section 115, C.P.C. has been filed whereby, the judgment and decree, dated 5-3-1999 passed by the learned Majlis-e-Shoora has been assailed.

2. Briefly stated the facts of the case are that the petitioner by amended plaint filed the suit in the Court of Qazi, Turbat, in respect of the property, the description of which has been given in the plaint with the averments that the same was owned, constructed and possessed by him. It has been stated that the respondent/defendant illegally encroached upon the petitioner's property by extending the area of his house. The suit was contested by the respondent/defendant by filing written statement.

3. Out of pleadings of the parties learned Qazi, Turbat, framed as many as four issues. The petitioner/plaintiff in support of his claim produced six witnesses and also got recorded statement of his attorney. On the other hand two witnesses were examined from the side of respondent/defendant and also got recorded statement of attorney. The learned Qazi on the assessment of the evidence brought on record decreed the suit in favour of the plaintiff/respondent on 27th January, 1999 and also directed possession of the disputed property although the suit was for declaration and permanent injunction. Aggrieved by the above judgment and --decree the petitioner/appellant preferred an appeal before the learned Majlis-e-Shoora, Mekran Division at Turbat.

4. The learned Majlis-e-Shoora after hearing the argument of learned counsel for the parties and examining the record by accepting the appeal dismissed the suit which was filed by the plaintiff/respondent.

The operative part of the impugned judgment is reproduced below for the sake of facility:-------

The above judgment and decree is the subject matter of present revision petition which has been filed under section 115, C.P.C.

5. I have heard Mr. Tahir Muhammad Khan, Advocate learned counsel for the petitioner and Malik Sikandar Khan, Advocate learned counsel for the respondent and with their assistance have perused the record.

6. It is settled proposition of law that in the event of conflict of judgments view expressed by the Appellate Court should ordinarily be preferred unless the same is contrary to evidence on record or in violation of the settled principles for administration of justice: In the present case it is not shown that the findings of fact recorded by the Appellant Court are perverse, arbitrary or capricious. The view taken by the learned Majlis-e-Shoora is supported by the evidence while learned trial Court has neither properly discussed the evidence nor the provisions of Order 20, Rule 5, C.P.C. have been complied with. The suit was for declaration and permanent injunction while the trial Court has also directed the possession to be handed over to the respondent/plaintiff. Prima facie the suit without seeking possession and in the circumstances of case was not maintainable.

7. The learned Majlis-e-Shoora have analysed the evidence on record and this Court cannot substitute the conclusion which was reasonably drawn by the said Shoora by proper appreciation of the evidence. If no error of law e or defect in procedure had been committed in-coming to a finding of fact, the High Court cannot substitute such a finding merely because a different finding could be given.

8. According to the provisions of Dastoor-ul-Amal Dewani, Riasat Kalat, 1952 the Court of Qazi is hound to decide the matter in accordance with Shariat. The learned counsel has not been able to point out any jurisdictional defect in the impugned judgment and decree of the Appellate Court or any irregularity or illegality warranting interference in this matter in C the exercise of revisional jurisdiction.

9. For what has been stated above, I do not find any merit in this revision petition and the same is accordingly dismissed. No order as to costs.

Q.M.H./M.A.K./8/Q ?????????????????????????????????????????????????????????????? Revision dismissed