BASHIR HUSSAIN Versus MUHAMMAD TUFAIL
ORDER
The brief facts out of which present revision petition arises are that the petitioner-plaintiff filed a suit for permanent injunction in the Court of Civil Judge, Sheikhupura against the respondent-defendant. The contents of plaint reveals that the petitioner-plaintiff is in possession of 15 Marlas land which is situated at Ajnianwala Tehsil and District Sheikhupura bearing Square No.145 Killa No.22/2. The land in-question was allegedly allotted to the petitioner-plaintiff under Scheme No.VII of the Rehabilitation Department and the respondent-defendant has no concern whatsoever with the suit property. The suit filed by the defendant was dismissed, therefore, the defendant-respondent illegally and forcibly want to dispossess the petitioner-plaintiff for which he has no right, therefore, the respondent-defendant was asked not to interfere in the possession of petitioner-plaintiff, but he refused the same, hence the suit. The respondent-defendant filed written statement controverting the allegations levelled in the plaint. Out of pleadings of the parties, the learned trial Court framed the following issues:--
ISSUES:
(1) Whether the plaintiff has no cause of action and suit is false and is not maintainable in its present form? OPD
(2) Whether the plaintiff is estopped by his words and conduct has not come to the Court with clean hands? OPD
(3) Whether the plaintiff is owner in possession of the suit property under Scheme VII of the Rehabilitation-Department and the defendant wanted to interfere in the suit property through unlawful or illegal means? OPP
(4) Relief.
The learned trial Court decreed the suit vide judgment and decree dated 29-3-2004. The respondent-defendant being aggrieved preferred an appeal before the learned Addl: District Judge, Sheikhupura, who accepted the same vide judgment and decree dated 26-7-2004 and dismissed the suit of the petitioner-plaintiff. Hence, the present revision petition.
2. The learned counsel of the petitioner-plaintiff submits that the First Appellate Court erred in law to reverse the findings of the learned trial Court without adverting to the reasoning. He further submits that the First Appellate Court did not give issue-wise findings; therefore, the impugned judgment of the First Appellate Court is not sustainable in the eye of law. He further submits that the First Appellate Court wrongly construed the documentary evidence of the petitioner-plaintiff; therefore, the impugned judgment of First Appellate Court is the result of misreading and non-reading of the record. He further submits that the land in-question was allotted to the petitioner-plaintiff under Scheme No.VII on 23-12-1968 on the basis of which name of the petitioner was entered in Rozenamcha Waqiati which is Exh.P.7 before the learned trial Court and is at page 59 of this file. He further submits that the name of the petitioner is also mentioned as owner of the land in-question in Register Haqdaran-zamin, which is Exh.P.8 for the year 1990-91 which is at page 60 of this file. He further submits that the name of the petitioner is also mentioned as owner of the land in-question in Gardawari Exh.P.5, which is at pages Nos.62 and 73 of this file. He further submits that the name of the petitioner is also mentioned in Register Haqdaran-zamin for the year 1991-92 which is at page No.74 of this file. He further submits that the First Appellate Court did not consider the aforesaid documents in its true perspective; therefore, the judgment of First Appellate Court is the result of misreading and non-reading of record.
3. I have given my anxious consideration to the contention of learned counsel of the petitioner and perused the record.
4. It is pertinent to mention here that Issue No.3 is the material issue to resolve the controversy between the parties. The First Appellate Court after reappraisal of evidence has reversed the findings of Issue No.3 with cogent reasons. It is better and appropriate to reproduce the basic facts on Issue No.3 to resolve the controversy between the parties:--
(1) Paragraph No.1 of the plaint reveals that the petitioner claimed to be owner of the land in-question under Settlement Scheme No.VII dated 23-12-1968, which is (Exh.P.7).
(2) The petitioner-plaintiff failed to produce any order passed by the Settlement Department in favour of the petitioner regarding to the land in-question. The status of land in-question in an agricultural nature.
(3) The Settlement Scheme No.VII is with regard to only and only residential property, but the petitioner-plaintiff is local person and is not displaced person, therefore, under Settlement Scheme No.VII, local is not entitled for allotment of any evacuee land.
(4) Writ Petition No.743-R of 1980 was filed against the petitioner and parties were directed to maintain the status quo meanwhile, vide order dated 6-10-1980 which is at page No.76 of this file.
(5) The aforesaid writ petition was finally decided by this Court vide judgment dated 17-1-1994, which shows that the case pertaining to the land of Ajnianwala was remanded to Board of Revenue/Chief Settlement Commissioner for entrusting it to notified officer for decision afresh.
(6) The petitioner has produced as mentioned above copies of mutations that the petitioner has purchased 10 Marlas land from Mst. Bashiran Bibi.
5. It is no doubt that the name of respondent is mentioned as long standing and he was in possession of the land in question as tenant as is evident from No.D-5. The entries of Khasra Gardawari in favour of the petitioner-plaintiff are based on erroneous order of D.C., which is already set aside by the higher forum, therefore, entries of Haqdaran-zamin are contrary in copies produced by the parties. The land is owned by the Provincial Government. The physical possession of the petitioner upon the suit-land is also remained unproved in view of Exh.P.1 and Exh.P.8. The respondent filed a suit for permanent injunction, which was dismissed on 31-5-1993 but the parties failed to place on record relevant copies of pleadings.
6. In case, the aforesaid facts be put in juxta-position, then it is crystal clear that the petitioner failed to place on record any order passed by the Settlement Authority in favour of the petitioner, therefore, the petitioner failed to prove his case in terms of paragraph No.1 of the plaint. It is settled principle of law that the parties are bound by their pleadings as per principle laid down by the Honourable Supreme Court "Mst. Murad Begum and others v. Muhammad Rafiq and others" (PLD 1974 SC 322). It is also settled principle of law that the petitioner/plaintiff has to prove his own case and to succeed on the basis of his own documents and not on the weaknesses of defendant's case, but he failed to bring on record any documents of title to show that the petitioner is owner of land in-question, therefore, entries in the Register Haqdaran-zamin on the basis of any alleged order passed by the Settlement Department in favour of the petitioner, do not prove the case of title of the petitioner with regard to land in-question. The Khasra Gardawari as well as Register Haqdaran-zamin in the absence of basic documents of title, do not prove the case of the petitioner and not existing and Court was justified to ignore documentary evidence which is based on order, which is not in the record. As regarding finding of First Appellate Court on Issue No.3, it may be noticed that in his capacity as the First Appellate Court possesses the jurisdiction to come to his own conclusion on the basis of evidence adduced before the learned trial Court by the parties and resultantly, he could competently reverse the findings of the trial Court on the question of fact involved in Issue No.3. It is an established proposition of law that findings on questions of fact or of law howsoever, erroneous the same may be recorded by a Court of competent jurisdiction, cannot be interfered with by the High Court, in exercising of its revisional jurisdiction, under section 115 of C.P.C., unless such findings suffer from jurisdictional defect, illegality or material irregularity. The Privy Council has also laid down parameters to interfere in the findings of the Courts below while exercising power under section 115 of C.P.C. in "N.S. Vankatagiri Ayyangar and another v. The Hindus Religious Endowments Board Madras" (PLD 1949 PC 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 provisions of law, or with material irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the 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 the subordinate Court upon questions of fact or law."
The judgment of the Privy Council was considered and relied upon by this Court in "Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mehmood." (1985 CLC 657).
5. It is pertinent to mention here that the judgment of this Court is upheld by the Honourable Supreme Court in C.P. No.1146-1984 vide judgment dated 31-3-1985 which was reaffirmed and approved by the Honourable Supreme Court in "Board of Intermediate and Secondary Education, Lahore v. Ghulam Qadir" (PLD 1988 SC 625). The learned counsel of the petitioner failed to bring the case within the principle prescribed by Privy Council in the aforesaid judgment. The learned counsel of the petitioner also failed to point out any piece of evidence, which was non-read and misread by the First Appellate Court. Coupled with the facts that the material documents with regard to title of the land in-question were not produced by the petitioner, therefore, I am not inclined to interfere in the findings of the facts of the First Appellate Court as I do not find any infirmity and illegality in the impugned judgment of First Appellate Court which is passed after reappraisal of evidence on record in accordance with law while exercising power under section 96 of C.P.C.
In view of what has been discussed above, this revision petition has no merit and the same is dismissed.
M.H./B-78/L Petition dismissed.