NABI BAKHSH Versus LIAQAT ALI

This Civil Revision impugns the judgment /decree, dated the 11th of ;March, 1986, of the learned Additional District Judge, Gujrat., whereby the petitioner's first appeal was dismissed.

2. . It was a suit for pre‑emption in which the only point canvassed before the lower appellate Court was about the improvements. A Local Commissioner was appointed at the instance of the petitioner‑ vendee and he assessed the cost of the improvements to be Rs.10,400. The break‑up included the cost of fifty trees at‑the rate of Rs.10 each. The lower appellate Court took the view that since the petitioner did not object to the report, nor did he call the Local Commissioner for cross‑examination, he had by his conduct virtually accepted the same and. that he could not claim anything more.

3. Sh. Abdul Aziz for the petitioner drawing attention td the finding of the trial Court submitted that a sum of Rs.1,1.400 was allowed to him only about the construction of the room and that there was no reference to the cost of trees in the jugement. He reiterated that oral testimony of D.Ws. in regard to the number of trees was not considered and that the same amounted to non‑reading of evidence.

4. On the other hand, Sh. Naweed Shahryar, Advocate seriously objected to the maintainability not only of the present revision petition but also the appeal before the learned Additional District Judge. He claimed that the Local Commissioner was appointed at the behest of the petitioner himself; that the break‑up of various items having been considered by him in the context of improvements, had allowed him cost of fifty trees at the rate of Rs.10 each; and that since the same was accepted by him without any demur, that was the end of the matter. Referring to the statements of D.Ws. 1 and 2 as also the written statement, he highlighted inconsistency in regard to number of the trees. In the written statement those were said to be 400, while D.W.1 told their number to be 150, and the petitioner himself as D.W. 2 stated in his testimony that those were 121 in all. It was argued that such an incoherent account of the total number of trees would reveal nothing but shakiness of the claim and that indeed there was no evidence bearing out the version made in the written statement. He added that the finding being one of fact was not assailable in the revision petition, and was not equally challengeable in the appeal because of conceptual acceptance of the Local Commissioner's report on the part of the petitioner.

5. It was not denied that the Local Commissioner 'was appointed on the asking of the petitioner; that he did not object to his report; and that he did not call him for cross‑examination. This attitude on the part of the petitioner would clearly lead to the inference that he had accepted the report as a sound piece of evidence on all the points raised in the context of claiming compensation for improvements. It could not have been assailed even in the first appeal nor in this Court by means of the present revision petition. D.Ws. 1 and 2 did not corroborate the number of trees (400) mentioned in written statement. Rather they reflected variance showing them either to be 121 or 150. The incoherence was obvious on the record making his case doubtful. After all it was a question of fact and the concurrent finding could not be possibly disturbed. The contention initially raised for admission of the revision petition that the evidence was misread was indeed not much supported by the record.

6. The revision petition is dismissed with costs.

H . B . T. /N‑101/L Revision Petition dismissed.