SHAH MUHAMMAD Versus HABIBULLAH KHAN

1. ABDUL KADIR SHAIKH, J.- - This appeal by leave is directed against the judgment of a learned Judge of Sind High Court, dated 10-2-1972 allowing a second appeal filed by the respondents and in result setting aside the decree passed in appellant's favour by the trial Court which was upheld on appeal by the Additional District Judge, Sukkur.

2. The dispute relates to agricultural land situated in Deh Vakro Jagir, Taluka and District Shikarpur which originally belonged to Sardar Muhammad Bux Khan, father of respondent No.1. According to the appellant, his father Muhammad Ali, purchased the suit land from Sardar Muhammad Bux Khan for Rs.2,000 through sale-deed, dated 22-8-1917, and after the death of his father appellant was the sole surviving heir, and he has always remained in possession of the suit land throughout. Afterwards, the land was mutated in the record of rights in his name in 1954, but subsequently the Special Mukhtiarkar without notice to him set aside the mutation and substituted the names of the respondents as the owners. He filed an appeal against the order of the Special Mukhtiarkar, but was directed to file a civil suit in order to establish his title and accordingly in January, 1962 appellant filed Suit No. 4 of 1962 in the Civil Court, Shikarpur for declaration and injunction against the respondents.

3. Learned trial Judge decreed the suit in appellant's favour and the appeal filed by the respondents was dismissed by the Additional District Judge, Sukkur by the judgment, dated 15-2-1965. However, on a second appeal by the respondents a learned Judge of Sind High Court set aside the judgments of the two Courts below and dismissed the suit of the appellant.

4. Leave to appeal was granted by this Court to the appellant in order to examine the submission made on his behalf that there was no justification whatsoever for interference with the concurrent finding of fact reached by the two Courts below.

5. Mr. S. Nasiruddin, learned counsel for the appellant referred to the entire record of the case in support of the submission that the findings of facts reached by the two Courts below are extremely legitimate and the learned Judge in the High Court has erred in law in reversing the concurrent findings just for the reason that he took a different view of the evidence recorded in the case.

6. We find that the learned trial Judge held on the basis of documentary as well as oral evidence proved in the case the suit land remained in possession of plaintiff's father and the plaintiff since more than 40 to 50 years and even one of the defendants' witness D.W. Mehrab admitted this fact. The first appellate Court on re-appraisal of evidence upheld the conclusions reached by the trial Court. These findings of fact are based on proper and legitimate conclusions that can be drawn from the evidence recorded in the case and interference by the learned Judge in the High Court became a contrary view of evidence prevailed with him did not warrant interference by the High Court in a second appeal under section 100 of the Code of Civil Procedure. For these reasons, this appeal must succeed, and is accordingly allowed with the result that the impugned judgment of the High Court is set aside and the one passed by the learned trial Judge which was confirmed by the first appellate Court is upheld. The parties are, however, left to bear their own costs.

7. M.I./S-73/S Appeal accepted.